Karam Pal & Ors Vs. Union of India
& Ors [1985] INSC 48 (12 March 1985)
MISRA RANGNATH MISRA RANGNATH BHAGWATI, P.N.
SEN, AMARENDRA NATH (J)
CITATION: 1985 AIR 774 1985 SCR (3) 271 1985
SCC (2) 457 1985 SCALE (1)488
CITATOR INFO: D 1986 SC 638 (12,21) R 1987
SC2359 (20)
ACT:
Labour and Services:
Central Secretariat Service Rules, 1962,
Rules 13, 18 and Regulation 3 of Fourth Schedule-Seniority and Promotion of
direct recruits and promotees-Quota and rota rules- Whether select list can be
challenged in the absence of challenge to the Rules and Regulations.
HEADNOTE:
The petitioners 1 Assistants are covered by
the Central Secretariat Service Rules, 1962 (Rules, for short). They challenged
under Art. 32 the correctness of the Select List for the grade of Section
Officers for the years 1978, 1979 and 1980 and the common seniority list dated
April 26, 1979 as also the provisional supplementary list of Assistants on the
ground: (i) that the quota rule had broken down as direct recruitment had not
been made in many years and on account of such failure, fixation of seniority
with reference to the rotational method was not available to be followed; and
(ii) that Select List as contemplated by the Rules had not been framed for
quite a long period and in the absence of such a select list framed in time,
select lists of 1978, 1979 and 1980 prepared without following the criterion of
length of service of officers in the grade of Assistants was not only unfair
and arbitrary worked out prejudicially to the petitioners. The petitioners
prayed that the select list and seniority list be republished on the basis of
length continuous service in the grade of Assistants and promotion to the grade
of Section Officers be granted from the dates when Assistants junior to them were
promoted as Section Officers. On the other hand, Respondent No. 1-Union of
India argued that there had been regular direct recruitment into the Service in
all years except only two, viz., 1966 and 1970. Thus, the quota rule has,
therefore, really not broken down as pleaded by the petitioners and the Rules,
having contemplated a scheme of direct recruitment and promotion, quota and
rota have to work together and since the manner of fixation of seniority is
covered by statutory rules, the petitioners are, not entitled to claim
determination of seniority on the basis of length of service.
272 Dismissing the Writ Petitions, ^
HELD:1 (i) It will be appropriate if a
detailed reference to the Rules is made in order to ascertain the Scheme. The
Rules contemplate that there shall be separate cadres in respect of Section
Officers' grade and the Assistants' Grade and these shall be constituted for
each Ministry or Office specified in Column 2 of the first schedule. Sub-rule
(6) of Rule 13 prescribes that 50% of the vacancies in the Assistants' grade in
any cadre is to be filled by direct recruitment on the results of the
competitive examinations to be conducted by the Commission from time to time
and the remaining vacancies are to be filled by substantive appointment of
persons included in the select list for the Assistants' grade in that cadre.
Such appointments are to 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 appointment in his turn. When difficulties were experienced in working
out the Rule, two provision were added to sub-rule(6). The first proviso
provided that substantive vacancies in any cadre reserved for direct
recruitment on the appointed day against which no direct recruits have been
appointed may be filled by substantive appointments made after the date of
commencement of the Central Secretariat Service (Third Amendment) Rules, 1970,
of persons included in the Select List for the Assistants' grade in that cadre.
The second proviso was to the effect that if sufficient number of candidates
are not available for filling up the vacancies in a cadre in any year by direct
recruitment as aforesaid, the unfilled vacancies in the direct recruitment
quota in that cadre shall be filled by the substantive appointment of persons
included in the Select List for the Assistants' Grade in that cadre."
Sub-rule (6)(a) provides that notwithstanding anything contained in sub-rule
(6), the substantive vacancies reserved for direct recruitment as on 30th June
1979 on each cadre against which no direct recruits have been appointed till
that date plus 50% of the number of such substantive vacancies n the cadre may
be filled by substantive appointments made after the date of commencement of
Central Secretariat Service (Third Amendment) Rules, 1979, of persons included
in the select list for the Assistants' grade in that cadre." [276D;
278C-D; H; 279A] 1(ii). Rule 18, sub-rule(3) makes provision for the rule in
the matter of fixation of inter se seniority for the Assistants' grade. Direct
recruits are to rank inter se in the order of merit in which they are placed in
the competitive examination on the result of which recruitment is effected.
Recruits of an earlier examination are to rank senior to those of a later
examination, Persons appointed substantively to the grade from the select list
for that grade shall rank inter se according to the order in which they are so
appointed and the inter se seniority between direct recruits and persons substantively
appointed to the grade for that grade shall be regulated in accordance with the
provision made in the Fourth Schedule. Clause 3 of Regulation 3 in the Fourth
Schedule provides that 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. The proviso to Clause 3 of Regulation 3
provides that persons appointed substantively in accordance with the provi- 273
sions of sub-rule (6) of rule 13 to the Grade from the Select List in any cadre
in any year, against direct recruitment vacancies for which direct recruits are
not available shall be placed en bloc below the last direct recruit appointed
in that year irrespective of the quotas reserved for direct recruits and
persons included in the Select List. [279F-G; 279H; 280A] 2. (i) The Rules have
held the field for 22 years now.
During this period direct recruitment had not
been made only in two years being 1966 and ]970 Though in the writ petitions a
general stand had been adopted that direct recruitment had not been made in
several years, after the counter affidavit was filled and it was emphatically
asserted that excepting in these two years direct recruitment had been made in
other years, there has been no challenge to that assertion. There is no doubt
that quota and rota have got to go hand in hand and if the quota is not
properly adhered to, the rota System must fall. In fact, the scheme is such
that it can operate in an appropriate way only when recruitment is effected
through both the processes as envisaged. In the instant case, the difficulty was
experienced in working out the process with the quota fixed by the Rules had
not been adhered to for one reason or the other and vacancies were being
carried forward for being filled up in future years. This situation
necessitated insertion of the first proviso to sub-rule (6) or rule 13 in
August 197() and the other proviso in 1977 as also sub-rule (6) (a) in 1979.
The grievance voiced in these writ petitions obviously relates to a period
prior to the modification of the scheme.
[280H; 281A-D] 2 (ii) Unless there is any
serious failure in implementing the Rules and grave injustice is done to some
individuals or a group of officers, it would not be proper to interfere with
the working of the scheme and dislocate the inter se seniority of the officers in
these grades. No mala fides has been pleaded nor has any grave injustice been
established in the writ petitions. At the most a case of improper working of
the scheme with reference to some of the officers has been alleged.
Hari-splitting arguments, if accepted, might indicate that some of the
petitioners have not been promoted to the grade of Section Officers as and when
due. This Court is of the view that if there has been substantial compliance in
implementing the scheme under the Rules, judicial interference is not called
for. [282B-C] Dr. G. Marulasiddaiah v. Dr. T.G. Siddapparadhya & Ors.
[1971] 1 S.C.C. 568, N.K. Chauhan & Ors
v. State of Gujarat
State of U.P. & Ors. [1981] 1 S.C.R. 449
& V.T. Khanzode & Ors. v. Reserve Bank of India & Anr. [1982] 3
S.C.R. 411 referred to.
S.B. Patwardhan & Ors. etc. v. State of
Maharashtra & Ors. [1977] 3 S.C.R. 775. & A. Janardhana v. Union of
India & Ors [1983] 2 S.C.R. 936 held inapplicable.
3. Neither in the writ petitions nor in
arguments any challenge was advanced against the vires of the Rules. In the
absence of challenge to the Rules and the Regulations, resultant situations
flowing from compliance of the 274 same are not open to attack. Occasion for
similar grievance would not arise in future as the proviso in the relevant
regulation and clauses (4) and (5) Of the Regulation 3 will now meet the
situation. [280F-G] & ORIGINAL JURISDICTION: Writ Petition Nos.
9328,9333/82 & 4830/83 (Under Article 32 of the Constitution of India) R.K.
Garg, V.J. Francis, for the petitioners.
Shanti Bhushan, Miss A. Subhashini, A. Subba
Rao for the Respondents.
S.N. Andley, S.S. Jouhar, R.N. Poddar, K.M.
Sharma, Randhir Jain, J.D. Jain and Mrs. K. Kocher for the Interveners.
The Judgment of the Court was delivered by
RANGANATH MISRA. J. These 12 applications under Article 32 of the Constitution
are by Assistants covered by the Central Secretariat Service Rules, 1962
('Rules' for short), and challenge is to the select list for the grade of
Section Officers for the years 1978, 1979 and 1980, and the common seniority
list dated April 26, 1979, as also the provisional supplementary list of
Assistants dated August 21,1980. They have further prayed that the select list
and seniority list be re-published on the basis of length of continuous service
in the grade of Assistants and promotion to the grade of Section Officers be
granted from the dates when Assistants junior to them were promoted as Section
Officers.
The Rules framed under the proviso to Article
309 of the Constitution came into force from October 1,1962. Under the Rules,
the Central Secretariat Service was constituted and as per rule 3 there are
four grades in the Service classified as follows:
(i) Selection Grade (Deputy Secretary to the
Government of India or equivalent);
(ii) Grade I (Under Secretary to the
Government of India or equivalent);
(iii) Section Officers;
(iv) Assistants.
275 The first two grades are classified as
Central Civil Service, Grade 'A', while the other two are known as the Central
Civil Service, Grade 'B' Ministerial. Post in the first three grades are
gazetted while posts in the Assistants' Grade are non-gazetted. The Rules
contemplate that there shall be separate cadres in respect of Section Officers'
grade and the Assistants' grade and these shall be constituted for each
Ministry or office specified in col. 2 of the First Schedule. Under rule 4, a
single point gradation list in respect of officers of the Selection Grade and
Grade I for all the Ministries or offices specified in col. 2 and for the
offices specified against such Ministries or offices in col. 3 of the Schedule
is to be maintained.
The Rules contemplate direct recruitment as
also promotion in respect of certain grades.
According to the petitioners the quota rule
had broken down as direct recruitment had not been made in many years and on
account of such failure, fixation of seniority with reference to the rotational
method was not available to be followed. The petitioners also contended that
select lists as contemplated by the Rules had not been framed for quite a long
period and in the absence of such a select list framed in time, select lists of
1978, 1979 and 1980 prepared without following the criterion of length of
service of officers in the grade of Assistants was not only unfair and
arbitrary but worked out prejudicially to the petitioners.
The main grievance of the petitioners in
short is that the scheme for fixation of seniority and consequently the
provisions relating to promotion having not worked out as contemplated, the
manner of determination of seniority should be usual rule of total length of
service and action taken otherwise should be struck down and seniority should
be directed to be redetermined on the basis of length of service only. F
Respondent No. 1, Union of India, has challenged these allegations by
contending that the manner of fixation of seniority is covered by statutory
rules and the petitioners are, therefore, not entitled to claim determination
of seniority on the basis of length of service; the plea of the petitioners
that there had been no direct recruitment for several years is denied and it
has been pleaded that direct recruits have come into the service in all years
except only two, viz., 1966 and 1970. The quota rule has, therefore, really not
broken down as pleaded by the petitioners and the rules having contemplated a
scheme of direct recruitment and promotion, quota and rota have to work
together Therefore, fixing seniority 276 with reference to the rotational
method was not open to challenge. The Rules have been in force for well over
two decades. Great care has been taken in making provision in the Rules to
safeguard the interests of the different groups and greater care has also been
taken by the Department of Personnel in the Ministry of Home Affairs to give
effect to the Rules. Since the officers are drawn from different Ministries for
promotion and working out the scheme involves a somewhat complicated process,
as long as the policy under the Rules has been given effect to, the working
should not be allowed to be attacked merely on account of a casual failure to
work up to mathematical precision.
Before we start examining the correctness of
the rival contentions advanced on either side, it is appropriate that a
detailed reference to the Rules is made in order to ascertain the scheme.
'Cadre' has been defined in rule 2, sub-rule
(2) to mean the group of posts in the grades of Section Officer and Assistant
in any of the Ministries or offices specified in col. 2 of the First Schedule
and any of the offices specified against such Ministry or office in col. 3 of
that Schedule. 'Cadre Officer' in rule 2(g) in relation to the Section
Officers' grade or the Assistants' grade means a member Of the service of the
Section Officers' grade or Assistants' grade, as the case may be, and includes
a temporary officer approved for long term appointment to that grade. 'Long
term appointment' means under rule 2(1) appointment for an indefinite period as
different from a purely temporary or ad hoc appointment. Common Seniority List'
has been defined in rule 2(hh) in relation to any grade to mean the seniority
list of officers in that grade serving in all the cadres specified in the First
Schedule as on the appointed day any revised from time to time in accordance with
the regulations to be framed in that behalf by the Central Government.
'Probationer' has been defined in clause (o) of rule 2 to mean a direct recruit
appointed to a grade on probation in or against a substantive vacancy, and
'select list' under rule 2(q) is defined to mean the select list prepared in
accordance with the regulations made under rule 12(4) or under the regulations
contained in the Fourth Schedule. Rule 8 contemplates the initial constitution
of each cadre and provides that the permanent and temporary officers of the
Section Officers' grade and the Assistants' grade in each cadre on the
appointed day shall be determined by the Central Government in the Department
of 277 Personnel & Administrative Reforms in the Ministry of Home Affairs.
Rule 12 makes provision for recruitment to
selection grade and grade I. We are not concerned with this rule in the present
case as the dispute is raised by Assistants and the promotional rank to which
claim has been laid is that of Section Officer. For them rule 13 is the
relevant rule. Sub- rules (1) to (5) relate to Section Officers while the
remaining sub-rules (6) to (10) relate to Assistants. At the time when the
Service was constituted sub-rule (1) read thus:
"Subject to the provisions of sub-rule
(3), for a period of five years from the appointed day, 1/4 of the substantive
vacancies in the Section Officers' grade in any cadre and thereafter, 1/3 of
the substantive vacancies in that grade, shall be filled by direct recruitment
on the results of the competitive examinations held by the Commission for this
purpose from time to time.. " Sub-rule (I) of rule 13 as it now stands
reads thus:
"1/6 of the substantive vacancies in the
Section Officers' grade in any cadre shall be filled up 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
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." It is
thus clear that the proportion of direct recruits has been reduced from the
initial l/4th or 1/3rd to the present 1/6th.
Sub-rule (2) of rule 13 prescribes:
"Temporary vacancies in the Section Officers grade in any cadre shall be
filled by the appointment of persons included or approved for inclusion in the
select list for the Section Officers' grade in that cadre. Any vacancies
remaining thereafter shall be filled in equal proportion from among the (a)
officers of the Assistants' grade who have rendered 278 not less than 8 years'
approved service in the grade and are within the range of seniority on the
basis of seniority subject to the rejection of the unfit.. and (b) officers of
the Assistants' grade in that cadre with the longest period of continuous
service in that grade on the basis of length of service subject to the
rejection of the unfit." Sub-rule (5) prescribes the preparation of a
select list of Assistants for promotion to the Section Officers' grade and the
manner of preparing and revising the select list has been set out in the Fourth
Schedule.
Sub rule (6) prescribes that 50% of the
vacancies in the Assistants' grade in any cadre is to be filled by direct
recruitment on the results of the competitive examinations to be conducted by
the Commission from time to time and the remaining vacancies are to be filled
by substantive appointment of persons included in the select list for the
Assistants' grade in that cadre. Such appointments are to 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 appointment in his turn. When
difficulties were experienced in working out the rule, two provisos were added
to sub-rule (6), one with effect from December 15, 1979. these were to the
following effect:
"Provided further that substantive
vacancies in any cadre reserved for direct recruitment on the appointed day
against which no direct recruits have been appointed may be filled by
substantive appointments made after the date of commencement of the Central
Secretariat Service (Third Amendment) Rules, 1970, of persons included in the
Select List for the Assistants' grade in that Cadre.
Provided also that if sufficient number of
candidates are not available for filling up the vacancies in a cadre in any
year by direct recruitment as aforesaid, the unfilled vacancies in the direct
recruitment quota in that cadre shall be filled by the substantive appointment
of persons included in the Select List for the Assistants' Grade in that
cadre." Sub-rule (6) (a) which was inserted along with the latter proviso
authorised: "Notwithstanding anything contained in sub-rule (6), the
substantive vacancies reserved for direct recruitment as on 30th June 1979 on
each cadre against which no direct recruits have been appointed till that date
plus 50% of the number of such 279 substantive vacancies in the cadre may be
filled by substantive appointments made after the date of commencement of
Central Secretariat Service (Third Amendment) Rules, 1979, of persons included
in the select list for the Assistants' grade in that cadre." Under rule 15
every direct recruit to the grade of Assistant is Initially to be appointed on
probation for the period of two years from the date of appointment and every
person other than a direct recruit when he is appointed would be on trial for a
period of two years also. Rule 16 makes provision for confirmation of
probationers subject to passing of prescribed tests and satisfactory completion
of probation.
Rule 18 prescribes seniority in the different
grades as on the appointed day. Sub-rule (1) indicates that relative seniority
shall be as already determined on that day and if there had been no such
determination the same has to be determined by the Department of Personnel
& Administrative Reforms. Sub-rule (2) provides that all permanent officers
included in the initial constitution of a grade shall rank senior to all
persons substantively appointed to that grade after the appointed day and all
temporary officers included in the initial constitution of a grade under rule 8
shall rank senior to all temporary officers appointed to that grade after the
appointed day. Rule 18. sub-rule (3) makes provision for the rule in the matter
of fixation of inter se seniority for the Assistants' grade. Direct recruits
are to rank inter se in the order of merit in which they are placed in the
competitive examination on the result which recruitment is effected. Recruits
of an earlier examination are to rank senior to those of a later examination.
Persons appointed substantively to the grade from the select list for that
grade p shall rank inter se according to the order in which they are so
appointed and the inter se seniority between direct recruits and persons
substantively appointed to the grade for that grade shall be regulated in
accordance with the provision made in the Fourth Schedule.
Regulation 3 in the Fourth Schedule deals
with seniority. Clause 3 of this regulation provides:
"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 280 recruitment and the appointment of persons
included in the Select List. respectively," From December 1977,
contemporaneously with the insertion of the second proviso to rule 13(6) of the
Rules, the following was added as a proviso to clause 3 of Regulation 3:
"Provided that persons appointed
substantively in accordance with the provisions of sub-rule (6) of rule 13, to
the Grade from the Select List in any cadre in any year, against direct
recruitment vacancies for which direct recruits are not available shall be
placed en bloc below the last direct recruit appointed in that year
irrespective of the quotas reserved for direct recruits and persons included in
the Select List." In Course of the hearing counsel for the petitioners
referred to instances where a direct recruit coming into the cadre several
years after others coming into the cadre from the Select List had been assigned
seniority over such promotees. This was explained by counsel for the
respondents to have been the outcome of giving effect to clause 3 of Regulation
3 as it stood prior to December, 1977 without the proviso. The instances relied
upon were found to be events prior to the introduction of the proviso. In the
absence of challenge to the Rules and the Regulations, resultant situations
flowing from compliance- of the same are not open to attack. Occasion for
similar grievance would not arise in future as the proviso in the relevant
regulation and clauses (4) and (5) of the Regulation 3 will now meet the
situation.
Neither in the writ petitions nor in
arguments before us any challenge was advanced against the vires of the Rules.
One of the known patterns of constituting public service, particularly in the
executive side, is to draw officers both by promotion as also by direct
recruitment.
The proportion is fixed depending upon the
nature of the service, the availability of suitable manpower and other relevant
considerations. The petitioners have, therefore, rightly not challenged before
us the scheme under which a moiety of the substantive vacancies in the
Assistants' grade is to be filled by direct recruitment and the other by
promotion through select lists.
The Rules have held the field for 22 years
now. During this period direct recruitment had not been made only in two years
281 being 1966 and 1970. Though in the writ petitions of general stand had been
adopted that direct recruitment had not been made in several years, after the
counter affidavit was filed and it was emphatically asserted that excepting in
these two years direct recruitment had been made in other years, there has been
no challenge to that assertion. We agree with the contention that quota and rota
have got to go hand in hand and if the quota is not properly adhered to, the
rota system must fail. In fact, the scheme is such that it can operate in an
appropriate way only when recruitment is effected through both the processes as
envisaged.
As we have already pointed out, difficulty
was experienced in working out the process when the quota fixed by the Rules
had not been adhered to for one reason or the other and vacancies were being
carried forward for being filled up in future years. This situation
necessitated insertion of the first proviso to sub-rule (6) of rule 13 in
August 1970) and the other proviso in 1977 as also sub-rule (6) (a) in 1979.
The grievance voiced in these writ petitions obviously relates to a period
prior to the modification of the scheme The petitioners had inter alia, prayed
for the relief of striking down the select lists and for direction that the
select lists he reframed on the basis of the length of continuous service in
the grade of Assistants. In view of what we have said regarding the claim of
seniority on the basis of length of continuous service, it is not at all
necessary to examine the validity of that contention and give any direction
regarding the select lists, particularly because the claim relating to
reconsideration of select lists was grounded upon length of continuous service.
Nothing was also shown in course of arguments
as to why the select lists were bad. Tn fact, unless the Rules and Regulations
are successfully assailed, the select lists are not at all disputable.
The field which these Rules cover is indeed
very wide one. Assistants in all the Ministries or offices specified in the
First Schedule are covered by the Rules. With a view to maintaining the
efficiency of the service and at the same time to meet the requirements and
exigencies of the service.
separate cadres have been formed in respect
of Assistants and Section Officers in the different Ministries and offices
attached to such Ministries. Notwithstanding the fact that these cadres are
different, the scheme makes provision for pro- 282 motional avenue taking all
of them into consideration.
Obviously, working it out keeping in view the
interests of so many employees in the different cadres is indeed a very onerous
and difficult task. This has, therefore, been assigned to the Department of
Personnel. Unless there is any serious failure in implementing the Rules and
grave injustice is done to some individuals or a group of officers, we do not
think it would be proper to interfere with the working of the scheme and
dislocate the inter se seniority of the officers in these grades. No mala fides
has been pleaded nor has any grave injustice been established in the writ
petitions. At the most a case of improper working of the scheme with reference
to some of the officers has been alleged. Hairsplitting arguments, if accepted,
might indicate that some of the petitioners have not been promoted to the grade
of Section Officers as and when due. We are of the view that if there has been
substantial compliance in implementing the scheme under the Rules, judicial
interference is not called for. In a vast country such as ours, a strong and
independent bureaucratic set up is indispensable. At the same time it is
equally necessary that the service from top to bottom must be alive to the fact
that it is its obligation to maintain proper attitudes, discipline and
duty-oriented working. While it is the right of every person in the Service
set-up to expect just and fair treatment in regard to his employment, frequent
litigation between him and the State involving countless other co-employees in
the Service in the battle is a deviation from the right direction. It is true
that very often instances come to light where the grievance is genuine and the
treatment meted is unwarranted and uncalled for.
Government in a democratic polity runs on
impersonal basis but on the cardinal code that every one shall perform his
duty. We may recall what this Court observed in Dr. G. Marulasiddaiah v. Dr.
T.G. Siddapparadhya & Ors.;
"The canker of litigiousness has spread
even to a sphere of life where discipline should check ambition concerning
personal preferment.A teacher is justified in taking legal action when he feels
that a stigma or punishment is undeserved but he is expected to bear with
fortitude and reconcile himself to his lot suppressing disappointment when he
finds a co-worker raised to a position which he himself aspired after."
(1) (1971) 1 S.C.R. 568.
283 There has been a phenomenal rise in
service disputes in the last three decades. It is time that serious attention
is devoted to discover the reason for it and take effective steps to ensure
curtailment thereof. Whether such litigations come before courts or tribunals
is of no consequence here. Frequent litigations between the State and its
employees ultimately affect the efficiency of the service and bring about
indiscipline, lack of loyalty and an attitude of indifference.
In the course of arguments reference was made
to certain decisions of this Court. In N.K. Chauhan & Ors. v. State of
Gujarat & Ors.,(l) this Court held that the quota system does not
necessitate the adoption of the rotational rule in practical application and
many ways of working out quota prescribed can be devised of which rota is
certainly one. It was further held that while laying down a quota when filling
up vacancies in a cadre from more than one source, it is open to Government,
subject to tests under Article 16, to choose 'a year' or other period or
vacancy by vacancy basis, to work out the quota among the sources. But once the
Court is satisfied, examining the constitutionality of the method proposed,
that there is no invalidity, administrative technology may have free play in
choosing one or the other of the familiar processes of implementing the quota
rule.
This Court did indicate that as Judges we
cannot strike down a particular scheme because it is unpalatable to forensic
taste. This Court further pointed out that ordinarily seniority is measured by
length of continuous officiating service. This, however, does not preclude a
different prescription, constitutionality tests being satisfied. When the Court
found that promotees had been appointed in excess of their quota, the following
direction was given:
"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." (1.) [1977] 1 S.C.R. 1037.
284 The rationale of this decision is indeed
very much against the contentions of the petitioners.
Reference was also made to the case of S.B
Patwardhan & Ors. etc. v. State of Maharashtra & Ors. (1). The dispute
that fell for adjudication in that case was one of seniority in the cadre of
Deputy Engineers and grievance had been laid that notwithstanding the length of
continuous service, later appointees had been shown as senior. Attention in the
decision was mainly confined to the terms of the provisions of the Rules
applicable to the State Engineering Service. In the view we have taken of the
matter this decision indeed does not help the petitioners.
Next is the case of Baleshwar Dass &
Ors., etc. v. State of U.P. & Ors.,(2) etc. This Court pointed out that for
the purposes of seniority appointment to the service in a substantive capacity
was necessary. But that again was said with reference to Rule 23 of the U.P.
Service of Engineers (Junior and Senior Scales- Irrigation Branch) Rules.
This Court in V.T. Khanzode & Ors. v.
Reserve Bank of India & Anr., (3)took not of the fact that " no scheme
governing service matter can be fool-proof and some section or the other of
employees is bound to feel aggrieved on the score of its expectation being
falsified or remaining to be fulfilled. Arbitrariness, irrationality,
perversity and mala fides will of course render any scheme unconstitutional but
the fact that the scheme does not satisfy the expectations of every employee is
not evidence of these.' ' Next is the case of A. Janardhana v. Union of India
& Ors.(4) That was a case relating to dispute of inter se seniority of
direct recruits and promotees in the Military Engineering Service. Seniority
lists drawn up earlier on the basis of length of service including continuous
officiation were subsequently altered to lists based on quota between direct
recruits and promotees leading to rota for confirmation and this led to the
dispute The Court found that some of the officers had been promoted prior to
the enforcement of the Rules (1) [1981] 1 S.C.R. 449.
(2) [1977] 3 S.C.R. 775.
(3) [1982] 3 S.C.R. 411.
(4) [1983] 2 S.C.R. 936.
285 in 1969. The Rules had no retrospective
effect and, therefore, seniority lists drawn up prior to the enforcement of the
Rules were not open to be revised and re-drawn up after the Rules became
operative The Court further found that the quota rule had not been worked out
and if rotational confirmation was to be done, many of the employees considered
hitherto senior would be very badly affected. Here again we must point out that
this decision has no application to the facts before us since on the finding
reached by us the quota rule was substantially complied with.
The writ petitions must accordingly fail. We
make no order for costs.
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