Union of India & Anr Vs. G.K. Vaidyanathan
& Ors [1995] INSC 625 (2 November 1995)
Jeevan
Reddy, B.P. (J) Jeevan Reddy, B.P. (J) Ramaswamy, K. Hansaria B.L. (J) B.P. Jeevan
Reddy. J.
CITATION:
1996 AIR 688 1995 SCC Supl. (4) 271 JT 1995 (7) 650 1995 SCALE (6)199
ACT:
HEAD NOTE:
Leave
granted in Special Leave Petition (C) No.3930 of 1988.
A
common question arises in these two appeals. Civil Appeal No.4340 of 1995 is
preferred by the Union of India against the decision of the Central
Administrative Tribunal (Madras Bench) in Original Application No. 731 of 1981
whereas Civil Appeal arising from Special Leave Petition (C) No.3930 of 1988 is
preferred against an order of the Central Administrative Tribunal (Bangalore
Bench) in Original Application No.380 of 1987 as well as the order dismissing a
review application filed by the appellants. The dispute is between direct
recruits and promotees and it relates to determination of the seniority as
between them in the post of Chargeman Grade-1 in the Ministry of Defence,
Department of Defence Production.
Recruitment
to the post of Chargeman Grade-1 was both by promotion as well as by direct
recruitment. Until 1979, the ratio between promotees and direct recruits was
2/3 : 1/3. From March
3, 1979, it was
changed to 80 : 20 and with effect from June 26, 1985 the channel of direct recruitment
has been closed altogether; the only method of recruitment is promotion from
the post of Chargeman Grade-11. When the recruitment was done through both the
above methods, a rule of rotation was also in vogue. Inasmuch as we are
concerned in these appeals only with the period during which the ratio of 80 :
20 was in vogue, it is sufficient to notice that the rotation rule in vogue
provided that out of every five vacancies, the first four vacancies shall be
filled by promotees and the fifth vacancy by direct recruitment.
In
Civil Appeal No.4340 of 1995, the facts are the following: the first respondent
herein (the petitioner before the Madras Tribunal) was promoted to the post of Chargeman
Grade-1 on January 5,
1981 on a regular
basis. The Respondent Nos.3 to 15 in the Original Application (who are
Respondent Nos.2 to 13 in this appeal - one of them does not appear to have
been impleaded as a respondent in this appeal) were appointed as direct
recruits to the said post in December 1981. In the seniority list issued in the
year 1982, while the third respondent in the Original Application was shown at
SI.No.37, the petitioner in the Original Application (first respondent in this
appeal) was shown at Sl.No.141. The other respondents (direct recruits) were
also shown as seniors to the first respondent. For further promotion to the
post of Assistant Foreman, they were considered on the basis of the aforesaid
seniority, with the result that the direct recruits, who were appointed in
December 1981 came to be promoted to the post of Assistant Foreman earlier than
the first respondent. Thereupon, the first respondent approached the Central
Administrative Tribunal (Madras Bench) by way of Original Application No.731 of
1986 praying for a declaration that the seniority lists issued in the years
1982, 1983 and 1985 in respect of Chargeman Grade-I be declared to be illegal
and invalid and a further direction to promote him (petitioner in the said Original
Application) to the post of Assistant Foreman with effect from July 9, 1984,
the date which the second respondent was promoted to that post. His submission
was that inasmuch as there was a break-down of the quota rule during the
relevant years, the rule of rotation cannot be followed and hence the direct
recruits appointed later cannot be made senior to him purporting to follow the
rule of rotation. He submitted further that the injustice inherent in following
the rule of rotation inspite of bread- down in the quota rule has been recognised
by the Central Government which has issued a new set of principles in Office
Memorandum dated February 7, 1976. If the principle of the said Office
Memorandum is applied to the parties herein, the petitioner in the Original
Application (first respondent in this appeal) is entitled to be treated as
senior to Respondent Nos.3 to 15 (direct recruits) in the Original The learned
counsel appearing for Respondent Nos.3 to 15 in the Original Application
(direct recruits) conceded before the Tribunal that the quota rule has broken
down warranting re-fixation of seniority. The stand taken by the learned
counsel for the direct recruits may better be set out in the words of the
Tribunal itself:
"The
learned counsel for the respondents conceded that it had broken down,
warranting a refixation of seniority. He stated that since the Direct Recruits
were fitted in slots earmarked for them even though they were appointed very
much later than the promotees and this led to their becoming senior to the promotees,
he would concede the first prayer of the applicant in regard to his seniority.
In view of that we direct the Ist and 2nd respondents to refix the applicant's
seniority as Chargeman Grade I in the light of the guidelines given by the
Department of Personnel & Training in their O.M. dated 7-2-1986.
Even
though that O.M. would have effect only prospectively, the principle laid down
therein is a principle of law which has to be applied in cases like this where
seniority is challenged on the ground that constitutional provisions have been
violated because of the application of rota rule when quota rule has already
broken." In view of the said concession - (the judgment of the Tribunal
does not show whether any counter was filed by the Union of India, and if so,
what was its purport) - the Tribunal directed that the petitioner before it is
entitled to be treated as senior to the respondents- direct recruits therein
and that he is also "entitled to be considered for promotion as Assistant
Foreman when the third respondent was considered for that post". The Union
of India has come up in appeal against the said decision.
Identical
dispute between the same parties was also raised before the Bangalore Tribunal
with this difference.
The
Original Application before the Bangalore Tribunal was filed by an Association
of the promotees and the promotees (Petitioner No.1 and Petitioner Nos.2 to 39
respectively) claiming seniority over the respondents-direct recruits. The
direct recruits were impleaded as Respondent Nos.4 to 15 who included
Respondent Nos.3 to 15 before the Madras Tribunal.
The
basis of the claim was identical, viz., the break-down of the quota rule. The
direct recruits remained ex-parte but Union of India contested the promotees' case.
The Bangalore Tribunal looked into the relevant records and found as follows:
"On
an examination of the records, we notice that there was a deviation or
departure in adhering to the quotas prescribed for direct recruitment and
promotion in the calender years from 1978 to 1981 reckoning each year as one
unit. In all these years, the posts in the cadre of CGI were filled in from two
sources, viz., direct recruitment and promotions. Strange enough, during these
years, promotions to the cadre were in excess of direct recruitment. This then
is the factual position revealed from the records." The Tribunal
accordingly found that it was not a case of bread-down of quota rule but a case
of mere departure or deviation in certain years. It rejected the promotees'
case that there has been a break-down of the quota rule. The claim of the promotees
for seniority was accordingly rejected. The Tribunal also rejected the promotees'
challenge to the Office Memorandum dated February 7, 1986 insofar as it stated that the principle
evolved therein shall have only prospective operation and that seniority
already determined in accordance with the existing principles on the date of
issue of the said Office Memorandum will not be re-opened. The decision of the
Bangalore Tribunal was rendered on October 20, 1987.
When
the petitioners before the Bangalore Bench came to know of the decision of the
Madras Tribunal (which was rendered on October 30, 1987), they applied to the
Bangalore Tribunal for reviewing its judgment on the basis of the decision of
the Madras Tribunal. It was rejected. Both the aforesaid orders are challenged
in the appeal arising from Special Leave Petition (C) No.3930 of 1988.
The
learned counsel for the appellant-Union of India in Civil Appeal No.4340 of 1995 submits that in the interest of
uniformity, this Court should decide on merits whether the quota rule had
indeed broken down during the period 1978 to 1981 de hors the concession made
on behalf of the direct recruits before the Madras Tribunal. He points out that
the decision of the Madras Tribunal is based on a concession and that where no
such concession was made, i.e., before the Bangalore Tribunal, it has been held
on merits that the said rule cannot be said to have broken down. On merits, the
learned counsel supported the reasoning and the finding arrived at by the
Bangalore Tribunal.
Sri Krishnamani,
learned counsel appearing for the promotees, on the other hand, submitted that
the quota rule must be held to have broken down in the facts and circumstances
of these cases and that the concession to that effect was rightly made by the
direct recruits before the Madras Tribunal. Once the quota rule is held to have
broken down, the learned counsel contended, the rule of rotation cannot be
followed, in which event the principles enunciated by the Constitution Bench of
this Court in Direct Recruit Class-II Engineering Officers Association v. State
of Maharashtra (1990 (2) S.C.C. 715) should be followed. The learned counsel
further submitted that following the rule of rotation despite the bread-down of
the quota rule results in grave discrimination and arbitrariness and that the
said fact was recognised by the Government itself which has accordingly issued
a fresh set of instructions in its Office Memorandum dated February 7, 1986. Counsel submitted that the
principles contained in the said Office Memorandum, being equitable and just,
should be applied even for the period anterior to February 7, 1986 in the interest of justice, equity and fairplay. He
submitted that the Central Government was not justified in saying that the
principles in the said Office Memorandum shall only have prospective operation
which really means that the injustice perpetrated earlier to the said Office
Memorandum was knowingly affirmed.
We are
of the opinion that the learned Additional Solicitor General is right in his
submission that the decision of the Madras Tribunal is based upon a concession
and cannot, therefore, be treated as a decision on merits.
The
said concession made by direct recruits cannot and does not bind the Union of
India, which is equally an affected party in the matter. No such concession was
made by any of the respondents before the Bangalore Bench. As stated above, the
direct recruits impleaded as respondents before Madras Tribunal were also impleaded
as respondents before the Bangalore Tribunal. Moreover, the said concession is
found to be opposed to the record, as found by the Bangalore Tribunal, which
has recorded on a perusal of relevant records, that even during the years 1978
to 1981 - the period during which the promotees say, there was a break- down in
the quota rule - both direct recruitments and promotions were being made though
it may be that promotions to the cadre were made in excess of the quota. The
correctness of the facts recorded in para-28 of the decision of the Bangalore
Tribunal is not disputed or questioned before us. One this is so, the very
theory of bread-down of the quota rule falls to the ground. In such a
situation, it is not necessary either to deal with the decisions cited by the
parties on the question when the quota rule can be said to have broken down or
with the question whether the principle contained in Office Memorandum dated
February 77, 1986 can be given retrospective effect. The factual situation
concludes the issue against the promotees.
For
the above reasons, Civil Appeal No.4340 of 1995 is allowed and the Civil Appeal
No. 9831 of 1995 arising from Special Leave Petition (C) No.3930 of 1988 is
dismissed. The promotees' challenge to the seniority lists prepared in the
years 1982, 1983 and 1985 fails as also their challenge to the promotion of
direct recruits to the post of Assistant Foreman earlier than the petitioners
in Original Application No.380 of 1987 on the file of Bangalore Tribunal. There
shall be no order as to costs.
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