G.S. Lamba & Ors Vs. Union of
India & Ors [1985] INSC 65 (22 March 1985)
DESAI, D.A. DESAI, D.A.
KHALID, V. (J)
CITATION: 1985 AIR 1019 1985 SCR (3) 431 1985
SCC (2) 604 1985 SCALE (1)563
CITATOR INFO:
E&R 1985 SC1605 (16) R 1986 SC 638
(12,15,16,20) F 1987 SC 424 (24) F 1987 SC 716 (13) RF 1987 SC2359 (17,18) D
1988 SC 535 (24) APL 1989 SC 278 (19) F 1990 SC1256 (22,32)
ACT:
Constitution of India, 1950 Articles 14 and
16 Service-Constitution of-Recruitment from more then one source and quota
prescribed for each source-Quota rule of recruitment inter linked with rota
rule of seniority- Deviation and departure in implementation of service rule-
Interference whether artises.
Indian Foreign Service, Branch 'B'
(Recruitment, Cadre, Seniority and Promotion) Rules 1964, Rules 13,21 (4) and
25 (i) (ii) & 2F and 29(a) Promotees and direct recruits- Fixation of
seniorty-Promotees promoted to substantive vacancies on temporary
basis-Continuous officiation whether confers advantage of seniority over later
recruits.
Power of relaxation of statutory service
rules-Failure to record reasons-Whether quota fixed for direct recruitment can
be relaxed.
HEADNOTE:
The Indian Foreign Service Branch 'B' was
constitued in 1956. The statutory rules Indian Foreign Service Branch
(Recruitment, Cadre, Seniority and Promotion) Rules, 1964 came into force from
May 6, 1964. Commencing from the advent of the Rules, recruitment from three
sources were made (i) direct recruitment on the result of a competitive
examination held by the Union Public Service Commission, (ii) substantive
appointment of persons included in the selective list promoted on the basis of
a limited competitive examination held by the U.P.S.C. and (iii) Promotion on
the basis of seniority.
Rule 13 provided for recruitment to posts in
the integrated Grades II and III of the General cadre, and that temporary
vacancies shall be filled by appointment of persons included in the select
list. Rule 21 laid down a general provision for fixing of seniority, while
sub-rule (4) thereof, provided that persons promoted or recruited on the basis
of an earlier selection or recruitment, shall be senior to those promoted or
recruited on the basis of an earlier 432 selection or recruitment, shall be
senior to those promoted or recruited on the basis of a subsequent selection or
recruitment. Rule 22 to 24 provided for seniority inter-se of direct recruits,
and seniority inter-se of officers promoted to a grade on the recommendations
of a departmental promotion committee. Rule 25 provided for seniority inter-se
of the officers appointed to a grade from different sources.
By a notification dated February 12, 1975,
Rule 13 was amended to provide that recruitment to the three different sources
of integrated Grades II and III to be: (i) 1/6th of the substantive vacancies
to be filled in by direct recruitment, (ii) 33 1/3 % of the remaining 5/6 of
the vacancies to be filled on the basis of results of the limited competitive
examination, and (iii) the remaining vacancies to be filled in by promotion on
the basis of seniority.
The petitioners in the Writ Petitions were
selected by the Union Public Service Commission according to the merits
obtained at the examination of Assistants conducted for the purpose for
appointment to the post, and allocated to the Ministry of External Affairs.
After the initial constitution of the service in 1956, they were offered an
option whether they would like to join the I.F.S. Branch 'B' in grade IV.
They opted and were inducted into the service
Later they were promoted between 1976 and 1979 from grade IV to the integrated
grades II and III . The Government of India published a seniority list of the
integrated grades II and III as on June 25, 1979 and before objections taken by
the petitioners to the seniority list were dealt with, another seniority list
was published on June 30 1983.
The petitioners assailed the aforesaid
seniority lists as violative of the constitutionally guaranteed equality of
opportunity in the matter of public service in as much as direct recruits who
came into the service long after the departmental promotees were regularly
promoted have been assigned seniority over the earlier promoted departmental
promotees. It was further contended, that the seniority list of June 30, 1983
was objectionable as it leaves blank spaces for future recruits either as
direct recruits or by limited departmental examination and who are yet to come
into the service to be placed over promotees like the petitioners who were
already in service for a long time. The seniority lists having been drawn up on
the principles of quota-rota and on the facts of the case and the relevant
rules were violative of Articles 14 and 16.
The writ petitions were contested by the
Central Governments contending that the seniority lists were drawn up in
accordance with the principles governing seniority in the grade as per Rule 25,
and that were recruitment to a service was from more than one source and each
source was assigned a quota of vacancies, the seniority was to be determined
according to rota keeping in view the available vacancies to each source While
departmental promotion is made after the Departmental Promotion Committee makes
recommendations recruitment through examination is time consuming there is a
time gap between publication of results and joining of candidates and it is
therefore not practically possible to strictly adhere to the quota in any
particular year. The Administration 433 Overcame this difficulty by rotation of
vacancies ensuring that over a period of ; time the required quota was fully
met. Blank spaces were left in the seniority list for giving seniority to
persons who have still not joined service and are likely to join at an
uncertain date. This process would not push down the seniority of the
petitioners as they would occupy the same serial No. in the seniority list.
When the Writ Petitions were being heard,
Respondent No. 26 appeared and contested the claim of the petitioners
contending that all Assistants in Grade IV who put in the required number of
years of service were eligible for participating in the limited departmental
examination, promotions based on the result of such an examination would
therefore not be violative of Art. 14 Delay in holding of the examination
cannot work to the disadvantage of those who had taken the examination and
qualified for promotion and therefore they should be accommodated in the
vacancies which had come into existence and where available for the quota from
the date the vacancies came into existence. The two seniority lists were
consequently valid and in consonance with the statutory rules.
Allowing the Writ Petitions, ^
HELD: (1) The impugned seniority lists
challenged by the petitioners have been drawn up in violation of the provisions
of Arts. 14 and 16 of the Constitution and therefore they are quashed. The
first respondent is directed to draw up fresh seniority list. All promotions
granted since the filing of the petitions must be readjusted. [460B- C] In the
instant case, direct recruitment had not been made for years. Limited
competitive examination had also not been held for years. Promotions from the
select list had been presumably in excess of the quota but the promotees were
appointed to substantive vacancies in the service and had been holding the
posts as in the case of the petitioners for over 6 to 8 years. The promotions
were not styled as temporary, adhoc or stop gap. The impugned seniority lists
were drawn up by rotating vacancies for each source, and if no recruitment was
made from that source in a given year, the place in the list available to that
source was kept open and a later recruit at any distance of time from that
source would be assigned that place over persons who were already recruited
from other sources and would be working in substantive vacancies. The direct
recruit thus scores a march over a promotee. The seniority list is consequently
violative of Articles 14 and 16 and therefore deserves to be quashed. [453E;
C-D] (2) Once the promotees were promoted regularly to substantive vacancies
even if temporary unless there was a chance of their demotion to the lower
cadre, there continuous officiation confers on them an advantage of being
senior to the later recruits under Rule 21 (4). If by the enormous departure or
by the power to relax, the quota rule was not adhered to, the rota rule 434 for
inter-se seniority as prescribed in Rule 25(i)(ii) cannot be given effect, In
the absence of any other valid principle of seniority it is well established
that continuous officiation in the cadre, grade or service will provide a valid
principle of seniority. The seniority lists having not been prepared on this
principle are liable to be quashed and set aside. [459G-H; 460A] (3) Where
recruitment to a service or a cadre is from more than one source, the controlling
authority can prescribe quota for each source. where the quota is prescribed, a
rule of seniority by rotating the vacancies can be a valid rule for seniority.
However if the rule of seniority is inextricably inter twined with the quota
rule and there is enormous deviation from the quota rule, it would be unjust,
inequitous and unfair to give effect to the rota rule. [456B-C] A. Janardhana
v. Union of India & Ors. [1983] 2 SCR 936. S. Gupta v Union of India [1975]
Suppl. SCR 491., A.K. Subramana v. Union of India [1973] 2 SCR 979., P.S. Mahal
and Others v. Union of India & Ors. AIR 1984 SC 1291., O.P.
Singla and Anr. v. Union of India & Ors.
AIR 1984 SC 1595, S C. Jaisinghania v. Union of India & Ors. [1967] 2 SCR
703, Bishan Sarup Gupta etc v. Union of India & Ors. 11975] I SCR 104,
referred to.
(4) What is known in service Jurisprudence as
seniority according to continuous officiation in the cadre from the grade has
been statutorily recognised in Rule 21(4). This is in tune with fairplay and
justice and ensures equality as mandated by Art. 16. [454E] (5) A block of
recruits in a given year coming from three independent sources may be
integrated inter-se according to quota and rota. The block in a subsequent year
would be always junior to the bloc of recruits in the earlier years. This is
how Rules 21(4) and 25(i) (ii) can be harmoniously read and it is
unquestionable that they operate in two different situations and both have to
be given effect to. [455A-B] (6) Rule 29(A) confers power to relax any of the
provisions of the 1964 Rules and this also comprehends Rule 13(1) which
prescribes quota. When the power to relax any of the provisions is exercised,
the Controlling Authority must be of the opinion that it is necessary of
expedient so to do for reasons to be recorded in writing. Failure to record
reasons will not invalidate the exercise of power. Once the power to relax a
mandatory rule exists and action in derogation of the rule has been repeatedly
taken year after year, it would be a permissible inference that the action was
taken in relaxation of the rule for which the power exists. [457B-C] Bachand
Singh and Anr. v. Union of India & Ors. [1972] 3 SCR 898., Montreal Street
Railway Company v. Normandi, AIR 1977 P.C. 142., State of U.P. v. Manboden Lal Srivastava
[1958] SCR 533, N.K. Chandan and Ors. v. State of Gujarat [1977] I SCR 1037,
referred to.
435
ORIGINAL JURISDICTION Writ Petition (Civil)
No. 13248 to 13257 of 1983 (Under Article 32 of the Constitution of India)
Madan Bhatia and Sushil Kumar for the Petitioners.
N.C. Talukdar, M.K Ramamurthy, R.N. Poddar,
A.K Nag, and M.A. Rehman for the Respondents.
Respondent No. 26 in person.
The Judgment of the Court was delivered by
DESAI, J. We are back to square one. The same rigmarole of unending disputes as
to inter-se seniority between promotees, direct recruits and recruits as per
the result of the limited competitive examination with quota-rota as the
guiding star for determining inter se seniority are put in the lap of The
Court.
This time the service is the Indian Foreign
Service Branch 'B' ('IFS 'B' for short). This service was constituted by the
memorandum of Govt. Of India, Ministry of External Affairs dated July 16, 1956.
The service was consisted of two cadres; a general cadre and two sub cadres 1)
Stenographer sub-cadre and 2) Cypher sub-cadre forming what is styled as
special cadre. The general cadre comprises 6 grades. Various provisions were
made in the Memorandum for recruitment to various grades. Para V provided for
general conditions of eligibility for appointment in the service at the initial
constitution. Para V provided that recruitment to grade l, II and III of the
general cadre will be made on the recommendations of the Senior Selection Board
of which the Chairman will be the Chairman of the Union Public Service
Commission or his nominee. Selection to other grades will be made by the Junior
Selection Board in consultation with Union Public Service Commission. Para VIII
provided for inter se seniority of persons selected for grades I, II and III of
the general cadre. Appendix to the Memorandum sets out sanctioned strength of
posts in various grades of lFS B' and the scales of pay attached to each grade.
Petitioners were selected by the Union Public
Service Commission according to the merits obtained at the examination
conducted for the purpose in 1955 for appointment to the post of Assistant, and
were allocated to the Ministry of External Affairs. After the 436 initial
constitution of the service in 1956 petitioners were offered an option whether
they would like to join IFS 'B' in Grade lV at the time of its initial
constitution. The memorandum constituting the service provided that future
maintenance of the service would be governed by the rules to be promulgated for
the purpose by the Central Govt.
Accordingly by its notification dated May
6,1964, the Govt. of India, Ministry of External Affairs in exercise of all the
powers conferred by Art. 309, promulgated Indian Foreign Service Branch 'B'
(Recruitment, Cadre, Seniority and Promotion) Rules, 1964 ('1964 Rules' for
short). By the afore-mentioned rules, grades II and Ill were integrated and the
grade was styled as integrated grade II and IIl in general cadre.
Petitioners came to be "promoted between
1976-1979 from grade IV to integrated grade II and III. The Govt. Of India
published a seniority list of officers in the integrated grade Il and III of
the general cadre of 'IFS 'B' as on June 25,1979. Petitioners contend that the
seniority list is violative of the constitutionally guaranteed equality of
opportunity in the matter of public service in as much as direct recruits who
came into service long after the departmental promotees were regularly promoted
to the aforementioned grade have been assigned seniority over the earlier promoted
departmental promotees. Before objections taken by the petitioners to the
seniority list were dealt with the Central Govt. in supersession of seniority
list dated June 25,1979 published another seniority list of the officers in
integrated grade II and III of IFS 'B' as on June 30,1983. Petitioners contend
that the seniority list dated June 30,1983 suffers from the same vice and is
all the more objectionable inasmuch as it leaves blank spaces for future
recruits either as direct recruits or by limited departmental examination and
who are yet to come into service to be placed over promotees like the
petitioners who have already been in service for a long time. The petitioners
contend that the impugned seniority list appears to have been drawn up on the principle
of quota-rota and that in the facts of this case and the relevant rules it is
violative of Art. 14 and 16 of the Constitution. Petitioners also assert that
if Rule 25(13 (ii) is not construed harmoniously with Rule 21 of the 1964
Rules, Rule 25(1) (ii) would be violative of the guaranty of equality enshrined
in Art. 16. To be precise, the contention is that where there is recruitment to
a cadre from more than one source and the recruitment has to conform to the
quota prescribed for each source, simultaneously interlinking the inter-se
seniority in respect 437 Of recruits entering service from different sources to
the quota for . each source, if the quota reserved for any source is not filled
in for a long time and the vacancies allotted to the source are carried forward
and the later day recruits from that source are given deemed seniority over the
earlier recruits from the other sources, it has the pernicious tendency to give
an undeserved advantage to a later recruit over the earlier recruit and it would
be violative of Arts. 14 and 16. If it is held that Rule 25(1) (ii) has
precedence over Rule 21, then Rule 25(1) (ii) is unconstitutional inasmuch as
failure to recruit enough number of persons to the extent of the quota reserved
for the source in a reasonable time, in the absence of any power to carry
forward vacancies available to that source, the rota rule of seniority would be
discriminatory in character and lead to denial of equality in the matter of
appointment to public service. It was submitted in such a situation the rota
rule would break down under the weight of massive departure from the quota
rule, and the seniority rule. being inextricable inter-twined with the quota
rule if given effect to would be unjust, unfair and inequitous and would be
violative of Art. 14.
The Under Secretary in the Ministry of
External Affairs filed an affidavit-in-opposition. Averment in Para II of the
petition that petitioners were working as permanent section officers in the
integrated Grade II and III in the general cadre of the IFS 'B' was not
controverted. After referring to Rule 13 of the 1964 Rules, it was stated that
both the impugned seniority lists were drawn up in accordance with the
principles governing seniority in the grade as per Rule
25. It was stated that where recruitment to a
service or cadre is from more than one source and each source is assigned a
quota of vacancies, in order to do justice to recruits from all sources, the
seniority is to be determined according to rota keeping in view the available
vacancies to each source. It was conceded that in integrated grade II and III,
the recruitment is done from three different channels and quotas have been
fixed for all these channels, but the recruitment is not done at the same time.
While the depart- G mental promotion is made after departmental promotion
committee makes recommendations, the recruitment through examination is
time-consuming because there is a time gap between publication of results and
joining of candidates. It was further stated that it is not practically
possible to strictly adhere to the quota in any particular year because
candidates nominated by the Union Public Service Commission may even decline to
join service and additional candi 438 dates can be taken from subsequent examinations
only. It was further submitted that the administration overcomes this
difficulty by adhering to the quota by rotation of vacancies ensuring that over
a period of time, the quota requirement is fully met. The two impugned
seniority lists were sought to be sustained on the footing that by and large
quota was adhered to and a slight delay or variation in time schedule would not
permit an inference that as the quota rule was not adhered to, the rota rule of
seniority cannot be given effect. Replying to the averments made in the
petition that vacancies allotted to each source and not filled in at the
relevant time were being carried forward for years and that when the carried
forward vacancies were filled, the recruits were given retrospective deemed date
for seniority relatable to the coming into existence of the vacancy for that
source without such a provision being found in 'the relevant rules, it was
stated that vacancies have been carried forward, if at all because of the
non-availability of the candidates and in the absence of a stipulation in the
relevant rules permitting diversion of vacancies from one quota to another, it
was inevitable that the quota of vacancies allotted to a source have to be
carried forward. Replying to the averments that in the impugned seniority list
blank spaces have been left open for giving seniority to persons who have still
not joined the service and are likely to join at some uncertain date, it was
submitted that this process would not push down the seniority of the petitioners
as they would occupy the same serial No. in the seniority list.
When the matter was being heard in the Court,
one Radhey Shyam Aggarwal, respondent No. 26 in the petition appeared and filed
his affidavit. He was recruited to Grade IV IFS 'B' in 1964 through the open
competitive examination held by Union Public Service Commission. He was
promoted to integrated Grade II and llI on the result of the limited
departmental competitive examination held by the Union Public Service
Commission in 1977. He stated that all Assistants in the Grade lV who have put
in the required number of years of service are eligible for participating in
limited departmental examination and that as the equality in this behalf is
guaranteed to all those similarly situated, such holding of examination and
promotion based on the result of the examination would not violate Art. 14.
Referring to Rule 13, he stated that the
recruitment to the integrated Grade II and III is from three independent
sources with quota of vacancies assigned to each, the quota should be more or
less adhered to so as not to give any unintended benefit 439 to individuals
entering through the source of recruitment over others. It was stated that
accepting the contention of the petitioner would tantamount to giving
unintended benefit to the promotees promoted in excess of the quota
temporarily. It was further stated that delay in holding of the examination
cannot work to the disadvantage of those who have taken the examination and
qualified for promotion and therefore they should be accommodated in the `
vacancies which have come into existence and were available for the quota from
the date the vacancies came into existence notwithstanding the fact that the
examination was held at a later date and the results were published still later
and appointment was made thereafter. In short, he submitted that the two
seniority lists were valid and in consonance with the statutory rules.
Before we proceed to examine the contention
of the petitioners on merits, it is necessary to refer to the rules of
recruitment and seniority relevant to Integrated Grade II and III. Rule 13
which provides for recruitment to posts in the Integrated Grade II and III of
the general cadre reads as under:
"13. Recruitment to posts in the
Integrated Grades II and III of the General Cadre:
1. (a) One sixth of the substantive
vacancies, in the Integrated Grades II and III of the General Cadre shall be
filled by direct recruitment on the results of competitive examinations held by
the Commission for this purpose from time to time. The remaining vacancies
shall be filled by the substantive appointment of persons included in the
Select List for the Integrated Grades II and III of the General Cadre. Such
appointments shall be made in 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. G (b) Temporary vacancies in the Integrated
Grades II and IlI of the General Cadre shall be filled by the appointment of persons
included in the Select List for the Integrated Grades II and III of the General
Cadre. Any vacancies remaining unfilled there after shall be filled first from
among the person 440 approved for inclusion in the Select List and there after
by the temporary promotion on the basis of seniority subject to the rejection
of the unfit of permanent officers of Grade IV the General Cadre and Grade II
of the Cypher Sub-Cadre who have rendered not less than eight years of approved
service in any one grade or the two Grades and are within the range of
seniority. Such promotions shall be terminated when persons included in the
Select List for the Integrated Grades II and III of the General Cadre become
available to fill vacancies.
(2) The Select List referred to in clauses
(a) and (b) of sub rule (l) shall be prepared in the following manner:
(i) 33-1/3 per cent of the quota for
inclusion in the Select List shall consist of persons to be promoted on the
basis of a limited competitive examination to be held by the Commission for
this purpose from time to time; and (ii) the rest of the promotion quota for
inclusion in the Select List shall consist of persons to be promoted on the
basis of seniority subject to the rejection of the unfit of the officers of the
Grade IV of the General Cadre and Grade II of the Cypher Sub-Cadre who have
rendered not less than eight years of approved service in any one Grade or both
the Grades.
Provided that if any person appointed to such
a Grade is considered for promotion to the Integrated Grades II and III of the
General Cadre in accordance with the provisions of this sub-rule, all persons
senior - to him in that Grade shall also be considered notwithstanding that
they may not have rendered eight years of approved service in that Grade or
Grades, as the case may be.
(3) The Controlling authority shall, from
time to time lay. down the ratio in which the available vacancies in the 441
Integrated Grades II and III of the General Cadre shall be filled from Grade IV
of the General Cadre and Cypher Assistants of the Cypher Sub-Cadre. This ratio
shall be fixed, as far as possible, on the basis of the relative strength of
the respective cadre posts.
Illustration: If the strength of Grade IV of
the General Cadre is 720 and that of the Cypher Assistants of the Cypher Sub-
cadre 120, the ratio for promotion shall be 6: 1." Chapter III contains
provisions for fixation of seniority in different grades. Rule 21 lays down a
general provision for fixing of seniority. Sub-rule 4 is relevant, which reads
as under:
"21. (4) Subject to the other provisions
of this rule, persons promoted or recruited earlier on the basis of earlier
selection or recruitment shall be senior to those promoted or recruited on the
basis of subsequent selection or recruitment." Rule 22, 23 and 24 provide
for seniority inter-se of direct recruits, seniority inter-se of officers
promoted on the results of limited competitive examination and seniority
inter-se of officers promoted to a grade on the recommendations of a
departmental promotion committee respectively but amongst themselves. Then
comes Rule 25 which provides for seniority inter-se of the officers appointed
to a grade from different sources. It reads as under:
"25. Seniority inter-se of the officers
appointed to a Grade from different sources.
(1) Integrated Grade 11 & III of the
General Cadre.
(i) The eligible persons in Grade IV of the
General Cadre and Cypher Assistants of the Cypher Sub Cadre shall be arranged
in separate lists In the order on their relative seniority in their respective
Grades. Thereafter the Departmental Promotion Committee shall select persons
for promotion from each list upto the prescribed quota as indicated in rule 13
and arrange all the persons selected from the two lists in a consolidated order
of merit which 442 will determine the seniority of persons on promotion to
Integrated Grades II and III of the General Grade (ii) Direct recruits to a
Grade and persons substantively appointed to the Grade from the Select List for
the Grade shall be assigned seniority inter-se according to the quotas of
substantive vacancies in the Grade reserved for direct recruitment and the
appointment of persons included in the Select List, respectively " 1964
Rule have been enacted in exercise of power conferred by the proviso to Art.
309 of the Constitution and are thus indisputably statutory in character.
Recruitment to Integrated Grade II and III of the general cadre is from two
independent sources namely (i) direct recruitment on the result of a
competitive examination held by the Union Public Service Commission for this
purpose from time to time and (ii) by the substantive appointment of persons
included in the Select List for Integrated Grade II and III of the General
Cadre. The Select List for the purpose of filling vacancies by substantive
appointment has to be prepared from persons coming from two independent sources
as required by Rule 13(2) namely persons to be promoted on the basis of a
limited competitive examination to be held by the Commission for this purpose
and promotion from Grade IV for inclusion in the Select List on the basis of
seniority in Grade IV of the General Cadre and Grade II of Cypher sub- cadre,
who have rendered not less than 8 years of approved service in any grade or
both the grades. In short, recruitment to Integrated Grade II and III will be
from three sources: (i' 1/6th of the substantive vacancies to be filled in by
direct recruitment on the result of a competitive examination to be held by the
Union Public Service Commission, (ii) 33 1/3% of the remaining 5/6th of the
vacancies had to be filled in by bringing them on the Select List on the basis
of the results of a limited competitive examination and the remaining vacancies
to be filled in by promotion on the basis of seniority from Grad IV of General
cadre or Grade II of Cypher cadre who have rendered not less than 8 years of
approved service. There is thus recruitment to Integrated Grade II and III from
three independent sources and a quota is fixed for recruitment from each source.
The quota as here in above set out was introduced by amending Rule 13 as, per
notification dated February 12 1975. Earlier the quota for direct recruits was
25% of the vacancies for a period of 5 years and 443 then 33 1/3% of the
vacancies. The quota for the other two sources was 25% of the remaining
vacancies on the result of limited competitive examination and the balance to
be filled in by promotion according to seniority in the feeder grade.
Thus the quota for direct recruits was raised
from 25% to 33 1/3% and reduced to 1/6th of the vacancies i.e. 162.3%. The
impugned seniority lists have been drawn up rotating vacancies for each source
and if no recruitment is made from that source in a given year, the place in
the list available to the source as per rotation is kept open and a later
recruit at any distance of time from that source will be assigned that place
over persons who are already recruited from other sources and would be working
in substantive vacancies. The net effect of a drawn-up seniority list in this
manner is that a promotee in a given year even within its quota may go down to
a much later direct recruit as the place in rotation is kept open for him
without limitation of time. This is the crux of the matter.
A bird's eye-view of the relative position of
the petitioners who are all departmental promotees in the two impugned
seniority lists would bring into focus the contours of controversy.
--------------------------------------------------------
S.No. of the Name of the Place in the Place in the petitioners petitioner 1979
senior- 1983 senior- ity list ity list
--------------------------------------------------------- 1 2 3 4
---------------------------------------------------------
1. G.S. Lamba 397 163
2. S.K.Chibber 380 147
3. Kul Bhushan 375 144
4. I.S. Ailawadi 398 164
5. K.D. Avdhani 379 146
6. Q L. Khanijow 387 153
7. Ranvir Chawla - 244
8. N.D. Kharbanda 422 181
9. V.N. Sharma 483 222
10. M. Jayaraman 463 208
------------------------------------------------------- 444 It will be
presently pointed out that the petitioners whose placements are indicated here
and who have entered the service would be junior to those who enter later into
service and would be placed at the vacant places in the list which are for
purpose of clarity enumerated hereunder. It will show that those who are yet to
come would become senior to those in service and have entered service number of
years ahead to them. And one is not sure at what length of time the few
entrants will enter service, The inequity, if it can be so called may be
demonstrably pointed at this stage with reference to the seniority list of
1979. Placements in this list at Sr. Nos.
294, 300, 305, 312, 318, 324, 330, 336, 342,
348, 354, 360, 366, 372, 378, 384, 390, 396, 402, 408, 414, 420, 426, 432, 438,
444, 456, 462, 468, 474, 480 and 486 have been kept open or vacant and are to
be filled in at a later date by assigning seniority to direct recruits who
would be recruited to the service for the first time after June 25, 1979 relevant
to which seniority list was drawn up. These later recruits at some unknown
future date would score a march by nearly a hundred steps over the one at No.
486 already in service by regular promotion. Similarly placements at Sr. Nos.
377, 381, 385, 389, 392, 395, 399, 403, 406, 410, 413, 417, 421, 424, 428, 431,
435, 439, 442, 446, 449, 453, 457, 460, 464, 467, 471, 475, 478, 482, 485, and
489 have been kept vacant for recruits who would be recruited to the grade on
the result of a limited departmental examination which would be held after June
25, 1979. In other words, whose who would come into service after June 25, 1979
either from the source of direct recruitment or from the source of limited
competitive examination would fill in the above vacant places in the seniority
list and thereby score a march over others who have not only been in service on
June 25, 1979 and have been substantively promoted and have become members of
the service and who have been included in the seniority list for the service,
Turning now to the impugned seniority list of June 30, 1983 which for all
practical purposes supersedes the seniority list of June 25, 1979, placements
at Sr. Nos. 170, 175, 179, 184, 189, 193, 197, 203, 209, 215, 221, 227, 233,
239 have been kept vacant and these places would be filled in by direct
recruits who would join at some future date not specified, after June 30, 1983.
The disturbing 445 feature is that when direct recruitment will be made at some
future date after June 30, 1983, the first vacant place at Sr. No. 170 would be
assigned to the first in the list of direct recruits and even though he would
enter the service for the first time somewhere after June 30, 1983, he would be
senior to the departmental promotee holding a substantive post at Sr. No. 171
Sh. D. R. Goel from February 2, 1978 and he would also be senior to a recruit
from the source of limited competitive examination recruited on November 13,
1979 and placed in the seniority list at Sr. No. 172, one Shri Gurcharan S.
Singh. It would be advantageous to recall here that the eligibility criterion
for appearing at a competitive examination to be held by Union Public Service
Commission for direct recruitment as per Rule 20 of 1964 Rules would be in
accordance with the regulations made from time to time by the Government in
consultation With the Union Public Service Commission wherever such
consultation is necessary. The regulations were not referred to in the course
of hearing of these petitions. But if the criterion was to be a graduate's degree
than any-one appearing at a competitive examination after June, 1983 soon after
graduation may not have passed HSC examination in 1976 or 1978 and yet the
departmental promotees of that year would be junior to such a schoolian. This
is the net out come of seniority rule being based on rotation of vacancies
available to each source and quota not being filled in from time to time when
the vacancies occur. The unfortunate outcome is the same as was noticed by this
Court in A. Janardhana v. Union of India & Ors.(1) However, while keeping
aside this unjust and inequiutous outcome and uninfluenced by it, we may first
look at the relevant rules for determining inter-se seniority of persons
recruited from three independent sources.
The service was constituted in 1956. However
the statutory rules came into force on May 5, 1964. The constitution of the
service by a memorandum of the Govt. Of India in 1956 was in exercise of the
executive powers of the Government of India. The statutory rules came into
force from May 6, 1964 and since then the service is governed by the 1964
Rules. Commencing from the advent of 1964 Rules, the recruitment from three
sources as actually made may be noticed. Information in this chart is according
to averments in Para 16 of the petition:
(1) [1983] 2 SCR 936, 446
----------------------------------------------------------- Year Departmental
Direct Limited Departmental Promotees recruits examination appoin- tees
----------------------------------------------------------- 1964 7 - - 1965 6
10 - 1966 - - - 1967 - - - 1968 - - 3 1969 - - 8 1970 - - - 1971 - - - 1972 34
- 25 1973 29 - 10 1974 5 - 14 1975 39 11 2 1976 26 5 16 1977 - 11 4 1978 47 7 2
1979 36 6 2 1980 27 3 5 1981 24 6 - 1982 24 2 - 1983 24 2 -
---------------------------------------------------------- 360 63 91
---------------------------------------------------------- With reference to
Para 16 and the chart in the petition, in the return filed on behalf of the
first respondent Government of India it is stated that the chart does not give
true and correct picture and was denied. It is stated that the exact figures
are given in the chart annexed as Annexure 'A' to the return. It reads as
under;
447 ANNEXURE 'A' "Para 16: The figures
of recruitment through the different channel given by the petitioners are
incorrect and misleading.
The correct figures are as given below:- Year
DPs LDE DRs Remarks 1964 15 - 11 1965$ 1966$ 1967$ 40 9 - 1968$ 1969 1970 - - -
1971 33 19 1972 - 7 - 1973 35 18 12(18*) *Indent. Can- didates joined in 1975.
1974 - 5 5(6*) *Indent. Joined in 1976.
1975 35 15 8 Joined in 1977 1976 30 5 7*
*Indent 1977 - 5 5* *Indent 1978 55 19 4* *Indent 1979 36 18 14* *Indent 1980
44 15 4* *Indent 1981 24 12 7* *Indent 1982 24 12 8* *Indent." As far as
the figures OF direct recruits given for the years 1973 11 to 1982, the column
recites that the figures therein mentioned are of 448 the indent sent by the
Union Public Service Commission for making direct recruitment but there is
nothing to show how many joined as direct recruits. Accepting the information
as supplied by the respondent Union of India, what strikes one at a glance is
that the recruitment from three sources was never according to quota nor
according to available vacancies for each source. Record as disclosed does not
indicate that the vacancies available to a particular source but not filled in
during the relevant period were carried forward. No attempt was made to
undertake direct recruitment in the years 1965, 1966, 1968, 1969, 1970, 1972,
1974 and 1977. Similarly limited competitive examination was not even held in
the years 1964, 1965, 1966, 1968, 1969 and 1970.
Indisputably there was large scale departure
from the quota rule.
It may also be mentioned that in the counter
affidavit, no attempt has been made to give information about the vacancies
available in each year and their splitting up according to the quota for each
source and to point our whether in-any given year there was a short fall in the
recruitment from a particular source and or there was excess recruitment from
some other source.
The first thing to be noticed is that the
statutory rules do not provide for carry forward of vacancies occurring in a
given year to the next recruitment. The feeble and inaudible plea to justify
carry forward of vacancies was non-availability of candidates for filling in
vacancies available to a source.
It is of some importance to note that the
petitioners are members of the service and belong to Integrated Grade II and
III in the General Cadre of IFS 'B'. They hold substantive posts and there is
nothing to show that their promotions when made were either temporary or adhoc
or till such time as a regular recruit is available from the other source
according to quota though their promotions appear to be in excess of the quota
available for the source. The quota is related to vacancies. Rule 13(1) which
provides for quota clearly recites that l/6th of the substantive vacancies in
the Integrate- Grade II and III of the General cadre shall be filled in by
direct recruitment etc.
Therefore, it is undeniable that quota is
related to vacancies. If the quota has to be scientifically implemented it
would be incumbent upon the first respondent to satisfactorily establish the
number of vacancies available every year since the constitution of service; the
number of vacancies available according to quota reserved for each source; the
recruitment done during the 449 year from that particular source and to state
whether all the vacancies allocable to each source were filled in from the
concerned source and if not so filled in, whether any recruitment in excess of
the quota was made from other sources. It must further be shown whether such
excess recruits were given temporary, stop-gap or adhoc promotion subject to
availability of candidates from other sources who were entitled to fill in
those vacancies and that this was done for a B short period and till the
candidates, regularly recruited from the sources to which vacancies were
allocated were available to fill in the vacancies held by the recruits in
excess of the quota from the other sources. No such information was
forthcoming. The only justification offered for not filling in vacancies by
recruits from each source according to its quota is that the procedure for
direct recruitment as also the procedure for holding limited competitive
examination is prolix, time consuming and dilatory and therefore the
recruitment made at a later date from such source could not work to the
disadvantage of such recruits by pushing them down below those whose promoted
in excess of the quota available to that source.
If Rule 25(1)(ii) which provides for inter-se
seniority of direct recruits to a grade and persons substantively appointed to
the grade from the select list for the grade, upon its true construction,
permits leaving open placement in the seniority list to be filled in at a later
date by recruits coming from the source for whom placements according to
rotation are kept open, would such rule or such implementation of the rule of
seniority be violative of Art.
16 ? It is too late in the day to dispute
that it would be open to the Government, while constituting a service, to
provide for recruitment to it from more than one source and also to reserve
quota for each source. As a logical corrolory, it would equally be open to the
F Government to provide for seniority rule related to rotation of vacancies.
Shortly this is called quota rule of
recruitment and rota of rule of seniority inter-linking them. So far there is
no controversy. The contention of the petitioners is that in implementing this
rule there has been such large scale deviation that it results in denial of
equality to the members of the service similarly circumstanced. It will be
presently demonstrably established that where rota rule of seniority is
interlinked with quota of rule of recruitment, and if the latter is
unreasonably departed from and breaks down under its own weight, it would be
unfair and unjust to give effect to the rota rule of seniority. To some extent
this is not res integra. Though some advance has been made on this proposition
in later decisions.
450 In B.S. Gupta v. Union of India(l) a
Constitution Bench of this Court after taking note of the fact that 214 posts
were upgraded from Income-tax Officers Grade II to Income Tax Officers Grade I,
held that with the upgrading of a large number of posts and the appointment to
them of promotees, the quota rule collapsed and the seniority rule having a
link with the quota rule would meet the same fate.
In A.K. Subramana v. Union of India (2) it
was observed that 'when recruitment is from two or several sources, it should
be observed that there is no inherent invalidity in introduction of quota
system and to work it out by a rule of rotation. The existence of a quota and
rotational rule by itself will not violate Art. 14 or 16 Of the Constitution.
It is the unreasonable implementation of the
same, which may, in a given case attract the frown of the equity clause.' In
P.S. Mahal and Others v. Union of India & Ors. (3) the Court after
reiterating the afore-quoted observations in A.K. Subramana case observed as
under:
"The rotational rule of seniority is
inextricably linked with the quota rule and if the quota rule is not strictly
implemented and there is large deviation from it regularly from year to year,
it would be grossly discriminatory and unjust to give effect to the rotational
rule of seniority." In the period between the decisions in B.S. Gupta's
case and A.K. Subramana's case, this Court threadbare examined the legal position
in relation to quota-rota rule and a large scale deviation from it with its
consequent effect on the seniority rule. In Janardhana's case this Court in
terms held that 'As quota rule was directly inter related with the seniority
rule, and once the quota rule gave way, the seniority rule became wholly otiose
and ineffective. It is equally well-recognised that where the quota rule is
linked with the seniority rule, if the first breaks down or is illegally not
adhered to giving effect to the second would be unjust, inequitous and
improper. It may incidentally be mentioned that this view was approved and
reiterated in P.S. Mahal's case.
(1) [1975] Suppl. SCR. 491.
(2) [1973] 2 SCR 979 (3) AIR 1984 SC 1291 451
In O.P. Singla and Anr. v. Union of India & Ors. (1) Chandrachud, C.J.
speaking for the majority after taking note of the proviso to Rule 7 and Rule 8
of the Delhi Higher Judicial Service Rules, 1979 held that upon its true
interpretation, the proviso prescribed a quota and Rule 8(2) provided for rotational
system of giving seniority according to the quota. After taking note of the
earlier decisions it was held that where recruitment is from two independent
sources, the rule of seniority on a rotational basis could not be held to be
unconstitutional or violative of Art. 16.
The Court then proceeded to examine the
effect of enormous departure in the matter of recruitment according to quota
and its shadow over the interlinked seniority. Says the learned Chief Justice:
"However, instances are not unknown
wherein though the provision of a rule or a Section is not invalid, the manner
in which the provision is implemented in practice, leads to the creation of
disparities between persons, who, being similarly, circumstanced are entitled
to equal treatment." After taking note of Rule 16 and 17 of the same
rules, it was observed as under:
"Promotees who were appointed under Rule
16 have been officiating continuously without a break as Additional District
and Sessions Judges for a long number of years. It is both unrealistic and
unjust to treat them as aliens to the Service merely because the authorities
did not wake up to the necessity of converting the temporary posts into
permanent ones, even after some of the promotees had worked in those posts from
five to twelve years." It was found as a fact that the provision
prescribing the quota of direct recruitment and promotees was put in cold
storage for a long time. After noticing this ugly fact, the majority proceeded
to observe as under:
"In these circumstances, it will be
wholly unjust to penalise the promotees for the dilatory and unmindful attitude
of the authorities. It is not fair to tell the promotees that they will rank
junior to the direct recruits who were appointed five to ten years after they
have officiated continuously in (1) AIR 1984 SC 1595 452 the posts created in
the service and held by them though such posts may be temporary. This Court
atleast must fail them not." The Court after taking note of the fact that
large number of persons were promoted to temporary posts and such temporary
promotees officiated on substantive posts held that the proviso to Rule 7 which
prescribes a quote for direct recruits and provide for rotational system of
vacancies between them and the promotees who were appointed to the service, the
rule of seniority according to rotation of vacancies between promotees and
direct recruits according to quota must inevitably break down when promotions
of promotees are made to the service under Rule 16 and 17. The majority quoted
with approval the following passage from the judgement in Janardhana's case:
"But, having done that we do propose to
examine and expose an extremely undesirable, unjust and inequitable situation
emerging in service jurisprudence from the precedents namely that a person
already rendering service as a promotee has to go down below a person who comes
into service decades after the promotee enters the service and who may be a
schoolian, if not in embryo, when the promotee on being promoted on account of
the exigencies of service as required by the Government started rendering
service. A time has come to recast service jurisprudence on more, just and
equitable foundation by examining all precedents on the subject to retrieve
this situation." The learned Chief Justice made a pertinent observation
that the observations in the extracted passage are not without relevance to the
case before him and lent considerable support to the conclusion which has been
recorded in the judgment. Thus the ratio in Janardhana's case has stood the
scrutiny of two later decisions of different benches of this Court. It may
incidentally be mentioned that the minority view also affirmed the approach and
the observations in Janardhana's case.
The sum total of the afore-mentioned three
judgments may be freely re-stated in the telling expression in Janardhana's
case which reads as under .
453 "It is therefore time to clearly
initiate a proposition that a direct recruit who comes into service after the
promotee was already unconditionally and without reservation promoted and whose
promotion is not shown to be invalid or illegal according to the relevant
statutory or non-statutory rules, should not be permitted by any principle of
seniority to score a march over a promotee because that itself being arbitrary
would be violative or Arts. 14 ant 16." Now proceeding on the assumption
that Rule 25 (I) (ii) is valid and therefore seniority inter-se between
recruits from three different sources has to be computed according to the quota
by rotating substantive vacancies in the grade reserved for each source, if in
actual implementation it creates disparities between persons who are similarly
circumstanced and thereby deny equal treatment, the rule would be violative of
Art. 16. The outcome is not on account of an invidious implementation of the
rule but non- implementation of a part of rule for years. The end product as
will be demonstrably established is unjust and unfair and yet this unjust and
unfair action is being sup- ported by the Union of India which was responsible
for utter inaction in implementing the rule in its letter and spirit and for
unreasonably long intervals. As pointed out earlier, direct recruitment has not
been made for years. Limited competitive examination has also not been held for
years. Promotions from the select list have been presumably in excess of the
quota but they were appointed to substantive vacancies in the service and have
been holding the posts as in the case of petitioners for over 6 to 8 years. The
promotions were not styled as temporary, adhoc or stop-gap- Blanks related to
allocated vacancies kept open for future direct recruits and candidates
qualifying at limited competitive examination in the seniority list indicate 17
that if the next direct recruitment is made, say in 1990 and the limited
competitive examination is held in 1988, the recruits from the aforementioned
two sources will have to be placed at Sr. No. 170 in the case of direct
recruits and little down below in case of a candidate qualifying at the limited
competitive examination. The direct recruit already placed at Sr. No Fin 170 in
1990 would score a march over departmental promotees of 1978 and persons in
service after qualifying at the limited competitive examination in 1988. The
emerging situation would be in pari materia with what was found by this Court
in Janardhana's case and O.P. Singla's case and the reasons therein mentioned
will mutatis mutandis apply for quashing the seniority list for the self same
reason.
454 Approaching the matter from a slightly
different angle, in our opinion, Rule 21(4) and Rule 25(1) (ii) both can be
harmoniously read because they operate in two different areas. Rule 21(4)
provides that subject to other provisions of this rule (not all rules) persons
promoted or recruited earlier on the basis of earlier selection or recruitment
shall be senior to those promoted or recruited on the basis of subsequent
selection or recruitment. If the expression 'selection' refers to those
promoted via the select list and the expression 'recruitment' refers to those
entering service by direct recruitment, in view of Rule 21(4) those who enter
service by 'recruitment' or 'selection' at any time will always necessarily be
senior to those promoted or recruited on the basis of a subsequent selection or
recruitment. This is what Rule 21(4) provides. In terms it caters to a
situation where recruitment or selection is at intervals with a time lag.
Vacancies in the cadre or the grade arise every year. Normally the substantive
vacancies in the cadre have to be filled in as they occur or within a
reasonable time. The process of selection and recruitment must continuously be
in operation roughly from year to year.
By the impact of Rule 21(4), the selection or
recruitment of one year shall have precedence over selection or recruitment of
the next year and this is what is known in service jurisprudence as seniority
according to continuous officiation in the cadre or the grade which has been
statutorily recognised in sub-rule 4 of Rule 21. This is in tune with fairplay
and justice and ensures equality as mandated by Art. 16. Now Rule 25(1) (ii)
provides for integrating direct recruits and persons entering via the select
list to a grade. It is implicit in sub-clause (ii) of Rule 25(1) that it would
operate at a time when in a given year almost simultaneously or within a
measurable distance from each other recruitment is made from all the other
sources. To illustrate if in a given year candidates are selected for
appointment to the grade by direct recruitment as also by holding the limited
competitive examination and giving promotion and if all the three enter the
service or the grade at or almost at the same time or within the year and
within a reasonable time lag from each other, a question is bound to arise how
to integrate all of them entering service from different sources in the common
seniority list.
Rule 25(1) (;;) caters to this situation and
helps in integrating appointees from three sources to be integrated into common
seniority list according to quota. Now contrast Rule 25(1) (ii) with Rule 21(4)
and the meaning of Rule 25(1) (;;) reveals itself and becomes clear and
understandable. A block of recruits in a given year coming from 455 three
independent sources may be integrated inter-se according to quota and rota. The
block in subsequent year would be always junior to the block of recruits in the
earlier years. This is how Rule 21(4) and 25(1) (ii) can be harmoniously read
and it is unquestionable that they operate in two different situations and both
have to be given effect to.
Now turning to the impugned seniority lists,
what the Union of India appears to have done is that it has applied the quota
and rotated the vacancies but where candidates from a particular source were
not available, the vacancies were deemed to be kept open (some kind of carry
forward) to be filled in by later recruitment from the same source years after
the vacancy occurred, but in the meantime the vacancy was filled in presumable
by excess recruitment from the other sources. That is clearly either
non-implementation of the quota rule or mal-functioning of the quota rule and
yet the rota rule is adhered to which is both impermissible under the Rules as
well as unjust, unfair and inequitous being violative of Arts. 14 and 16. 1) It
was however contended on behalf of the respondents that the quota prescribed by
Rule 13(1) being mandatory in character, any appointment in excess of the quota
in any year would render the excess appointees as irregularly appointed and
they would not become members of the service and hang outside the service, and
can be demoted. It was said that once recruits are available from the source
for which quota was prescribed, the promotees in excess Or their quota can and
must be replaced by later entrants. It was submitted that such excess promotees
have to be demoted but to solve them from this harsh situation, the courts have
evolved a rule that they may be pushed down and regularised in subsequent
years. This indulgence, it was said, cannot be claimed as a matter of right and
therefore such excess promotees cannot claim seniority over recruits from other
sources who may have come at a later date. Reliance was placed in two decisions
of this Court in S.G. Jaisinghani v.
Union of India & Ors. (1) and Bishan
Sarup Gupta etc. v Union of India & Ors. (2) These two decisions are of
little help in; view of the later decisions directly on the point and discussed
hereinabove, (1) [1967] 2 S.C.R.. 703, (2) [1975] 1 S.C.R. 104, 456 The
language of Rule 13(1) appears to be mandatory in character. Where recruitment
to a service or a cadre is from more than one source, the controlling authority
can prescribe quota for each source. It is equally correct that where the quota
is prescribed, a rule of seniority by rotating the vacancies can be a valid
rule for seniority.
But as pointed out earlier if the rule of
seniority is inextricably intertwined with the quota rule and there is enormous
deviation from the quota rule, it would be unjust, inequiutous and unfair to
give effect to the rota rule. In fact as held in O.P. Singla's case, giving
effect to the rota rule after noticing the enormous departure from the quota
rule would be violative of Art. 14. There fore assuming that quota rule was
mandatory in character as pointed out earlier, its departure must permit
rejection of rota rule as a valid principle of seniority;
The matter can be viewed from a different
perspective.
The question that may be posted is "Was
the quota rule mandatory in character" ? Rule 29(a) confers power on the
controlling authority to relax any of the provisions of the l 964 rules. It
reads thus:
"29(a) Where the Controlling authority
is of opinion that it is necessary of expedient so to do, it may be ordered,
for reasons to be recorded in writing to relax any of the provisions of these
rules with respect to any class or category of persons or posts.
Provided that in relation to posts falling
within the purview of the commission, no order in respect of a class or
category of persons or posts shall be made except after consultation with the
Commission." The controlling authority is defined in Rule 2F to mean the
Government of India in the Ministry of External Affairs.
Therefore the Government of India in the
Ministry of External Affairs enjoys the power, if it is necessary or expedient
so to do, to relax any of the provisions of these rules, with respect to any
class or category of persons or posts. The proviso carves out an exception that
in relation to posts falling within the purview of the Union Public Service
Commission no order in respect of a class or a category of persons or posts
shall be made except after consultation with the 457 Commission. We will
presently deal with the effect of non- consultation of the Commission in a
given situation.
However, Rule 29(a) indisputably confers
power to relax any of the provisions of the 1964 Rules which shall also
comprehend Rule 13(1) which prescribes the quota.
Undoubtedly, when the power to relax any of
the provisions of the Rules is exercised, the controlling authority must be of
the opinion that it is necessary or expedient so to do for reasons to be
recorded in writing before exercising the power. It is well-settled that
failure to record reasons will not invalidated the exercise of power. Once the
power to relax a given, mandatory rule exists and an action in derogation of
the rule has been repeatedly taken year after the year, it would be a
permissible inference that the action was taken in relaxation of the rule for
which the power exists and in this case is located in Rule 29(a). To hold
otherwise would be to come to rather disconcerting conclusion that a body like
the Government of India acted deliberately in contravention of the mandatory
rule from year to year. It would as far as possible be proper to avoid such an
inference unless it is inescapable. In this case as pointed out earlier for
years 1965 to 1972 b there was no direct recruitment and even for the later
years only an indent was placed and not recruitment done, and during all these
years a large number of persons from Grade IV were promoted as departmental
promotees to the Integrated Grade II and III.A body like the Government of
India presumably knew that there is a statutory quota for recruitment but is
also presumably knew that it had power to relax and for exigency of service
repeatedly acted in derogation of the quota rule, and therefore it would be
permissible to infer that the action was taken in relaxation of the mandatory
quota rule. This view which we are taking is in accord with the decision of the
Constitution Bench in Pachan Singh and Anr. v Union of India & Ors. (1)
wherein this Court held that though the direct recruitment was made in
consultation with the Union Public Service Commission though not in accordance
with the prescribed procedure namely on the result of a competitive
examination, as the country was in a state of emergency, the appointment and
selection was made by interview only and that such appointment by direct
recruitment was made by relaxation of the relevant rules and the power was
located in the Government of India to relax the rules. No specific order was
shown in that case vouchsafing that the appointments were made in relaxation of
the rule but the court (1) [1972] 3 S.C.R. 898.
458 inferred from various relevant
circumstances then prevailing that the appoints not in consonance with the
prescribed procedure for direct recruitment must have been made in relaxation
of the rules. When the question again came up in Janardhana's case the Court
held that if direct recruitment was made in relaxation of the relevant rules,
the same reasons will mutatis mutandis apply to hold that promotions in excess
of quota were given by relaxing the rules. It is therefore reasonable to
believe in this case that though the quota was mandatory it was not adhered to
by exercising the power of relaxation both qua persons and posts.
It was however contended that it is not
permissible to infer that promotions in excess of quota were given by relaxing
the quota rule because the posts in Integrated Grade II and III were within the
purview of the Union Public Service Commission and the proviso to Rule 29(a)
mandates that power to relax is hedged in with a condition that it can be done
after consultation with the Commission, and there is nothing to show that the
Commission was ever consulted. Undoubtedly, the proviso to Rule 29(a) requires
that the controlling authority cannot relax any of the provisions of the rules
in respect of posts which are within the purview of the Union Public Service
Commission unless after consultation with the Commission. It was submitted that
nothing is placed on the record by the petitioners to show that power to relax
the quota rule was exercised after consultation with the Union Public Service
Commission.
Assuming that there was no consultation,
would the exercise of power to relax be vitiated and the appointments made in
relaxation of the mandatory quota rule would be ab initio invalid. Commencing
from the decision of the Privy Council in Montreal Street Railway Company v.
Normandi,(1) it is well settled that 'when the provisions of a statute relate
to the performance of a public duty and the case is such that to hold null and
void acts done in neglect of this duty would work general inconvenience or
injustice to persons who have not control over those entrusted with the duty
and that at the same time would not promote the main object of the Legislature,
in has been the practice to hold such provisions to be directory only, the
neglect of them, though punishable, not affecting the validity of the acts
done.' The view was expressed in the context of the failure to revise list of
Jurors by the Sheriff according to the revised statutes of Quebec and
conviction was challenged on the ground of Mistrial held by selecting (1)AIR
1977 P.C. 142 459 Jurors from unrevised lists. The challenge failed. Coming
home in h State of U.P. v. Manbodon Lal Srivastava(1) a Constitution Bench of
this Court specifically held that where consultation with the Public Service
Commission is provided as required by Art. 320(3)(c) of the Constitution such
provision is not mandatory and they do not confer any rights on public servants
so that the absence of consultation or irregularity in consultation does not
afford him a cause of action in a court of law. There are number of subsequent
decisions to which our attention was called reiterating the same principle.
Therefore assuming there was failure to consult the Union Public Service
Commission before exercising the power to relax the mandatory quota rule and
further assuming that the posts in Integrated Grade II and Ill were within the
purview of the Union Public Service Commission and accepting for the time being
that the Commission was not consulted before the power. to relax the rule was
exercised yet the action taken would not be vitiated nor would it furnish any
help to Union of India which itself cannot take any advantage of its failure to
consult the Commission. Therefore it can be safely stated that the enormous
departure from the quota rule year to year permits an inference that the
departure was in exercise of the power of relaxing the quota rule conferred on
the controlling authority. Once there is power to relax the mandatory quota
rule, the appointments made in excess of the quota from any given source would
not be illegal or invalid but would be valid and legal as held by this Court in
N.K. Chandan and Ors. v. State of Gujarat(2). Therefore the promotion of the
promotees was regular and legal both on account of the fact it was made to meet
the exigencies of service in relaxation of the mandatory quota rule and to
substantive vacancies in service.
Once the promotees were promoted regularly to
substantive vacancies even if temporary unless there was a chance of their
demotion to the lower cadre, their continuous officiation confers on them an
advantage of being senior to the later recruits under Rule 21(4). If as stated
earlier by the enormous departure or by the power to relax, the quota rule was
not adhered to, the rota rule for inter- se seniority as prescribed in Sec.
25(1)(ii) cannot be given effect. In the absence of any other valid principle
of seniority it is well established that the continuous officiation in the
cadre, grade of service will (1) [1958] S.C.R. 533. (2) [1977]1 S.C.R., 1037,
460 provide a valid principle of seniority. The seniority lists having not been
prepared on this principle are liable to be quashed and set aside.
Accordingly these writ petitions succeed and
the rule is made absolute. The impugned seniority lists challenged by the
petitioners have been drawn up in violation of the provisions of Arts. 14 and
16 of the Constitution and therefore they are quashed. The first respondent is
directed to draw up fresh seniority list in the light of the observations made
in this judgment within a period of three months from today. All promotions
granted since the filing of the petitions are subject to the decision herein
given and they must be readjusted to be brought in consonance with this
judgment. It the circumstances of the case, there will be no order as to costs.
N.V.K. Petition allowed.
Back
