Conal
Bihimappa Vs. State of Karnataka & Ors [1987] INSC 206 (11 August 1987)
MISRA
RANGNATH MISRA RANGNATH DUTT, M.M. (J)
CITATION:
1987 AIR 2359 1987 SCR (3) 885 1987 SCC Supl. 207 JT 1987 (3) 321 1987 SCALE
(2)323
CITATOR
INFO : F 1991 SC 235 (6) RF 1991 SC1244 (9)
ACT:
Inter
se seniority between direct recruits and promotees amongst the officers of the
Karnataka Administrative Service--Dispute relating to.
HEADNOTE:
Under
the relevant Recruitment Rules relating to Class I junior scale posts, there
was a quota system--two-thirds of the vacancies had to be filled up by
promotion by selection from Class II officers and the remaining one-third by
direct recruitment by competitive examination to be held by Public Service
Commission.
When
direct recruitment was not made timely as envisaged by the scheme in the Rules,
officiating promotions were given in respect of the posts covered by the direct
recruit quota. Such temporary promotions remained effective for a number of
years and later when the vacancies within the direct recruitment quota were
filled up, the appointments made in the later years were deemed to carry weight
age for seniority on the footing of deemed filling up when the vacancies had
arisen. Thus, the dispute as to seniority inter se between those who had manned
the promotional posts beyond 2/3rds limit and the direct recruits subsequently
appointed, arose for judicial determination. This Court in V.P. Badami, etc. v.
State of Mysore and Ors., [1976] 1 SCR 313 had dealt with a similar situation
with reference to the same set of rules, and with a view to implementing the
rule of this Court in Badami's case, the State government had issued an
official memorandum on 5.7.75, laying down guide- lines for determination of the
seniority between the direct recruits and promotees, and accordingly, gradation
list of the junior scale officers as on 30.6.73 was drawn up, and notified on
10.8.75. By a later notification dated 2.2.77, a further gradation list was
published. Then, on a representation by the 1974 batch of direct recruits for
refixation of inter se seniority in the gradation list taking into account the
carried forward vacancies, the State Government made an order on 22.5.80 to the
effect that the 1974 batch of direct recruits should be shown immediately below
serial number 64 and above serial number 65 in the continuation gradation list
published on 2.2.77.
886
Aggrieved by this government direction, some promotees moved the High Court
under Article 226 of the Constitution for protection of their seniority, and
aggrieved by the decision of the High Court, both, the direct recruits and
promotees moved this Court for relief by appeals by special leave and writ
petitions. The promotees challenged the propriety of the direction of the High
Court to modify the gradation list by applying the quota rule, while the direct
recruits sought to have full application of the quota rule instead of the
limitation of three years, and the consequential benefits.
Allowing
the appeals and the writ petitions of the direct recruits and dismissing the
appeals by the promotees, the Court, HELD: The rule of this court in V.P.
Badami, etc. v. State of Mysore and others, [1976] 1 SCR 313 has to be given
full effect. The appeals and writ petitions of the direct recruits have to
succeed and those by the promotees have to fail. The Court hopes the State of
Karnataka will not demote anyone who has been in a promotional post for several
years in the Class II service as a consequence of this decision, but the
gradation list has got to be adjusted to fit into the principles indicated in
the judgment. No justification was shown as to why the State of Karnataka
failed to comply with its obligation of making recruitments in accordance with
the quota system. Once the State frames rules, the rules are binding on the
State, and like individuals, the State has got to resulate its conduct in
accordance with the rules; in fact, the State has to observe them all the more.
The
Court hopes that the State of Karnataka in the years ahead will comply with the
quota rule with regularity so that a litigation of this type may not arise
again. [907D-F] Upon a suggestion of the Court, counsel for the parties filed
charts, containing recast gradation list on the basis of the claims advanced
before the Court---showing (1) how it would be when the full claim of the
promotes was granted and (2) how different it would look when the total claim
of the direct recruits was allowed, and the Court notices that the process of
pushing up and down would be inevitable, but would be within reasonable limits
and no irreparable preju- dice was apparent. [907H; 908A-B] OBSERVATION: The
Court was struck by the innumerable rules framed within a period of about
thirty years to cover the field relating to constitution, recruitment and
provision for other conditions of service. It is proper that service rules
should be simple, making 887 reasonable Provision for necessary aspects. While
framing such rules, the relevant provisions of the Constitution and the laws in
force hove to be kept in view. There should be no frequent alteration of the
service rules. Exigencies of circumstances and unforeseen situations will
certainly justify alterations. Those would be indeed rare occasions.
[905H;
906A-B] Experience shows that legal battles are fought in court between
Government servants--whether an individual pitched against an individual or a
group against a group; this embitters relationship inter se and often results
in a switch-over of attention from public duty to personal cause.
Frequent
litigations against the State or the higher authorities in the hierarchies of
administration wipe out reverence, loyalty and the sense of discipline, and
substitute these by anger, disrespect and ram our In the process, fellow-feeling
is lost and the sense of brotherhood vanishes. The net result of all this is
the deprivation of the efficiency of the bureaucratic community to serve the
society. The undue growth of service litigation within the four decades of
independence clearly calls for these observations. As and when the occasion has
arisen, the Court has sought to draw the attention of the State as the '
employer as also the government servants to this aspect of the mat- ter. This
has been done not with a view to subjecting any litigant to undue criticism but
with the fond hope that it would help the problem to receive adequate
attention. The Court is surprised that the words spelt out in the different
judgments have fallen on deaf ears. Thereby the most powerful wing in the
administrative set up is gradually moving away from its designated path. There
have been cases where officers have been in court, litigating over service
disputes for about twenty-five to thirty years of their career, which would
mean almost three-fourth of their service period. What would be the
contribution of such officers to the public service, can be well imagined. Very
often a public officer is forced into litigation as he gets no justice from his
superior. There are also several instances where an officer drags the employee
into litigation without a cause of action. These are matters which must be
taken into ac- count without further loss of time and with fortitude so that
the most effective wing of the administration does not further lose its service
ability. [906B-G] A public servant is in the position of a trustee. Social
power vests in him for rendering service to the community.
Every
public servant has to be cognizant to that obligation.
Once
the level of that consciousness grows up, there is bound to be a corresponding
fail in the attitude 888 to litigate over small issues. It is for the
privileged public servant as also his employer to share this philoso- phy.
[906H; 907C] V.P. Badami, etc. v. State of Mysore & Ors., [1976] 1 SCR 313;
M.G. Kadali v. State of Karnataka & Ors., [1982] 2 K.L.J. 453; N.C. Sharma
v. Municipal Corporation of Delhi & Ors., [1983] 3 SCR 372; S.G.
Jaisinghani v. Union of India & Ors., [1967] 2 SCR 703; Bishan Sarup's
case, [1973] Suppl SCR 491; Bachan Singh & Anr. v. Union of India &
Ors., [1972] 3 SCR 390; Sabraman's case, [1972] 2 SCR 979; Col. A.S. Iyer &
Ors. v. V. Balasubramanyam & Ors., [1980] 1 SCR 1036; P.S. Sahal & Ors.
v. Union of India, [1983] 2 SCR 165;
A.
Janardhana v. Union of India & Ors., [1983] 2 SCR 165;
S.S.
Lamba and Ors. v. Union of India and Ors., [1985] 3 SCR 431; G.P. Doval and
Ors. v. Chief Secretary, Government of UP and Ors., [1983] 1 SCR 70; O.P.
Singla and Anr., etc. v. Union of India and Ors., [1985] 1 SCR 351; D.S. Nakara
and Ors. v. Union of India, [1983] 2 SCR 165; N.K. Chandan & Ors. v. State
of Gujarat, [1977] 1 SCR 1037; Karam Pal v. Union of India, [1985] 3 SCR 271
and Dr. T.C. Siddapparadhya
&
ORIGINAL/APPELLATE JURISDICTION: Writ Petition (Civil) No. 811 of 1986 etc.
etc. (Under Article 32 of the Constitution of India).
F.S.
Nariman, G.L. Sanghi, S.N. Kacker, R.C. Kaushik, D.K. Garg, Mohan Katarki, S.S.
Javali, Ravi P. Wadhwani, C.S. Vaidyanathan, K.V. Mohan, S. Ravindra Bhatt, P.
Chowd- hry, S.R. Setia and Mukul Mudgal for the Petitioner/Appel- lant.
G.
Ramaswamy, Additional Solicitor General, B.R.L. Iyengar, M. Veerappa and Ashok
Sharma for the Respondents.
The
Judgment of the Court was delivered by RANGANATH MISRA, J. The obstinate
problem of inter se seniority, this time amongst officers in the Karnataka
Administrative Service has fallen for determination in this group of appeals by
special leave and writ petitions under Article 32 of the Constitution at the
instance of both direct recruits and promotes.
It
is not disputed that under the relevant Recruitment Rules of 1957 in regard to
Class I Junior Scale posts there was a quota system-- 889 two-thirds of the
vacancies had to be filled up by promotion by selection from Class II Officers
and the remaining one- third by direct recruitment by competitive examination
to be held by the Public Service Commission. When direct recruitment had not
been made timely as envisaged by the scheme in the Rules officiating promotions
were given in respect of posts covered by the direct recruit quota. Such
temporary promotions remained effective for a number of years some- times
varying between 5 and 8--and later when the vacancies within the direct
recruitment quota were filled up, the appointments made in latter years were
deemed to carry weight-age for seniority on the footing of deemed filling up
when vacancies had arisen. Thus the dispute as to seniority inter se between
those who had manned the promotional posts beyond the 2 3rds limit and the
direct recruits subsequently appointed has come for judicial determination.
A
three-Judge Bench of this Court in V.P. Badami etc. v. State of Mysore &
Ors., [1976] 1 SCR 315 dealt with a situa- tion of this type with reference to
the same set of Rules. A similar dispute came before the Karnataka High Court
in a bunch of writ petitions filed both by promotees and direct recruits and in
view of common questions of fact and law involved therein, the High Court
disposed them by a common leading judgment in the case of M.G. Kadali v. State
of Karnataka & Ors., [1982] 2 KLJ 453. The High Court noticed the ratio in
Badami's case and found that with a view to implementing the rule in Badami's
case, the State Government issued an official memorandum on 5.7.1976. laying
down guidelines for determination of seniority between the direct recruits and
promotees. The Gradation List of Junior Scale officers as on 30.6.1973 was
drawn up following such guide- line and was notified on 10.8.1976 with the
following explanatory cover note:
(i)
Between 2.12.1957 and 10.9.1959, the number of substantive vacancies were
thirty- nine and of those, twenty-six were promotional and thirteen were the
share of direct recruits. The first fifteen of the promotional posts were given
to allottees and the remaining eleven to promotees. In the absence of direct
recruitment, these thirteen posts were carried forward;
(ii)
Between 11.9.1959 and 26.10.1964 (when 1962 direct recruits became due for
promotion), the vacancies were seventy-six, of which fifty-one were available
for direct recruits and twentyfive for promotees in view of the change in the
proportion in the 1959 Rules. Twentythree substantive vacancies were given to
direct 890 recruits of 1962. The net result, therefore, was 13 direct recruit
posts of the earlier period and twenty-eight of this period were carried
forward;
(iii)
After October 1964, the vacancies were classified on annual basis. Upto
7.10.1971, sixty vacancies were filled up by promotion.
As
noticed earlier forty-one direct recruits vacancies had been carried forward and
thirty- five fresh vacancies were available to direct recruits. Eleven
vacancies were filled up by direct recruitment and sixty-five were carried
forward.
By
a latter notification dated 2.2. 197 1, when a further gradation list was
published, the following explanatory note was added:
"(i)
During the period 7.6.1974 to 15.7.76 (when direct recruits of 1974 were
eligible for confirmation), eleven substantive vacancies were available on the
basis of the permanent strength of the cadre;
(ii)
Out of one hundred and thirty- three temporary posts available during that
period, eighty-nine posts were assigned to promotes. The direct recruitment
vacancies carried forward from the earlier period. The recruits of the 1964
batch were assigned ranks taking into account the direct recruitment vacancies
carried forward for the previous period." On a representation by the 1974
batch of direct recruits for refixation of inter se seniority in the Gradation
List taking into account only the permanent posts in the cadre and by taking
into account the carried forward vacancies, the State Government made an order
on 22.5. 1980, to the effect that the 1974 batch of direct recruits should be
shown immediately below serial number 64 and above serial number 65 in the
continuation Gradation List published on 2.2. 1977.
Certain
promotes being aggrieved by this Governmental direction approached the High
Court under Article 226 for relief claiming protection of their seniority. The
High Court classified their contentions into the following five:
(i)
The only basis for determination of inter se seniority of officers in a
cadre--whether by promotion or direct recruitment-should be the date of entry
into the cadre and the quota rule is 891 not available to be used for pushing
up or down officers of the cadre;
(ii)
Even if there be any 'carry forward' it should not extend beyond three years;
(iii)
Quota rule should be applied taking into account both substantive as well as
temporary vacancies in the cadre;
(iv)
The quota rule did no longer operate in regard to the junior scale officers
when the 1959 rules became operative; at any rate it was clearly so when the
1966 Rules came into force, and (v) The impugned Government order of 1980 was
invalid and liable to be quashed on several grounds, one of them being that it
was made without providing an opportunity to the promo- tees who were adversely
affected by it.
The
High Court analysed the judgment of this Court in Badami's case and also
referred to, and relied upon, the observations in Col.
Iyer's
case and with reference to the issues catalogued above came to the conclusion
as stated below in its own words:
(i)
"If promotions have taken place in excess of the quota for promotion,
pushing down the promotees promoted in excess of their quota or if direct
recruitment was done in excess of the quota for direct recruitment, pushing
down direct recruits appointed in excess of their quota in a necessary
concomitant of the quota rule. Carrying forward of direct recruitment vacancies
or promotional vacancies to the next recruitment period is merely the
consequence of such pushing down. (What was perhaps in- tended to be said was
that pushing down was the direct outcome of the mandate to carry forward) we
are unable to accept the contention of learned counsel for the promote petitioners
that there should be no such pushing down or such carry forward." (ii)
"In the light of the above ruling of the Supreme Court, it must be held
that carry forward of direct recruitment vacancies cannot extend beyond three
years. However, this ruling of the Supreme Court (In A.S. Iyer's case) does not
affect the finality and binding character of the earlier judgment of the
Supreme Court in Badami's case which specifically dealt with the Gradation List
of Junior Scale officers as on 1.1.
1972,
and gave direction as to how a fresh Gradation List should be prepared. Those
directions are bound to be obeyed while pre- paring such Gradation List of
officers who entered that cadre upto 1.1.1972 without any limitation as to the period
upto which promotional or direct recruitment vacancies should be carried
forward to the next recruitment period. But such carry forward cannot exceed
three years after 1.1.1972." (iii) "The above ruling of the Supreme
Court (Badami's case) is binding on all courts under Article 141 of the
Constitution. It is not open to us to speculate what would have been the
conclusion of the Supreme Court if it had known the correct factual position
that the cadre of Junior Scale officers consisted both of permanent and
temporary posts. That the promotee-petitioners in the present writ petitions
were not parties to Badami's case, in no way detracts from the binding
character of the law declared by the Supreme Court." (iv) "Hence, we
reject the contention that 1959 Rules abrogated the quota rule in regard to
recruitment to the cadre of Junior Scale officers ...... We, therefore, reject
the contentions of learned counsel for promotee- petitioners that after the
1966 Rules came into force, the quota rule ceased to apply to the recruitment
to the cadre of Junior Scale officers and that thereafter the date of entry
into the cadre, whether by direct recruitment or by promotion, became the only
basis for determining the seniority in that cadre." (v) "The High Court
examined the individual cases of both the groups and finally directed dismissal
of Kadali's (or promotee) writ application as also of the direct recruits of
1976 and 1977. It further quashed the Government order dated 22.5. 1980 by
which certain modifications were made in the Gradation List of 1976 and called
upon the State Government to make appropriate alterations in the Gradation List
of 10.8. 1976 and the continuation list of 2.2. 1977 on the basis that the
carry forward rule should operate for a maximum period of three years
subsequent to 1.1.
1972."
We have before us a batch of appeals by special leave and two writ petitions
under Article 32. Both the writ petitions are by direct recruits; Civil Appeal
Nos. 2906 and 2910 and 2911 of 1984 are by 893 promotees while Civil Appeal
Nos. 2902 to 2905 to 2907 to 2909 of 1984 are by direct recruits. The promotees
challenge the propriety of the direction of the High Court to modify the
Gradation List by applying the quota rule while the direct recruits seek to
have full application of the quota rule instead of the limitation of three
years and have asked for consequential benefits.
This
group of cases has been heard at great length and learned counsel for the
parties have produced a lot of papers. On looking into the matter objectively
in the back- drop of Badami's decision we are of the view that if the following
aspects are answered all that arose for judicial determination would be
appropriately met. Those aspects are:
(i)
What is the effect of the quota rule in the matter of fixation of inter se
seniority in the Gradation List so far as recruits from different sources are
concerned? (ii) Though admittedly in 1957 under the relevant rule, a quota
existed, was that basis altered or given up during the relevant period? (iii)
What is the effect of this Court's judgment in Badami's case? Was the High
Court correct in observing that this Court would not have come to the
conclusion that quota was confined to substantive vacancies only if the true
state of facts was known? (iv) What is the effect of the observation in Iyer's
case and does it supersede the rule in Badami's case? (v) Does the situation
highlighted in this case require any other direction? It is a well-settled
position in law that where recruitment is from two sources to a service, a
quota rule can be applied fixing the limits of recruitment from the two
sources. (H.C. Sharma v. Municipal Corporation of Delhi & Ors., [1983] 3
SCR 372.
FIRST
ASPECT In S.G. Jaisinghani v. Union of India & Ors., [1987] 2 SCR 703 a Constitution
Bench of this Court observed:- "The Solicitor-General on behalf of
respondents 1, 2 894 and 3 submitted that the quota rule was merely an
administrative direction to determine recruitment from two different sources in
the proportion stated in the rule and a breach of that quota rule was not a
justiciable issue.
The
Solicitor-General said that there was, however, substantial compliance with the
quota rule ............ We are unable to accept the argument of the
Solicitor-General that the quota rule was not legally binding on the
Government. It is not disputed that Rule 4 of the Income Tax Officers (Class I,
Grade II) Service Recruitment Rules is a statutory rule and there is a
statutory duty cast on the Government under this rule to determine the method
or methods to be employed for the purpose of filling the vacancies and the
number of candidates to be recruited by each method. In the letter of the
Government of India dated October 1951 there is no specific reference to rule
4, but the quota fixed in their letter must be deemed to have been fixed by the
Government of India in exercise of the statutory power given under rule 4, it
is not now open to the Government of India to say that it is not incumbent upon
it to follow the quota for each year and it is open to it to alter the quota on
account of the particular situation. We are of opinion that having fixed the
quota in exercise of their power under rule 4 between the two sources of
recruitment, there is no discretion left with the Government of India to alter
that quota according to the exigencies of the situation or to deviate from the
quota, in any particular year, act its own will and pleasure. As we have
already indicated, the quota rule is linked up with the seniority rule and
unless the quota rule is strictly observed in practice, it will be difficult to
hold that the seniority rule i.e., rule 1(f)(iii) and (iv), is not unreasonable
and does not offend Article 16 of the Constitution." In Badami's case
(supra) this aspect was examined by the Court. The learned Chief Justice spoke
for the three-Judge Bench thus:- "In working out the quota rule, these
principles are generally followed.
First,
where rules prescribe quota between direct recruits and promotees, confirmation
or substantive appointment can only be in respect of clear vacancies in the
permanent strength of the cadre. Second, confirmed persons are senior to those
who are officiating.
895
Third, as between persons appointed in officiating capacity, seniority is to be
counted on the length of continuous service. Fourth, direct recruitment is
possible only by competitive examination which is the prescribed procedure
under the rules. In promotional vacancies, the promotion is either by selection
or on the principle of seniority cummer it. A promotion could be made in
respect of a temporary post or for a specified period but a direct recruitment
has generally to be made only in respect of clear permanent vacancy either
existing or anticipated to arise at or about period of probation is expected to
be completed. Fifth, if promotions are made to vacancies in excess of the
promotional quota, the promotions may not be totally illegal but would be irregular.
The promotes cannot claim any right to hold the promotional posts unless the
vacancies fall within their quota. If the promotes occupy any vacancies which
are within the quota of direct recruits, when direct recruitment takes place,
the direct recruits will occupy the vacancies within their quota. Promotes who
were occupying the vacancies within the quota of direct recruits will either be
reverted or they will be absorbed in the vacancies within their quota in the
facts and circumstances of a case.
The
important principle is that as long as the quota rule remains neither promotes
can be allotted to any of the substantive vacancies of the quota of direct
recruits nor recruits can be allotted to promotional vacancies. The result is
that direct recruitment vacancies between 11th September, 1959 and 26th
October, 1964 cannot be occupied by any promotes. The fact that direct recruits
were confirmed on 28th October, 1964 will not rob the direct recruits of their
quota which remained unfilled from 2nd December, 1957 ............ In S.C.
Jaisinghani v. Union of India (supra) it was said that when the quota was fixed
for the two sources of recruitments, the quota could not be altered according
to exigencies of the situation. It was held there that the promotes who had
been promoted in excess of the prescribed quota should be held to have been
illegally promoted. In Bishan Sarup's case [1978] SCR Suppl.
491
it was held that when it was ascertained that not more than 1/3rd of the
vacancies were to go to the promotes and the rest to the direct recruits the
ratio was not mere depend- ant on whether any direct recruit was appointed in
896 any particular year or not. The promotes were entitled to 1/3rd of the
vacancies in any particular year, whether or not there was direct recruitment
by competitive examination in that year.
Two
principles are established in the decision referred to. One is that quotas
which are fixed are unalterable. according to exigencies of situation. Quotas
which are fixed can only be altered by fresh determination of quotas under the
relevant rules. The other is that on the ground one group cannot claim the
quota fixed for the other group either on the ground that the quotas are not
filled up or on the ground that because there has been a number in excess of
quota the same should be absorbed depriving the other group of quota.
In
Bachan Singh & Anr. v. Union of India & Ors., [1972] 3 SCR 390 the two
appellants were promoted in the year 1958 and 1959.
The
respondents were appointed by direct recruitment in 1962, 1963 and 1964. The
respondents were confirmed in their posts before the appellants. The appellants
contended that the respondents who were directly appointed after the appellants
had been promoted were not to be confirmed in permanent posts before the
appellants. It was held that the direct recruits were confirmed against
permanent vacancies within their quota. The earlier confirmation of direct
recruits though appointed later was upheld on the ground that they fell within
their quota of permanent vacancies.
Subraman's
case [1975] 2 SCR 979 on which the appellants relied also held that each quota
would have to be worked independently on its own force. In that case the
Assistant Executive Engineers who were initially entitled to 3/4th and
subsequently to 2/3rd of the vacancies while Assistant Engineers who were
entitled initially to 1/4th and subsequently to 1/3rd of such vacancies were
held to be entitled to their respective quotas independent of the fact that
whether any person from one class or the other was promoted or not. It was
illustrated by saying that if there were three vacancies in a year two would go
to the Assistant Executive Engineers and one would go to the Assistant
Engineers and even if there were not eligible 897 Assistant Executive Engineers
who could be promoted to fill in two vacancies belonging to their quota, one
vacancy is to be filled up by promotion of an Assistant Engineer if he was
eligible. Similarly, if two vacancies belonging to the quota of Assistant
Executive Engineers are to be filled by Assistant Engineers for want of
availability of eligible Assistant Executive Engineers, the appointment of Assistant
Executive Engineers have to be pushed down to later years when their
appointment could be regularised as a result of absorption in their lawful
quota for those years." Badami's case referred to several authorities of
the Court and clearly drew out the judicial consensus on the point in issue by
concluding that the quota rule had to be strictly enforced and it was not open
to the authorities to meddle with it on the ground of administrative
exigencies.
The
scheme in force relating to the services for fixing inter se seniority takes
into account the filling-up of the vacancies in the service from the two
sources on the basis of the quota and, therefore, fixation of inter se
seniority in the Gradation List has to be worked out on the basis of quota.
SECOND
ASPECT There was no dispute either before the High Court or before us that in
the 1957 Rules there existed a quota for filling-up vacancies in the Class I
Junior Scale posts. The High Court found that the quota continued throughout
during the relevant period. Before us Mr. Nariman supported that finding while
Mr. Kacker maintained that the quota had in later years been given up. Rule 3
of Mysore Recruitment of Gazetted Probationers Rules, 1959 made the following
provisions:
"(1)
The provisions of these rules shall be applicable in respect of direct
recruitment to the cadres in State Civil Services Class I and Class II
specified in column 3 of the Schedule to these rules relating to the Services
specified in the corresponding entries of Column 2 of the said Schedule.
(2)
These rules shall have effect not with standing anything contrary contained (i)
in the Cadre and Recruitment Rules for the time being in force applicable to
the Cadres in the 898 State Civil Services referred to in sub-rule (i) and (ii)
in the Mysore State Civil Service (General Recruitment) Rules, 1957.
(3)
During the period of five years from the date of commencement of these rules,
as nearly as may be two-thirds of the number of vacancies arising in the cadres
in the State Civil Services referred in to in sub-rule (i) shall be filled by
appointment of candidates herein- after in these rules referred to as probationers
selected in accordance with the provisions of these rules and the actual number
of vacancies to be so filled shall be determined by the Government."
Admittedly these rules related only to direct recruitment and as it appears, in
sub-rule (3) remained in force for five years (said to have been extended for
one more year);
with
the lapse of a total period of six years from the date when these rules came
into force, they cease to have effect.
In
1966 rules were made under the proviso to Article 309 known as the Karnataka
Government Gazetted Probationers Posts (Appointment by Competitive Examination)
Rules, 1966 and sub-rule (3) of Rule 3 thereof provided inter alia:
"That
notwithstanding anything contrary in the rules of recruitment to the Karnataka
Administrative Service the number of vacancies as determined by the Government
in that service should be filled by direct recruitment after holding a
competitive examination by the Commission." On the 11th of August, 1977,
the Karnataka Administrative Service (Recruitment) (Amendment) Rules, 1977 came
into force. Rule 2 thereof provided:
"Amendment
to Schedule:-In the Schedule to the Karnataka Administrative Service
(Recruitment) Rules, 1957 for the entries at the Item (b) the following entries
shall be subsituted, namely:-
------------------------------------------------------- 1 2 3
-------------------------------------------------------- (b)All Class I
(i)50%of vacancies to be For promotion; Class II (Junior Scale) filled by
promotion Officers must have 899 Posts. from Class II Officers; worked for at
least a and period of four years (ii) 50% by Direct including the period of
Recruitment in accorofficiation or probation dance with the Karnataka
Recruitment of Gazetted Probationers (Appointment etc.) Rules, 1966.
Unless
the 1957 Rules remained in force till 1977, there would have been really no
necessity to refer to them for the purpose of amendment; Badami's case did
proceed on the footing that the quota system in the Recruitment Rules continued
till 1971-72. It is not Mr. Kacker's case that anything happened after 1972
which brought about dissolution of the quota. We reject the contention of Mr.
Kacker that the quota system had been abandoned and confirm the finding of the
High Court in that regard. It is, however, a fact that the ratio has been
changed from time to time.
THIRD
ASPECT As already pointed out, Badami's case was concerned with these very
rules and a similar situation though for a different period. It is a decision
of a three-Judge Bench and we proceed on the footing that it is binding on us.
The High Court has pointed out in the leading judgment in Kadali's case:-
"There are numerous Government orders sanctioning, from time to time,
temporary posts of Assistant Commissioner which are the same as the posts of
Junior Scale Officers and extending the tenure of those temporary posts from
time to time ..........................
Though
the Karnataka Administrative Service Cadre Rules mention of only permanent
posts and not temporary posts in the cadre of Junior Scale Officers, the
material produced before us clearly establishes that the cadre of Junior Scale
Officers consisted of a consider- able number of temporary posts at all
material times. In para 6 of the statement of objections filed on behalf of the
State in these petitions, the State has admitted thus:- "The cadre
strength of KAS Class I Junior Scale Officers had itself undergone revision and
figures 900 showed that 152 permanent posts and 133 temporary posts were
available as is clear from the notification No. GAD 590 SMC 74 dated 3.3.
1976."
However learned counsel for direct recruits on the following observations of
the Supreme Court in Badami's case at page 1564 of the report:- "In E.P.
Royappa v. State of Tamil Nadu, [1974] 2 SCR 348 this Court said on the con-
struction of Rule 2 of the relevant Cadre Rules in that case that the State
Government might add for a period to the cadre one or more posts. But, the
posts so added could not become cadre posts. The temporary posts which are
created due to exigencies of the service are posts which are outside the
Cadre." From the above observations, it would appear that the Supreme
Court took the view that temporary posts which were created due to exigencies
of service, were posts which were outside the cadre. In other words, the
Supreme Court seems to have thought that temporary posts added to the cadre
were ex-cadre posts.
The
attention of the Supreme Court does not appear to have been drawn to Note 2 to
R 49 of the KCSR which classifies temporary posts into two categories, namely,
posts created to perform the ordinary work for which permanent posts already
exist in the cadre, and isolated posts created for the performance of special
task unconnected with the ordinary work which a service is called upon to
perform." The conclusion indicated in the decision of the learned Chief
Justice of this Court in Badami's case had been sup- ported by reasons. As it
would appear at page 8 19 of the Reports, this aspect was raised as the first
of the six contentions formulated for consideration of the Court.
Keeping
the facts of the case in the background, three reasons were indicated in the
judgment for the conclusion that quota covered permanent posts. Reference was
made to certain decisions of this Court as also. to Rule 9 of the Probation
Rules of 1959. It was held that Rule 9 establishes the exclusion of temporary
posts from the cadre. Royappa's case (supra) was relied upon for the same
conclusion by saying that posts temporarily added to the cadre by exercise of
power under a permissive rule would not become cadre posts and temporary 901
posts created due to exigencies of the service should be treated as posts
outside the cadre. The High Court in the judgment in Kadali's case relied upon
Note 2 of Rule 49 of the KCSR and thought that this Court was not properly in-
formed of the factual situation when in Badami's case it said that temporary
posts were not to be taken into consideration for the purpose of working out
the quota. The note to Rule 49 has indeed no bearing on the point and we are of
the view that there was really no justification for the doubt indicated by the
High Court. Apart from the fact that the conclusion of this Court in Badami's
case on this score is a binding authority on us, from an examination of the
matter we also reiterate that conclusion to be correct.
FOURTH
ASPECT The High Court in these cases has taken the view that the quota could be
carried forward for a maximum period of three years and not beyond. This has
been done by placing reliance on the Constitution bench judgment of this Court
in the case of Col. A.S. Iyer & Ors. v. V. Balasubramanyam & Ors.,
[1980] 1 SCR 1036. KrishnaIyer, J. speaking for the Court at page 1058 of the
Reports stated:- "The total number of vacancies at the DSS level for each
year shall be divided in the ratio of 2:1 (50% for the Army Corps and 25% for
direct recruits). The 50% reserved for the army corps shall be available to be
filled by those candidates. The 25% seats to be filled by direct recruits shall
be filled only by such recruits. Even if enough direct recruits are not
available they will not be filled by the army nominees but shah be kept vacant
to be carried forward and filled in later years by such direct recruits. A
reason- able period for the carry forward scheme will be three years, not more.
Likewise, military vacancies at the DSS level each year shall be filled only by
such nominees. If enough such hands are not available, a similar procedure of
carry forward will govern. For the SS posts 25% belongs to promotes from Class
II officers. The total number will be worked out by adding all the posts of SS,
Deputy Directors and Directors and Surveyor General and allot- ting 1/4th of it
as the quota for Class II promotes for appointment as SS. Such is the
reasonable interpretation of the rule." The Court in that case had been
called upon to decide the dispute of 902 seniority between the direct recruits
and promotes within the civilian quota in the Survey of India service. Survey
of India (Recruitment) Corps of Engineer Officers, Rules, 1950 came for
consideration of the Court. The opinion expressed by this Court in the
extracted paragraph was with reference to the rules before the Court. The
provisions as indicated in the extracted paragraph were somewhat peculiar.
After the quota was provided, there was a prohibition against filling up of the
vacancies in the respective quotas from other categories even when suitable
candidates were not available from within the reserved sphere. This meant that
the posts were allowed to go vacant even though in public interest the same
should have been filled up on account of the bar in the rule. It is in that
background that this Court indicated that a reasonable period for the
carry-forward scheme would be three years and at the end of the paragraph
indicated that that would be a reasonable interpretation of that rule.
Obviously
nothing of general application was intended to be said and this Court did not
certainly intend to lay down a time limit of general application. The Mysore
State Civil Service (General Recruitment) Rules, 1957 which admittedly applied
to the services in question by Rule 17 provided:
"Notwithstanding
anything contained in these rules or in the rules of recruitment specially made
in respect of any service or post, the appointing authority may-- (a) recruit
by direct recruitment to a post reserved to be filled by promotion when it is
satisfied that the person eligible to be considered for appointment by
promotion is not fit to be also appointed, or (b) fill up by promotion any
vacancy relating to a post which is required to be filled by direct recruitment
when such vacancy is not likely to last for more than one year ................
" In exercised of the powers conferred under this rule the appointments in
excess of the quota limit appear to have been made. It is conceded that every
appointment to the promotional post made in excess of the quota was at the
commencement a temporary one. The 1957 Rules were substituted in 1977 by the
Karnataka Civil Services (General Recruitment) Rules, 1977. As far as relevant
Rule 17 thereof pro- vides:
"Notwithstanding
anything contained in these rules or in 903 the rules of recruitment specially
made in respect of any service or post, the appointing authority may--
(a)...............................................
(b)...............................................
(c)
fill by promotion temporarily on the basis of seniority cum-merit a vacancy
required to be filled by direct recruitment where selection to the post has not
been finally made and there is likelihood of delay in making direct
recruitment. No such promotion shall be made unless a requisition has been sent
to the Commission or to the appropriate recruiting authority for selection of a
suitable candidate. A candidate temporarily promoted under this sub-rule shall
not have any preferential claim for regular promotion and also shall not count
the period of service in the promoted post for seniority; he shall revert to
his original post on the expiry of one year or on the appointment of a direct
recruit whichever is earlier ......................... " The scheme in the
Rules of 1977 clearly indicates that the transgression of the quota rule was a
deviation of a temporary nature and was intended to be balanced in good time.
The
conclusion of Ray, C.J. is fortified by the spirit of Rule 17 of the 1957 Rules
as clarified in clause (c) of that rule in 1977. The presence of such a rule in
the field excludes the application of the ratio of ColIyer's case to the facts
hereof. We do not think the High Court was right in overlooking the binding
judgment of this Court in Badami's case and preferring to apply the
observations of Iyer, J in the latter decision made with reference to a
different set of rules containing a different scheme of implementing quota. The
rule on this aspect of Badami's case was quoted with approval by a two-Judge Bench
of this Court in P.S. Mahal & Ors. v. Union of India, [1984] 3 SCR 847.
A
lot of argument was advanced at the Bar particularly on the side of the
promotees that serious prejudice was being caused to them by enforcing the
quota rule. Reliance was placed on a number of authorities of this Court beginning
with the case of A. Janardhana v. Union of India & Ors., [1983] 2 SCR 165;
G.S. Lamba & Ors. v. Union of India & Ors., [1985] 3 SCR 431; G.P.
Doval & Ors. v. Chief Secretary, Government of U.P. & Ors, [1985] 1
SCR70; O.P. Singla &Anr. etc. v. Union of India & Ors., [1985] 1 SCR
351 and D.S. Nakara & Ors. v. Union of India, [1983] 2 SCR 165.
904
In Lamba's case (supra) the Court found that the promotion was not styled as
temporary or ad hoc or stop-gap; on the other hand, the Court at page 459 of
the judgment in the Reports referred to the case of N.K. Chandan & Ors. v.
State of Gujarat, [1977] 1 SCR 1037 where on the basis of a power of relaxation
the Court had held such promotion to be regular. The Court further held:
"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 Section 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 provide a
valid principle of seniority................" This principle appears to
have been followed in this Court in some cases during the last two years or so.
The exceptional circumstances indicated in Lamba's case for supporting the
departure in the judicial opinion has been over- looked in some of these cases
and the resultant benevolent approach to protect the promotes in their claim
for seniority has been accepted without considering the special circumstances
in which the ratio had been inducted in support of the departure.
In
a precedent-bound judicial system binding authorities have got to be respected
and the procedure for developing the law has to be one of evolution. It is not
necessary for disposal of these matters before us to go into that aspect except
noticing the existence of distortion in the field.
The
rationalisation of the view in a way known to law is perhaps to be attempted
some day in future. In the present batch of cases the law being clear and
particularly the mandate in the rule being that when recruitment takes place
the promote has to make room for the direct recruit, every promote in such a
situation would not be entitled to claim any further benefit than the advantage
of being in a promotional post not due to him but yet filled by him in the
absence of a direct recruit. One aspect which we consider relevant to bear in
mind is that the promoted officer has got the advantage of having been promoted
before it became his due and is not being made to lose his 905 promotional
position. The dispute is confined to one of seniority only. The advantage
received by the promote before his chance opened should be balanced against his
forfeiture of claim to seniority. If the matter is looked at from that angle
there would be no scope for heartburning or at any rate dissatisfaction is
expected to be reduced so far as the promotes are concerned.
Last
Aspect In Karam Pal v. Union of India, [1985] 3 SCR 271 a three-Judge Bench of
this Court to which one of us was a party indicated as follows:- "In a
vast country such as ours, strong and independent bureaucratic set up is
indispens- able. 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 conditional
code that everyone shall perform his duty." This Court further observed,
"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 States and its employees ultimately affect the
efficiency of service and bring about indiscipline, lack of loyalty and an
attitude of indifference.'' We are struck by the innumerable rules that have
been framed within a period of about thirty years to cover the field relating
to constitution, 906 recruitment and provision for other conditions of service.
It
is proper that service rules should be simple making reasonable provision for
necessary aspects. While framing such rules, the relevant provisions of the
Constitution and laws in force have to be kept in view. There should be no
frequent alteration of the service rules through. Exigencies of circumstances
and unforeseen situations will certainly justify alterations. Those will be
indeed rare occasions.
Experience
shows that legal battles are fought in court between government
servants--whether individual pitched against individual or group against group;
this embitters relationship inter se and often results in a switch over of
attention from public duty to personal cause. Frequent litigations against the
State or higher authorities in the hierarchies of administration, wipe out
reverence, loyalty and the sense of discipline and substitute those by anger,
disrespect and rancor. In the process fellow feeling is lost, the sense of
brotherhood vanishes. The net resultant of all is deprivation of the efficiency
of the bureaucratic community to serve the society. The undue growth of service
litigation within these four decades of independence clearly calls for these
observations. As and when, occasion has arisen the Court has sought to draw the
attention of the State as the employer as also the Government servants to this
aspect of the matter. This has been done not with a view to subjecting any
litigant to undue criticism but with the fond hope that it would help the
problem to receive adequate attention. We are surprised that the words spelt
out in the different judgments have fallen on deaf ears and created no stir.
Thereby the most powerful wing in the administrative set up is gradually moving
away from its designated path. We have come across cases where officers have
been in court litigating over service disputes for about twenty-five to thirty
years of their career which would mean almost three-fourths of their service
period.
What
would be the contribution of such officers to the public service can well be
imagined. Very often a public officer is forced into litigation as he gets no
justice in the hands of the superior. There are also several instances where an
officer drags the employer into litigation without a cause of action. These are
matters which must be taken into account without further loss of time and with
fortitude so that the most effective wing of the administration does not
further lose its serviceability.
A
public servant--whatever his status be--is in the position of a trustee. Social
power vests in him for the purpose of rendering service to the community. Every
public servant has to be cognizant to that obligation. Once the level of that
consciousness grows up there is 907 bound to be a corresponding fail in the
attitude to litigate over small issues. What this Court said in the case of Dr.
T.G.
Siddapparadhya & Ors., [1971] 1 SCR 568 has to be borne in mind. These were
the words then said:- "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 him- self aspired after".
What
applies to a teacher may perhaps well apply to everyone in positions of social
trust. It is for the privileged public servant as also his employer to share
this philosophy.
The
net result of the discussion above requires that rule in Badami's case has to
be given full effect. The appeals and writ petitions of the direct recruits
have to succeed and those by the promotes have to fail. We hope and trust that
the State of Karnataka will not demote anyone who has been in a promotional
post for several years to the Class II service as a consequence of this
decision but the Gradation List has got to be adjusted to fit into the
principles indicated in the judgment. No justification was shown to us as to
why the State of Karnataka failed to comply with its obligation of making
recruitments in terms of the quota.
Once
the State frames rules they are binding on the State and like individuals the
State has got to regulate its conduct in accordance with the rules--nay, the
State has to observe it all the more. We hope and trust that the State of
Karnataka in the years ahead will comply with the quota rule with regularity so
that a litigation of this type may not arise again. If any party has to be
directed for payment of costs in this bunch of litigation it must be the State.
We, however, do not want to saddle the State with costs for two
reasons-firstly, we do not want the employees to have a feeling that in the
fight their employer has been vanquished and secondly we entertain a fond hope
that there will be no reoccurrence.
In
course of arguments we had suggested to learned counsel for the parties to
furnish recast Gradation List on the basis of claims advanced before us---(1)
showing how it would be when full claim of the promotes is granted and (2) how
different it would look when the 908 total claim of the direct recruits is
allowed. Such charts have been prepared and furnished and we find that the
process of pushing up and down would be inevitable but would be within
reasonable limits and no irreparable prejudice was apparent.
The
appeals and writ petitions of the direct recruits are allowed, and the appeals
by the promotes are dismissed.
There
shall be no order for costs throughout.
S.L.
Appeals and Petitions disposed of.
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