T.N. Saxena & Ors Vs. State of
U.P. & Ors [1982] INSC 53 (7 May 1982)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
VARADARAJAN, A. (J)
CITATION: 1982 AIR 1244 1982 SCR (3) 719 1982
SCC (2) 319 1982 SCALE (1)481
ACT:
U.P. Government Service-Seniority-Recruitment
from two sources-Promotees appointed first and direct recruits much
later-Seniority of promotees based on length of service not affected by later
induction of direct recruits.
HEADNOTE:
According to the relevant orders of the State
Government, seniority in service was generally to be determined from the date
of substantive appointment in a substantive vacancy but. where appointments to
a service were made both by promotion and direct recruitment, a combined
waiting list was to be prepared by taking candidates alternately from the lists
of promoted candidates and direct recruits and appointments made in accordance
with that combined list.
The posts of Senior Marketing Inspector under
the Food
by way of promotion from the category of
Marketing Inspector. But, with effect from April 15, 1964, the State Government
decided to fill up these posts by way of promotion as well as direct
recruitment in the ratio of 50:50.
Respondents 2 to 5 who had entered service as
Marketing Inspectors were promoted as Senior Marketing Inspectors in September,
1964, in the quota of promotees. The appellants, who were direct recruits to
the post of Senior Marketing Inspector were appointed much later but were
placed above respondents 2 to 5 in the seniority list of Senior Marketing
Inspectors issued in 1977 which resulted in the reversion of respondents 2 to 5
from the posts of Deputy Marketing Regional Officers to which they had been
further promoted in 1974.
Allowing the petition of respondents 2 to 5,
the High Court quashed the seniority list holding that appointments already
made by departmental promotion to substantive posts would not be affected by
the direct recruits coming subsequently through the Public Service Commission.
In appeal, the appellants contended that the
direct recruits had to be adjusted alternately with the promotees even though
the promotees had been appointed in their own quota long before the direct
recruits joined service, 720 Dismissing the appeal, ^
HELD 1. The promotees were entitled to maintain
their seniority as from the date of their promotion and it was not open to the
Government to prepare a seniority list by pushing the promotees far below the
position of seniority which they would legally occupy merely to accommodate the
direct recruits. The rule of alternate seniority does not mean that the genuine
seniority based on length of service should be completely overlooked. [726 G]
2. The normal rule is that seniority should
be measured by the length of continuous officiating service unless a contrary
intention appears from the rules. In this case, according to the orders issued
by the Government, the length of service was the prime criterion for
determining seniority. [726 A-B]
3. Promotees regularly appointed during a
particular period within the quota of promotees can claim their whole length of
service for the purpose of seniority as against direct recruits who may turn up
in succeeding periods. [726 C] Bishan Sarup Gupta v. Union of India & Ors.,
[1975] 1 S.C.R. 104 held inapplicable; N.K. Chauhan & Ors. v. State of
Gujarat & Ors. [1977] 1 S.C.R. 1037 and B.S. Yadav & Ors. v. State of
Haryana & Ors., [1980] 1 S.C.R. 1024 referred to.
& CIVIL APPELLATE JURISDICTION : Civil
Appeal No. 3148 of 1979.
Appeal by special leave from the judgment and
order dated the 18th May, 1979 of the Allahabad High Court in Writ Petition No.
1372 of 1977.
Dr. Y.S. Chitale and A.K. Srivastava for the
Appellant.
R.K. Garg, G.N. Dikshit, V.J. Francis, D.K.
Garg, S. Dikshit and Ashok Grover for the Respondents.
The Judgment of the Court was delivered by
FAZAL AIL, J. This appeal by special leave is directed against a judgment dated
18-5-79 of the Allahabad High Court quashing the impugned seniority list dated
4.4.77 issued by the Government of U.P. (hereinafter referred to as the
'Government') which resulted in the reversion of respondents 2 to 5 to lower
posts.
The facts of the case lie within a narrow
compass and, in our opinion, seem to be concluded by several decisions of this
Court, 721 Respondents 2 to 5 had passed the High School Examination and
entered the service of the Government as Marketing Inspectors under the
establishment of Food & Supplies Department on various dates and were later
confirmed on these posts. In fact, to begin with, the Department itself was
temporary but was later on made permanent. It may be stated here that the post
of Marketing Inspector was exempted from the scope of the Public Service
Commission.
The next higher post in the hierarchy of the
Department was that of Senior Marketing Inspector and previous to the year 1964
these posts were filled entirely by promotion from Marketing Inspectors. As
respondents 2 to 5 were already confirmed in their original post of Marketing
Inspector, they were promoted to the rank of Senior Marketing Inspectors with
effect from September 1964 and since then had been holding the post until their
further promotion as Deputy Marketing Regional Officers in June 1974.
It appears that right from 7.12.44 up to
Sept. 1964 the criteria for determining the seniority of the aforesaid
employees was total length of service including identical and higher scale of
pay. It is not disputed that respondents 2 to 5 fulfilled both the criteria
mentioned above. Sometime in 1964, however, the Government took a policy
decision that so far as the cadre of Senior Marketing Inspectors was concerned,
the posts would be filled by two sources, viz., (1) promotion and (2) direct
recruitment in the ratio of 50:50. As a result of this decision a very large
number of posts were sanctioned to accommodate the direct recruits who were to
be appointed through a competitive examination held by the Public Service
Commission. The Government also ordered that henceforward the posts of Senior
Marketing Inspectors should be brought within the purview of the Public Service
Commission. We have mentioned this fact expressly because one of points that
was raised before the High Court by the appellants was that respondents 2 to 5
had not been cleared by the Public Service Commission nor were their cases
referred to it. Nothing much turns upon this point because it was not argued
before us in the appeal.
Moreover, as respondents 2 to 5 were
confirmed hands question of taking the formal sanction of the Public Service
Commission would be more or less inconsequential and could be given
subsequently with retrospective effect. We might further state another
undisputed fact-the posts of the Senior Marketing Inspector at the time of the
new policy taken by the Government were increased and respondents 2 to 722 5
who had been promoted purely in the quota when the Government decided to
recruit the other 50% by direct recruitment. This fact is rather important
because it distinguishes the present case from some of the decisions of this
Court on which heavy reliance had been placed by the counsel for the
appellants.
The principles concerning the recruitment of
the promotees and the direct recruits were contained in a letter of the
Government (Annexure C to the petition) relevant portion of which may be extracted
thus:
"I am directed to address you on the
above subject and to say that the post of Senior Marketing Inspector has been
placed within the purview of Lok Seva Ayog with effect from 15 April 1964. The
recruitment to this post will now therefore be made on the principles indicated
below:
(i) 50% of the posts will be filled by
promotion from amongst the Marketing Inspectors and the remaining 50% by direct
recruitment through Lok Seva Ayog.
(ii) Educational qualifications for direct
recruitment through Ayog will be graduate of a recognised University with
preference to graduate in Agriculture.
(iii) Age limit is 21 to 25 years. Age limit
for departmental candidate for promotion will be 40 years. Officials who start
officiating as Senior Marketing Inspector before the age of 40 years will,
however, be considered for promotion.
(iv) All permanent Marketing Inspectors who
have put in 5 years service, permanent and temporary both, will be eligible for
promotion. No educational qualification has been prescribed for promotion
except that no one who has not got the minimum qualification shall be eligible
for promotion." A perusal of this letter would clearly show that the quota
of the promoted Senior Marketing Inspectors was not at all touched or altered and
even the age-limit for the candidates who had been 723 promoted was extended up
to 40 years and it is not disputed that respondents 2 to 5 were within that
age-limit.
Regarding the question of seniority, which is
the fundamental point in issue in the appeal, the Rules provide thus:
"(xi) Seniority Seniority in service
shall generally be determined from the date of substantive appointment to a
service or from the date of the order of appointment in a substantive vacancy.
In special cases seniority may be determined in accordance with the conditions
which may suit a particular service. If two or more candidates are appointed on
the same date, their seniority will be determined according to the order in
which their names are mentioned in the appointment order.
Where appointments to a service are made both
by direct recruitment and promotion, a combined waiting list would be prepared
of the candidates recruited by both the sources and appointments made in
accordance with that combined list. The combined list is to be prepared by
taking candidates alterantly from the lists of promoted candidates and direct
recruits." The High Court has rightly construed the aforesaid Rule of
seniority to connote that appointments already made by departmental promotion
to substantive posts would not be affected by the direct recruits coming
subsequently through the Public Service Commission. Reliance was, however,
placed by the appellants on the 2nd paragraph of the Rule which stated that the
combined list was to be prepared by taking candidates alternately from the list
of promoted candidates and direct recruits. This clause has to be interpreted
rationally so as to advance the real object of the Government which was merely
to enlarge the area of recruitment of Senior Marketing Inspectors without
affecting the persons who had already been promoted to the higher post long
before even the policy of taking direct recruits through Public Service
Commission was born. Unfortunately however after the direct recruits were taken
as Senior Marketing Inspectors, sometime after 1970 they were put above
respondents 724 2 to 5 who, by the time the direct recruits were appointed, had
already been promoted even to a higher post, viz., Deputy Marketing Regional
Officers. The High Court relied on a Government order setting out guidelines
relating to seniority which has already been extracted above.
Perhaps the Government was under the
impression that as the quota of 50% was reserved for direct recruits and they
had come through competitive examination with higher qualifications, they would
have to take precedence over the promotees even though the promotee had
occupied the post in their own quota long before the direct recruits appeared
on the scence. Under this erroneous impression the Government issued the
impugned seniority list of 1977 which has, in our opinion, rightly been quashed
by the High Court.
The first point raised by the counsel for the
appellants was that in view of the fact that the direct recruits possessed a
higher qualification and were recruited through the Public Service Commission,
they had to be given priority in respect of seniority over the promotees.
It was further argued that as a result of the
Government Orders, the direct recruits had to be adjusted alternately with the
promotees even though the promotees had been appointed in their own quota long
before the direct recruits joined the service. We are, however, unable to agree
with this somewhat broad and ingenious argument. It is true that where there
are two sources of recruitment and the Rules expressly provide that one source
would have precedence over the other, then the position as contended by the
counsel for the appellants would have to be accepted. In the instant case, we
are unable to find any such inhibition or prohibition in the order passed by
the Government. In fact in N.K. Chauhan and Ors. v. State of Gujarat and Ors.
(1) to which one of us (Fazal Ali, J.) was a
party, it was clearly laid down that so long as the promotees do not exceed
their quota they were entitled to maintain their seniority as from the date of
their promotion, where this Court made the following observations:- 725
"The quota rule does not, inevitably, invoke the application of the rota
rule. The impact of this position is that if sufficient number of direct
recruits have not been forthcoming in the years since 1960 to fill in the ratio
due to them and those deficient vacancies have been filled up by promotees,
later direct recruits cannot claim 'deemed' dates of appointment for seniority
in service with effect from the time, according to the rota or turn, the direct
recruits vacancy arose. Seniority will depend on the length of continuous
officiating service and cannot be upset by later arrivals from the open market
save to the extent to which any excess promotees may have to be pushed down as
indicated earlier.
+ + + + Seniority, normally, is measured by
length of continuous, officiating service-the actual is easily accepted as the
legal. This does not preclude a different prescription, constitutionally tests
being satisfied.
+ + + + Promotees regularly appointed during
period in excess of their quota, for want of direct recruits (reasonably sought
but not secured and because tarrying longer would injure the administration)
can claim their whole length of service for seniority even against direct
recruits who may turn up in succeeding periods.
Promotees who have been fitted into vacancies
beyond their quota during the period B-the year being regarded as the unit-must
suffer survival as invalid appointees acquiring new life when vacancies in
their quota fall to be filled up. To that extent they will step down, rather be
pushed down as against direct recruits who were later but regularly appointed
within their quota." This case clearly laid down three important
principles.
726 (1) Normal rule is that seniority should
be measured by the length of continuous officiating service unless a contrary
intention appears from the rules.
We have already shown from the Rules framed
by the Government that the length of service was determined as the prime
criteria for determining the seniority.
(2) Promotees regularly appointed during a
particular period in excess of their quota for want of direct recruits can
claim their whole length of service for seniority even against direct recruits
who may turn up in succeeding periods.
(3) Promotees who had exceeded their quota
would have to be pushed down to accommodate direct recruits coming after their
appointment.
The case of respondents 2 to 5 clearly falls
within the first two principles.
The admitted position is that respondents 2
to 5 had not exceeded their quota of 50% when they were promoted as Senior
Marketing Inspectors. In fact, they were promoted as Senior Marketing
Inspectors long before the Government evolved the policy of filling up the
posts of Senior Marketing Inspectors by direct recruits. It is also clear that
none of the respondents had encroached on the 50% quota which was reserved for
direct recruits under the new Rules framed by the Government.
In these circumstances, therefore, it was not
open to the Government to prepare a seniority list by pushing the promotees far
below the position of seniority which they would legally occupy merely to
accommodate the direct recruits. The rule of alternate seniority does not mean
that the genuine seniority based on length of service by a previous employee
should be completely overlooked or obliterated.
Reliance was, however, placed on an earlier
decision of this Court in Bishan Sarup Gupta etc. v. Union of India and Ors. 727
In this case also it was clearly held that the promotees could be pushed down
only if they had exceeded the quota allotted to them. In the instant case not
only the respondents 2-5 did not exceed their quota but had secured much higher
promotions by the time the direct recruits came to be recruited and had to be
reverted to lower posts in order to accommodate the direct recruits. Such a
gross injustice, in our opinion, cannot be countenanced by the rules or orders
neither made by the Government nor can such a course of action be spelt out
from Bishan Sarup Gupta's case (supra).
In B.S. Yadav and Ors. v. State of Haryana
and Ors. The earlier decision of this Court in Chauhan's case (supra) was
reiterated and Chandrachud, CJ speaking for the Court observed thus:
"Is it proper and fair to defer the
confirmation of the promotees merely because direct recruits are not available
at that point of time so as to enable the High Court to make confirmations from
both the sources by rotation? This, precisely, is what the High Court has done
by the impugned notification dated 25-8-1976 and that is the reason why it has
not confirmed ten more promotees in Punjab, for whom vacancies are available
within the quota of promotees.
... ... ...
What is relevant is the decision of the Court
that the quota rule will be enforced at the time of initial recruitment and not
at the time of confirmation?...
Seniority of promotees, according to this
decision, could not be upset by later arrivals from the open market, save to
the extent to which any excess promotees have to be pushed down." It is,
therefore, clear from an analysis of the decisions of this Court cited before
us that the quota rule and the rota rule must be applied in a practical fashion
so as not to cause injustice to any employee. In the instant case, as the
Government by virtue of the impugned seniority list had completely upset the
seniority of respondents 2 to 5, the principles governing the order were
directly opposed to what has been held and pointed out by this Court. The 728
High Court, in our opinion, was fully justified in quashing the seniority list.
Lastly, it was contended that the High Court
while striking down the seniority list has not struck down the Government Order
which had fixed the rota and the quota rule. As indicated above, if the rota
and the quota rules are properly interpreted, as held by this Court in the
cases cited above, the Government order cannot be said to be bad or legally
invalid. The defect lay in the Government itself misconstruing its own order
while issuing the seniority list, which error was rightly corrected by the High
Court.
The Government shall now issue a fresh
seniority list in the light of the observations made and principles enunciated
by this Court and the High Court so as to avoid any reversion of promotees who
had been promoted within their quota as senior Marketing Inspectors or above.
For the reasons given above, all the
contentions raised by the appellants are overruled and the appeal fails and is
dismissed but in the circumstances without any order as to costs.
H.L.C. Appeal dismissed.
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