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Showing contexts for: temporary post in Shyam Kindalkar vs M/O Defence on 17 January, 2020Matching Fragments
The answers to these questions would to a large extent depend upon the interpretation of the earlier decisions of this Court in O.P. Garg and SrikantTripathi.
Re : Question (i)
12. In O. P. Garg, this Court struck down Rules 22(3) and 22(4) which confined the appointment to temporary posts to only promotees (NyayikSewa and Judicial Magistrates) held that when temporary posts under Rule 4(4) of the 1975 Rules are created as addition to the cadre, the direct recruits could not be denied their share of the quota as provided under Rule 6 of the said Rules; and as the services were comprised of three sources including the direct recruitment, there was no justification to deprive the direct recruits of their share in the temporary posts in the service. This court also struck down the first proviso to Rule 26(1)(a). As a result this Court directed :
23. In O.P.Garg, this court held as follows in regard to entitlement of direct recruits for a quota in the temporary posts :
"24. We agree with the above findings and accept the position that the service consists of permanent as well as temporary posts. The substantive vacancy has not been defined under the 1975 Rules but as held by this Court in Dixit case there can also be a substantive vacancy in a temporary post which is part of the cadre. All temporary posts created under Rule 4(4) of the 1975 Rules are additions to the permanent strength of the cadre and as such form part of the cadre. Appointments under Rule 22 of the 1975 Rules can be made to a permanent post as well as to a temporary post. So long as the temporary post has an independent existence and is a part of the cadre strength the appointment against the said post has to be treated as substantive appointment."
`It is therefore obvious that if a vacancy arises on account of an incumbent going on leave or for training or on deputation for a short period, it would be a fortuitous or adventitious vacancy and the quota rule would not be attracted in case of such a vacancy. But where a vacancy arises on account of the incumbent going on deputation for a reasonably long period and there is no reasonable likelihood of the person promoted to fill such vacancy having to revert, the vacancy would be subject to the quota rule ..... It is, therefore, apparent that what has to be considered for the applicability of the quota rule is a vacancy in a post included in the sanctioned strength of the cadre.....' "32. When temporary posts under Rule 4(4) of the 1975 Rules are created as addition to the cadre we see no justification to deny the direct recruits their share of the quota as provided under Rule 6 of the said rules. Rule 5 of the 1975 Rules specifically lays down that recruitment to the service shall be made from three sources including the direct recruits. Rule 6 fixes the quota for various sources of recruitment to the service and allocates 15 per cent of the posts in the service to the direct recruits. Rules 5 and 6 read with Rule 22(2) provide for appointments to the service in accordance with quota. These rules have to be read homogeneously and as a part of the same scheme. The service having comprised of three sources including the direct recruitment there is no justification to deprive the direct recruits of their share in the temporary posts in the service. Unless the direct recruits are given their due quota in the temporary posts the seniority rule cannot operate equitably. We see no justification whatsoever in having Rules 22(3) and 22(4) of the 1975 Rules which deprive one of the sources of recruitment the benefit of appointment to the temporary posts. The rules on the face of it are discriminatory. There is no nexus with the object sought to be achieved by framing the abovesaid rules. We, therefore, strike down Rules 22(3) and 22(4) of the 1975 Rules being discriminatory and violative of Articles 14 and 16 of the Constitution of India. We, however, direct that the appointments already made under these rules [Rules 22(3) and 22(4)] shall not be invalidated on this ground. We further direct that while selecting candidates under Rule 18 the Committee shall prepare a merit list of candidates twice the number of vacancies and the said list shall remain operative till the next recruitment. We further direct that the appointments under Rules 22(1) and 22(2) of the Rules shall be made to permanent as well as temporary posts from all the three sources in accordance with the quota provided under the 1975 Rules."
24. The division bench of the High Court has accepted the contention of the promotees that while applying the ratio of the judgment in O.P.Garg and distributing temporary as well as permanent vacancies, the allocation of 15% vacancies as the quota of direct recruits under Rule 6 of the Rules has to be subjected to a ceiling of 15% of the permanent strength of the service till the amendment in the Rules came into effect (on 15.3.1996). In O.P.Garg this court held that the various rules will have to be homogenized as parts of the same scheme; that as the service was comprised of three sources including direct recruitment, there is no justification to deprive the direct recruits of their share of temporary posts in the service; that unless the direct recruits are given their due quota in the temporary posts, the seniority rule cannot operate equitably;