Karnataka High Court
M.R. Vasuki vs Karnataka Electricity Board on 4 February, 1992
Equivalent citations: ILR1992KAR690, 1992(2)KARLJ223
Author: Shivaraj Patil
Bench: Chief Justice, Shivaraj Patil
JUDGMENT Shivaraj Patil, J.
1. All these appellants were writ petitioners in Writ Petition Nos. 1877 to 1881 of 1988. The Writ Petitions were filed praying for the following reliefs:
(A) Issue a writ of certiorari or any other appropriate writ, order or direction quashing the Civil List (Gradation List) in the cadre of Assistant Accounts Officers as on 1-7-1987 under the Notification dated 14-9-1987 bearing No. Nil issued by the 1st respondent, produced herewith at Annexure-C, insofar as it relates to the rankings assigned to them at Sl.Nos. 36, 39 and 42 to 44 respectively:
(B) Issue a writ in the nature of mandamus or any other appropriate order, writ or direction directing the respondents 1 and 2 to prepare a fresh Gradation List in the Cadre of Assistant Accounts Officers in accordance with the principles laid down in Gonal Bhimapa v. The State of Karnataka reported in AIR 1987 SC 2359 and also in V.B. Badami v. The State of Karnataka, .
(C) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction further directing respondents 1 and 2 to consider their cases for promotion to the next higher cadres of Accounts Officers and Deputy Controllers of Accounts as and when the respondents 3 to 14 were promoted to the same and if found eligible, to give them proforma promotions to the said cadres with retrospective effect awarding all the consequential benefits flowing therefrom including the monetary benefits.
(D) Order costs of these writ petitions and such other and further appropriate orders in the interests of justice and equity.
2. The appellants contended that they were appointed as Direct Recruits to the post of Assistant Accounts Officer in the Karnataka Electricity Board (for short 'the Board') as per order dated 21-1-1977 along with five others; they satisfactorily completed the probation period of two years; the employees of the Board are governed by the Karnataka Electricity Board Recruitments and Promotions of the Board Service Regulations, 1960 (for short the Regulations); the said Regulations came into force with effect from 5-2-1960; the mode of recruitment to the post of Assistant Accounts Officer, is from two sources - one by promotion and another by Direct Recruitment in the quota prescribed for each category, there has been variation from time to time in the percentage of quota fixed for each of the category and with effect from 10-3-1976 the quota for Direct Recruitment and by promotion was fixed at 20% and 80% respectively.
Respondents 3 to 14 were promoted to the cadre of Assistant Accounts Officers between the period 1967 and 1969 from the cadre of First Division Clerks. Their promotion to the cadre of Assistant Accounts Officers was in excess of the Quota Rule prevailing during the relevant period. When this was the position the Board prepared the Gradation List of the Assistant Accounts Officers as on 1-1-1980 showing the names of the appellants at Sl.Nos. 160, 164 and 167 to 169 respectively. Objections were called for to the said Gradation List. The appellants and similarly placed persons filed their objections on 17-11-1980 contending that the Quota Rule was not followed; the Gradation List did not reflect the proper ranking of their seniority and that the principles laid down in the case of V.B. BADAMI v. STATE OF MYSORE AND ORS., were not followed. Thereafter another Gradation List was prepared as on 1-11-1983 showing the names of the appellants at Sl.Nos. 77, 81 and 84 to 86 respectively. Even to this Gradation List the appellants did file objections. No final Gradation List was prepared and published thereafter. Yet again, on 1-7-1987 the Board prepared and published the Gradation List on 14-9-1987 showing the names of the appellants at Sl.Nos. 36, 39 and 42 to 44 respectively.
Respondents 3 to 14 in view of their promotion to the cadre of Assistant Accounts Officer between 1967 and 1969, in violation of the Quota Rule, were further promoted to the next higher cadre of Accounts Officer and some of them Deputy Controller of Accounts. Thus, in short, the appellants contended that the promotions of respondents 3 to 14 made in violation of the Quota Rule governing them and placing them above the petitioners in seniority list, were in violation of the Regulations and as such they filed the Writ Petitions on 1-2-1988 praying for the reliefs as stated above.
3. On behalf of the Board, Statement of Objections was filed. The stand of the Board is clear from what is stated in para-5 of the Statement of Objections, which reads thus:
"Admittedly respondents 3 to 14 were promoted as AAO between 1967 and 1969 at which time none of the petitioners were even in the employment or service of these respondents. The petitioners are, therefore, not entitled in law to challenge such promotions. Between 1967 and 1969, the basis for recruitment was on the basis of 25% by direct recruitment and 75% by promotion. Between 1-10-57 to 4-2-60 there were no vacancies in the posts of AAOs. However, from 4-2-1960 to 30-7-1965 the number of vacancies in the posts of AAO were 21. Of this in accordance with the regulations in force at that time, the promotion quota was 75% viz. 16 posts and direct recruitment quota viz. 5 posts. After calling for applications for recruitment of AAOs these respondents- appointed 12 Probationary Accounts Superintendents (now called AAO) even though the quota for direct recruitment was only 5. Consequently, the appointment of Accounts Superintendents was in excess of the quota resulting in the postponement of promotions to the Assistants who but for such excess direct appointments would have been entitled to their promotion. Therefore, the petitioners cannot, by virtue of their beling direct recruits, voice any complaint, against the excess appointments made, as the only class of persons, entitled to object were the promotees, whose quota had been encroached upon. It, therefore, follows that in any event in so far as the petitioners are concerned the violation to the extent narrated of the quota rule was in their favour and therefore, any violations of the quota rule adversely affecting the petitioners does not arise. The persons so appointed in excess of the quota for direct recruitment were regularised, as and when vacancies arose. Such regularisation was completed by 1968 viz., long prior to the petitioners being appointed".
4. The learned single Judge having considered the contentions raised and submissions made by the learned Counsel appearing for the parties, dismissed the Writ Petitions by the impugned order dated 21-9-1990, in that the learned single Judge relied on the Decision of the Supreme Court in the case of THE DIRECT RECRUIT CLASS-II ENGINEERING OFFICERS' ASSOCIATION AND ORS. v. STATE OF MAHARASHTRA AND ORS., . This is what the learned single Judge has stated in para-6 of the impugned order.
" There is serious dispute between the parties as to the vacancies available on relevant dates. However it is unnecessary to examine that aspect of the matter in view of the decision of the Supreme Court in THE DIRECT RECRUIT CLASS-II ENGINEERING OFFICERS' ASSOCIATION AND ORS. v. STATE OF MAHARASHTRA AND ORS. where it has been laid down that when appointments were made from more than one source it is permissible to fix the ratio for recruitment from different sources and if rules are framed in that regard they should ordinarily be followed strictly. But if direct recruitment is not done continuously for long number of years it becomes impossible to adhere to the existing quota it should be substituted by an appropriate rule to meet the needs of the situation. In cases however the quota rule is not followed continuously for a number of years because it was impossible to do so, the inference is irresistible that the quota rule had broken down. Where the quota rule has broken down and appointments are made from one source in excess of the quota but in conformity with eligibility rules and not on adhoc basis the appointees should not be pushed down below the appointee from the other source induced into service at a later date ".
The learned Judge proceeded, on the ground that there has been a break down of the Quota Rule, in view of the fact that there has not been recruitment between 1965 to 1977 and as such held that the said Decision of the Supreme Court was applicable to the facts of the cases on hand. In the view he took, dismissed the Writ Petitions. Hence, these Writ Appeals.
5. The learned Counsel appearing for the appellants urged that the single Judge was not right in applying the said Decision of the Supreme Court in the case of Direct Recruit Class-II Engineering Officers' Association, contending that in the Objection Statement filed by the Board it is not stated as to how and under what circumstances there has been break down of the Quota Rule and no material was placed on record to show that it was impossible for the Board to make direct recruitment of Assistant Accounts Officers during the period 1965 to 1977. In the absence of such material and the stand taken by the Board, the case Direct Recruit Class-II Engineering Officers' Association has no application to the facts of the cases on hand. They also further submitted that the said Decision advances appellants' cases if carefully considered; In particular our attention was drawn to para-44 of the said Decision. They also placed reliance on a Decision of the Division Bench of this Court in the case of V.B. BADAMI AND ORS. v. STATE OF MYSORE AND ORS., 1975 (1) KLJ 356. In para-16 of the said Decision it is stated that:
"If however, promotions are made to vacancies in excess of the promotional quota, the promotions may not be totally illegal but would certainly be irregular and the promotees cannot claim any indefeasible right to hold the promotional posts; on the contrary, they will be liable to be reverted if and when direct recruitment is resorted to for the purpose of filling the vacancies in excess of the promotional quota which, by virtue of the provision under the relevant rules, are required to be filled by direct recruitment. The said liability for reversion is one of the elements or circumstances to be noticed in deciding the relative seniority as between direct recruits on the one hand and the promotees on the other".
In the same Decision in para-22 it is stated thus :
"What is stated above is one aspect of the question. The other aspect is what is the reasonable period to be taken into account for the purposes of determining whether the promotions are within the quota or in excess of the quota or, in other words, what is the period the permanent vacancies arising in which furnish the basis for calculating the number to be filled by promotion and the number to be filled by direct recruitment. The guidance in this regard must be sought in the rules. If the rules provide such guidance, then the period must be determined on the basis thereof; otherwise, the period of one year mentioned in Clauses (b) and (c) of Rule 17 of the General Recruitment Rules should, in our opinion, be regarded as a reasonable period".
They also cited the Decision of the Supreme Court in the case of V.B. Badami v. State Of Mysore And Ors. Having considered the Quota Rule the Supreme Court has observed thus:
"The promotees cannot claim any right to hold the promotional posts unless the vacancies fall within their quota. If the promotees occupy any vacancies which are within the quota of direct recruits, when direct recruitment takes place, the direct recruits will occupy the vacancies within their quota. Promotees who were occupying the vacancies within the quota of direct recruits wilt either be reverted or they will be absorbed in the vacancies within their quota in the facts and circumstances of a case".
It is clearly stated thus in para-34 of the said Decision:
"The important principle is that as long as the quota rule remains neither promotees can be allotted to any of the substantive vacancies of the quota of direct recruits nor direct recruits can be allotted to promotional vacancies. The result is that direct recruitment vacancies between 11 September, 1959 and 26 October, 1964 cannot be occupied by any promotees. The fact that direct recruits were confirmed on 26 October, 1964 will not rob the direct recruits of their quota which remaining unfilled from 2 December 1957".
Yet, another Decision of the Supreme Court was cited by the learned Counsel for the appellants in support of their submissions in the case of GONAL BHIMAPPA v. STATE OF KARNATAKA AND ORS., AIR 1981 SC 2359. A similar question came up for consideration in the said Decision as can be seen from the facts stated in para-2. In this case the Supreme Court having considered various Decisions on the point and in particular the Decisions in the case of S.C. JAISINGHANI v. UNION OF INDIA, and Badami's case to which reference is already made, has stated thus in para-10:
"Badami's referred to several authorities of the Court and clearly drew out the judicial consensus on the point in issue by concluding that the quota rule had to be strictly enforced and it was not open to the authorities to meddle with it on the ground of administrative exigencies".
It is reiterated in para-15 of the said Decision in categorical terms that:
"The conclusion of this Court in Badami's case on this score is a binding authority on us, from an examination of the matter we also reiterate that conclusion to be correct".
Again in para-23 of the said Decision, the Supreme Court proceeded to say :
"The net result of the discussion above requires that rule in Badami's case has to be given full effect. The appeals and writ petitions of the direct recruits have to succeed and those by the promotees have to fail. We hope and trust that the State of Karnataka will not demote anyone who has been in a promotional post for several years to the Class II service as a consequence of this decision but the Gradation List has got to be adjusted to fit into the principles indicated in the judgment. No justification was shown to us as to why the State of Karnataka failed to comply with its obligation of making recruitments in terms of the quota. Once the State frames rules they are binding on the State and like individuals the State has got to regulate its conduct in accordance with the rules, the State has to observe it all the more. We hope and trust that the State of Karnataka in the years ahead will comply with the quota rule with regularity so that a litigation of this type may not arise again. If any party has to be directed for payment of costs in this bunch of litigation it must be the State. We, however, do not want to saddle the State with costs for two reasons - firstly, we do not want the employees to have a feeling that in the fight their employer has been vanquished and secondly we entertain a fond hope that there will be no reoccurrence".
Finally, they also cited the Decision in the case of The Direct Recruit Class-II Engineering Officers' Association And Ors. v. State Of Maharashtra And Ors. on which the learned single Judge placed reliance to dismiss the Writ Petitions. The learned Counsel for the appellants contended that said Decision helps the cases of the appellants and not of the respondents. In particular they drew our attention to paras 19, 21, 22, 23 and 44 of the said Decision. In para-19 of the said Decision reference is made to the cases of Jaisinghani, Badami and Patwardhan. In para-21 the Supreme Court has expressed thus :
" The question, however, is as to what is the conclusion if the quota rule is not followed at all continuously for a number of years, after it becomes impossible to adhere to the same. Admittedly in the present cases direct recruits were not available in adequate number for appointment and appropriate candidates in the subordinate rank capable of efficiently discharging the duties of Deputy Engineers were waiting in their queue. The development work of the State preemptorily required experienced and efficient hands. In the situation the State Government took a decision to fill up the vacancies by promotion in excess of the quota, but only after subjecting the officers to the test prescribed by the rules".
Reading of paras 22 and 23 of the said Judgment makes it clear that the Quota Rule has to be followed as laid down in Badami's case. There can be an exceptional circumstances in which there could be deviation in the matter of following the Quota Rule, if the Rules provide for the relaxation of the Quota Rule or due to some circumstances where it became impossible to make direct recruitment for number of years so as to follow the Quota Rule strictly and that Quota Rule had broken down.
The Supreme Court in the said Decision has recorded its conclusions in para-44, sub-paras (A) to (K), but for the purpose of the cases on hand we think it appropriate to extract sub-paras (C) to (E), which read thus :
"(C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources and if rules are framed in this regard they must ordinarily be followed strictly.
(D) If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down.
(E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date".
Thus, in view of the legal position stated and explained in the Decision the appellants contend that their Writ Petitions ought to have been allowed granting the reliefs sought for.
6. Per contra, learned Counsel appearing for the respondents, argued in support and justification of the impugned order. They urged that:
(1) The Writ petitioners are not entitled for any relief on the ground of delay and latches, in as much as they have sought to question the promotions of the respondents made as early as between the years 1967 and 1969 by fifing Writ Petitions in 1988.
(2) Disturbing the order of seniority at this stage, after lapse of several years, would result in great hardship to the promotee- respondents.
(3) There was no recruitment between 1965 and 1977 for a period of 12 years. That being the position it should be taken that the Quota Rule had broken down and the Quota Rule cannot have universal application. There may be circumstances and cases justifying the deviation from following the Quota Rule.
Under the circumstances the Writ Petitions were rightly dismissed. The learned Counsel for the respondents have also cited few Decisions in support of their contentions.
7. In order to appreciate and apply the Decisions cited by the learned Counsel for the respondents, it is necessary to bear in mind that the Board in the Statement of Objections filed, has not laid foundation to say as to what were the circumstances under which they could not make direct recruitment between 1965 and 1977. It is also not possible, from reading the Statement of Objections, to infer that it was impossible for the Board to give effect to the Quota Rule. It is not disputed that the Gradation Lists pertaining to the Assistant Account Officers, were prepared in 1980, 1983 and 1987 from time to time. Whenever Gradation List was published objections were invited. The appellants as contended by them in the Writ Petitions filed their objections and the last of the Gradation Lists was published on 14-9-1987. The Writ Petitions were filed on 1-2-1988. On these undisputed facts, we are not able to agree with the learned Counsel for the respondents that there has been delay on the part of the appellants in filing the Writ Petitions. In view of the conclusions reached by the Supreme Court in para-44 in the case of Direct Recruit Class-II Engineering Officers' Association, it is not possible to agree with the contention advanced on behalf of the respondents that the Quota Rule had broken down. In order to attract the said Decision to the cases on hand, it was necessary for the respondents to establish that it was impossible to adhere to the Quota Rule and to make direct recruitment for number of years. In the Statement of Objections filed by the Board there is nothing to indicate as to what were the circumstances under which it was not possible to make direct recruitment between the period 1965 and 1977 and that the Quota Rule had broken down on that account. The Board being public authority in all fairness ought to have followed its own Regulations in order to give effect to the Quota Rule so as to appropriate the vacancies between the direct recruits and the promotees. Under the circumstances, we do not appreciate the action of the Board in the absence of placing material on record, to show why it was not possible to make direct recruitment for number of years and that it was impossible to adhere to the Quota Rule in the matter of making direct recruitment.
8. The argument advanced on behalf of the respondents that the promotees would be put to great hardship in case their seniority is disturbed at this stage, finds complete answer in paragraph-19 of the Judgment in the case of Gonal Bhimappa4 supra. A portion in the said paragraph reads thus:
"In the present batch of cases the law being clear and particularly the mandate in the rule being that when recruitment takes place the promotee has to make room for the direct recruit, every promotee in such a situation would not be entitled to claim any further benefit than the advantage of being in a promotional post not due to him but yet filled by him in the absence of a direct recruit. One aspect which we consider relevant to bear in mind is that the promoted officer has got the advantage of having been promoted before it became his due and is not being made to lose his promotional position. The dispute is confined to one of seniority only. The advantage received by the promotee before his chance opened should be balanced against his forfeiture of claim to seniority. If the matter is looked at from that angle there would be no scope for heart-burning or at any rate dissatisfaction is expected to be reduced so far as the promotees are concerned".
The learned Counsel for the respondents cited few Decisions in support of their argument that Quota Rule need not have universal application, the failure to follow the Quota Rule under the given set of circumstances should not invalidate the appointments of the promotees and that there can be deviation in following the Quota Rule when there is a break down of Quota Rule. Most of the Decisions cited by the learned Counsel are referred to in the cases of Gonal Bhimappa and Direct Recruit Class-II Engineering Officers' Association. In our opinion, the principles laid down in Badami's case touching the question remain reinforced.
9. It is clearly stated in sub-para (D) of para-44 of the Decision in Direct Recruit Class-II Engineering Officers Association that :
"If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down".
If sub-paras (C) to (E) of para-44 of the said Decision are read together, it becomes quite clear that unless it is shown that Quota Rule had broken down and that it was impossible to make the direct recruitment for a number of years, the Board was not justified in not following its own Regulations pertaining to Quota Rule. In this view of the matter, we are unable to agree with the view taken by the learned single Judge that the case of Direct Recruit Class-II Engineering Officers Association has application to the facts of the cases on hand. Thus, in our considered opinion, the clear pronouncement of the Constitution Bench of the Supreme Court in the case of Direct Recruit Class-II Engineering Officers Association, helps the case of the appellants in the absence of the respondents establishing that it was impossible to adhere to the Quota Rule and that the Quota Rule had broken down.
10. At the hearing, we asked the learned Counsel appearing for the parties as to the factual position in regard to the ranking and positions occupied by the appellants and respondents 3 to 22. The learned Counsel submitted that respondents 3 to 12 and 20 have retired from service; respondent No. 13 at present is working as Controller of Accounts and is to retire within about 18 months, respondents 14 and 16 are working as Deputy Controller of Accounts and are to retire shortly; respondents 15,17 to 19 and 21 are working as Accounts Officers and respondent No. 22 had died. Although on the question of law we have held in favour of the appellants, in the interest of justice and for no fault of respondents 3 to 22, we think it appropriate under the circumstances of the case not to disturb the positions occupied by respondent Nos. 13,14 and 16.
11. In the result, for the reasons stated and discussion made, we pass the following Order :
(1) The Writ Appeals are allowed.
(2) The Order under Appeals is set aside.
(3) A Writ of mandamus shall issue to respondent No. 1-Board to prepare a fresh Gradation List in the cadre of Assistant Accounts Officers strictly following the Quota Rule and to accord appropriate ranking to all the Assistant Accounts Officers.
(4) As a result of assigning such ranking as aforesaid in the Gradation List of Assistant Accounts Officers, respondent No. 1-Board shall consider the cases of the appellants for further promotions, if they are found eligible in accordance with the Regulations.
(5) However, we make it clear that this order does not affect the respondents 13, 14 and 16, in that they shall not be demoted or reverted from the position they are now occupying.
(6) Time for compliance four months from the date of receipt of a copy of this order.
(7) No order as to costs.