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20. The stand of the direct recruits is to the effect that those promotees, who had been promoted on ad hoc basis prior to 31.12.1987 or even after 1.1.1988, in excess of 50% available to the promotees must be considered as purely ad hoc promotees and cannot claim any seniority on their subsequent regularisation from the date of initial ad hoc promotion and their seniority should be counted only from the date when they were regularly promoted within 50% available to them.

30. Learned counsels appearing for the direct recruits (and even the learned counsels appearing for the Union of India by adopting an improved and new model stand) different stand have contended that paragraph 16 of such decision makes it very clear that at least 50% of the vacancies are ensured at all times in favour of the direct recruits and, therefore, such observation of the Supreme Court obviously means to the extent any promotee had been promoted by exceeding the balance 50% available to other appointees including the promotees, is thus an encroachment on the allocation of at least 50% posts for the direct recruits and any such promotee who has been promoted in excess of 50% would obviously be considered as an ad hoc promotee in fortuitous circumstance and such promotee cannot claim any advantage of seniority from the date of such ad hoc appointment on his subsequent regularisation. In this context, it is also further submitted by the learned counsels appearing for the direct recruits as well as Union of India that in a long line of decisions it has been held that the persons being promoted on ad hoc basis cannot claim any right of seniority unless the rules so envisage specifically. In this context, it is also pointed out that in the orders relating to promotion of various claimants now before the Court, it had been specifically indicated that promotion was purely on ad hoc basis which would not give them any right of regular promotion and subsequently at the time of regular promotion also it was so indicated that their service shall be regularly counted from the date when they assumed charge. It is therefore contended that in view of the specific terms of the appointment, in view of the settled principle of law and in view of the fact that direct recruits are ensured allocation of 50% of posts at all times, the contention raised by the promotees cannot be accepted.

48. Of course, when the court comes to the conclusion that quota rule has broken down, obviously the appointment made in excess of the quota can be counted. However, it is evident that before coming to the conclusion that quota has broken down, the Court has to arrive at a definite conclusion that consistently for a considerable length of time, the appropriate authority had consciously departed from the quota.

49. In the present case, it cannot be said that the quota had broken down. On the other hand, the Supreme Court in Gaya Baksh Yadavs case categoricaklly observed that at least 50% is preserved for the direct recruits at all times. So far as ad hoc promotion before December, 1987 is concerned, to the extent that such appointment had been made within the maximum 50% available for the promotees, the observation of the Supreme Court in Gaya Baksh Yadavs case i.e., seniority should be counted from the date of continuous officiation, is required to be followed. However, it cannot be said that the Supreme Court also intended to lay down an inexorable principle that the promotees promoted on ad hoc basis before December, 1987 in excess of maximum 50% available to the promotees, on their subsequent regularisation after 1988 Rules came into force, were also to be given seniority from the date of their ad hoc promotion. Such interpretation would rather militate against the observation of the Supreme Court that the direct recruits are ensured 50% of the posts at all times.

50. In view of the discussion, the inevitable conclusion is as follows :-

(A) Promotees who had been regularised by December, 1987 should be in the seniority list on the basis of continuous officiation.

(B) Ad hoc promotees within permissible 50%, who were regularised after 1988 Rules came into force can claim seniority from the date of their ad hoc promotion, provided their selection was otherwise in accordance with the 1961 Rules. However, ad hoc promotees promoted before December, 1987 in excess of maximum permissible 50% of the post, on their subsequent regularisation after 1988 Rules came into force can claim seniority from the date of regular promotion and not from the date of their ad hoc promotion.