Surjit
Singh & Ors Vs. Union of
India & Ors [1997] INSC 538 (9 May 1997)
K.
RAMASWAMY, D.P.WADHWA.
ACT:
HEADNOTE:
O R D
E R THE 9TH DAY OF MAY, 1997 Present:
Hon`ble
Mr.Justice K.Ramaswamy Hon`ble Mr.Justice D.P.Wadhwa P.P.Rao, Sr.Adv., A.Mariarputham,
Ms.Aruna, Advs., with him fro M/s. Arputham, Aruna & Co. Advs. for the
appellants.
V.C.. Mahajan,
Sr.Adv., Ms. Sushma Manchanda, Ms.Anil Katiyar, Dr.D.C.Vohra, Arun K.Sinha,
Advs. with hin for the Respondents The following Order of the Court was
delivered:
Leave
granted.
We
have heard learned counsel on both sides.
The
never-ending dispute between the direct recruits and the promotees has again
surfaced in these appeals. The year 1962 onwards, the Central Secretariat
Service Rules (for short, the `Rules') framed under the proviso to Article 309
of the Constitution of India provided a ratio of 1/5th and 5/6th between the
direct recruits and the promotees. On July 1, 1982, the ratio was changed to 1/5th and
4/5th between the direct recruits and the promotees respectively.
In the
year 1983, a writ petition under Article 32 was filed by the promotee officers
titled H.N. Hardasani & Ors. vs. Union of Indian & Ors., This Court had
directed that the unfilled vacancies meant for the direct recruits might be
carried forward for being filled up by the promotees. A statutory shape was
given to the said direction by amending the Rules. In these cases, we are
concerned with the Section Officer in the Central Secretariat. Whin fresh
seniority list was being prepared, another writ petition came to be filed
titled Amrit Lal & Ors. vs. Union of India & Ors., This Court directed
therein preparation of the seniority lest in the light of the direction given
by this Court which stood transformed into Amended Rules. Consequently, a seniority
list had been prepared giving due placement to the direct recruits and the promotees
in accordance with the rota and quota as operating under the Rules. Again, a
third round of litigation had been started by filling of an Original
Application in the Central Administrative Tribunal.
The
Tribunal in the impugned order made in O.A. No. 629 of 1994, on March 22, 1995
and the review order following therefrom on May 23, 1996, has put the clock
back, stating that prior to the amendment of the Rules putting two years'
limitation carry forward of the vacancies meant for the direct recruits would
mean that earlier to that date the Government of India had no power to carry
forward and thereafter, when the Rules had come into force, the Government had
power to carry forward the vacancies limited to two years. Therefore, all the
promotions made earlier to the amendment of the Rules must be held to have been
thrown open to the promotees and subsequently, as and when the vacancies would
not be filled up within two recruitment years, after the amendment has been
brought into force after expiry of two recruitment years, brought into force
after expiry of two recruitment years, the unfilled vacancies reserved for
direct recruits would also be thrown open to the promotees; the seniority list
is required to be prepared afresh in that manner. Thus, these appeals by
special leave.
In is
seen that Rule 13(1) of the Rules dealing with recruitment of Section Officers
of the Central Secretariat, reads as under:
"One-sixth
of the substantive vacancies in the Section Officers' Grade in any cadre shall
be filled by direct recruitment on the results of the competitive examinations
held by the Commission for this purpose from time to time.
The
remaining vacancies shall be filled by the filled by the substantive
appointment of persons included in the Select List for the Section Officers'
Grade in that cadre. Such Appointments shall be made in the order of seniority
in the Select List except when for reasons to be recorded in writing, a person
is not considered fit for such appointment in his turn." A reading of this
rule would clearly indicate that one- sixth/one-fifth, as per subsequently
amended Rules of the substantive vacancies (posts) in the Section Officers'
grade in any cadre shall be filled by direct recruitment on the results of the
competitive examinations held by the Union Public Service Commission for this
purpose from time to time. In other words, the rule is imperative and
unequivocal that one-sixth/one-fifth vacancies meant for direct recruitment
shall be filled only by direct recruitment after due recruitment is made by
direct recruitment after due recruitment is made by the UPSC and appointments
made by Government form time to time. The unfilled spilled over vacancies shall
be filed up with the promoteed from the select list. It must be for two years
from the last recruitment year. Consequent upon the directions issued by this
Court, the rule came to be amended and the two years' limitation was introduced
which reads thus;
"G.S.R.21
In exercise of the powers conferred by the proviso to article 309 of the
Constitution, the President hereby makes the following rules further to amend
the Central Secratariat Rules, 1962, namely:
1.(1)These
rules may called the Central Secretariat Service (Second Amendment) Rules,
1984.
(2)They
shall come into force on 1st
July, 1985.
2. In
the Central Secretariat Service Rules, 1962 (hereinafter referred to as the
said rules) in rule 12, in sub-rule (2) for the third proviso, the following
shall be substituted, namely:- "Provided further that if any person
appointed to the Section Officers. Grade is considered for promotion to grade I
under this sub-rule, all persons senior to him in the Section Officers' Grade,
belonging to the Scheduled Castes or the Scheduled Tribes, who have rendered
not less than four years' approved service in that Grade, shall also be
considered for promotion"
3. In
rule 1 of the said rules,- (i) after sub-rule (1), the following proviso shall
be inserted namely:- Provided that the number of the vacancies to be filled by
the substantive appointment of persons included in Select List for the Section
Officers' Grade is a recruitment year in a cadre, shall be proportionate to
vacancies reported by that cadre to the Department of personnel and
Administrative Reforms to be filled by direct recruitment for that year.
Provided
further that if sufficient number of candidates are not Available for filling
up the vacancies in cadre in any year, either by direct recruitment or by
appointment of persons included in the select list for Section Officers, Grade,
the unfilled vacancies shall also be carried forward for not more than two
recruitment years, beyond the year to which the recruitment relates, whereafter
the vacancies, if any, still remaining unfilled, if any, still remaining
unfilled, belonging to one mode of recruitment, shall be transferred as
additional vacancies for the other made of recruitment".
(ii)
in sub-rule (2), for the first proviso, the following shall be substituted, namely:-
"Provided that if any person appointed to the Assistants' Grade is
considered for promotion to the Section Officers' Grade in any cadre under this
rule, all persons senior to him in the Assistants' Grade in that cadre and
belonging to the Scheduled Castes." A reading thereof would indicate that
the number of the vacancies to be filled by the substantive appointment of
persons included in Select List for the Section Officers' Grade in a
recruitment year in a cadre, shall be proportionate to vacancies reported by
that cadre, shall be proportionate to vacancies reported by that cadre to the
Department of Personnel and Administrative Reforms to be filled by direct
recruitment for the year. Provided further that if sufficient number of
candidates are available for filling up the vacancies in a cadre, in any
recruitment year, either by direct recruitment or by appointment of persons
included in the select list for Section Officers' grade, i.e. by promotion the
unfilled vacancies shall also be carried forward for nat mare than two
recruitment years, beyond the year to which the recruitment relates, whereafter
the vacancies, if any, still remaining unfilled, belonging to one mode of
recruitment, shall be transferred as additional vacancies for the other mode of
recruitment. In other words, where sufficient number of direct recruit
candidates for the unfilled vacancies are not available for two recruitment
years prior to the recruitment year, all unfilled vacancies will be thrown open
to the respective quotas, namely, by promotions and vice versa, as the case may
be. In that view of the matter, this Court held in Amrit Lal's case as under:
"In
spite of the decisions of this Court referred to above, some of the promotee
officers in this cadre went before the Central Administrative Tribunal raising
a fresh dispute on what may be said to be a covered field. The tribunal had the
handicap of a binding judgment in the field; yet on the basis of materials
placed before it, it came to conclusions placed before it, it come to
conclusions partly different from what had been reached by this Court and;
rendered a judgment which is impugned before us in this group of case. We have
heard parties at considerable length in the month of January this year and
thereafter when we were satisfied that the representation made to this Court on
the earlier occasion that there existing a seniority list was perhes** not
correct, we called upon the Union of India to draw up such a list and for that
purpose we adjourned the proceedings for a considerable period of time, it is
not disputed that with the assistance of both the sides such a list has now
been drawn up.
We
have again heard counsel appearing on the two sides and even allowed oral
arguments to be addressed by an intervener in person. This Court has repeatedly
noticed the fact that public officers are more in Court than public offices,
With a view to doing complete justice to the matter and being assured by
counsel on either and the representatives who have filled our Court hall that if
a seal be given to this litigation, our expectation that Government business
shall now be carried on and not litigation hereafter, we have agreed to make
this further order providing certain guidelines for updating/modifying the list
which was drawn up as referred to above.
We are
of the opinion that with a view to doing complete justice to the situation, the
December 1984 Rules should be made operative from 1.7. 1984 instead of
1.7.1985.
These
Rules have now a limited provision of carry forward of vacancies to be filled
up by direct recruits and that is a two year period. The entitlement to
substantive recruitment to substantive recruitment to the cadre is on an eight
year period of qualifying service. Entitlement as qualified officers in the
field is one matter and recruitment into the cadre on substantive basis is
another. It may be noted that 20% is reserved for the direct recruits and the
remainder is available to the promotees.
We do
not consider it apropriate to dispose of the matter now and leave the litigant
again to come in some form. Therefore, we adjourn these proceedings by two
months and require the Union Government to update/modify the list scrupulously
following every provision of the relevant rules and the regulations and place
the list for consideration of the Court on the adjourned date. A copy of the
list as prepared may be served on the counsel for either side a week in advance
so that they would be in a position to make their representations on that
date." In the light of these directions, it is obvious that the Government
of India had prepared the seniority list. The contention of the promotees which
was found acceptable to the Tribunal that preceding the date of amendment the
Government was devoid of power to carry forward all unfilled vacancies to the
direct recruits and that all these vacancies are meant to be thrown open to the
promotees, is clearly a misinterpretation of the rules and on that basis the
directions came to be issued by the Tribunal. This Court had suggested on
earlier occasion that vacancies meant for the direct recruits may be carried
forward for two years after the recruitment year and thereafter the unfilled
vacancies would be thrown open to the respective cadres.
Under
these circumstance, the view respective cadres. Under these circumstances, the
view of the Tribunal is clearly illegal; unfortunately, Tribunal has wrongly
stated that if they commit mistake, it is for this Court to correct the same.
That view of the Tribunal is not conductive to the proper functioning of
judicial service. When a patent error is brought to the notice of the Tribunal,
the Tribunal is duty bound to correct, with grace, its mistake of law by way of
review of the its order/directions.
The
appeals are accordingly allowed. The impugned order of the Tribunal is set
aside. As a result, the seniority list prepared by the Central Government needs
to be redone as per the law now declared. No costs.
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