M.S. Patil,
Asstt. Conservator of Forests, Solarpur Vs. State of Maharashtra [1996] INSC 1308 (23 October 1996)
K. Ramaswamy,
G.B. Pattanaik
ACT:
HEAD NOTE:
O R D
E R
By
order dated September
16, 1996 passed by our
learned brethren Justice N.P. Singh and Justice S.B. Majmudar, placed under
these matters before this Bench, since the controversy had already been decided
by this Court in a matter in which one of us, K. Ramaswamy, J. was a member,
viz., State of Maharastra & Anr. vs. Sanjay thakre & Ors.[1995 Supp.
(2) SCC 407]. These cases arise from the common order of the Administrative
Tribunal, Bombay in Application No. 83/96 etc.
dismissing the above judgment.
Mr.
M.S.L. Patil, party appearing-in-person has raised five contentions, namely,
that the combined seniority as per the rules was to be maintained from the date
of the regular appointment or promotion. As per the rules, the petitioner came
to be appointed prior to the appointment of the direct recruits. Therefore, the
entire length of service rendered by him as an Assistant Conservator of Forests
requires to be tagged for maintaining his seniority.
If so
considered, he would be senior to the direct recruits.
Therefore,
they cannot scale march over the promotees. It is also contended that the
direct recruits unfilled quota cannot be carried forward. He places reliance on
the judgment of this court in Indra Sawhney vs. Union of India [1992 Supp. (3)
217] known as Mandal's case. They were no recruited according to rules. He also
contended that he was not made a party to the earlier proceedings which
culminated in the aforesaid judgment. Therefore, the decision passed by this
Court is violative of the principles of natural justice. He also contended that
the third respondent in this case is a direct recruit and has concealed several
material facts which led to the open judgment by this Court. Shri Raju Ramachandran,
learned senior counsel appearing for some of the promotees, contended that in
the earlier case, this Court in paragraph 9 of the judgment has specifically
stated the premises that specific material has not been placed on record of the
appointment of the promotees, viz., whether their promotions were fortuitous or
not. The quota rules was broken down between the direct recruits and the promotees.
Even under Rules, 1982, the second proviso thereto gives a power to the
Government to certify that the direct recruitment could not be made. In view of
the stand taken by the Government in the counter- affidavit filed in the
Tribunal that the so-called rule of quota has been broken down, it would amount
to certification that it did not make regular recruitment; as a result, promotees
gain seniority which has to be counted from the date of the regular promotion.
Thereby, they would be senior to the direct recruits.
In
view of these contentions, the question that arises is: whether the judgment of
this Court has been vitiated by any error of law warranting reconsideration at
the behest of some of the persons who are not parties to the earlier proceedings
? It is undoubted that they were not parties to their earlier petition but this
Court has laid down the general principle of law, and, therefore, whether or
not they are parties to the earlier proceedings, the general principle of law
stands applicable to every person irrespective of the fact whether he is party
to the earlier order or not. It is not in dispute that there is a ratio
prescribed for the direct recruits and the promotees, namely 1:1. In other
words, for every 100 vacancies the promotees are entitled only to 50 vacancies.
It is not in dispute that these promotees have been promoted in excess of the
quota. Under those circumstances, it is settled law that the promotees who are
appointed in excess of the quota cannot get the be fitted into seniority according
to the rules. As to what is the date on which the promotees or the direct
recruits came to be appointed into the respective quota is a matter of record
and the seniority is required to be determined according to the law laid down
by this Court. In several judgments of this Court, it is now firmly settled
that mere by because of the fact that State Government could not make direct
recruitment due to its inaction, it cannot be said that the rule of quota has
been broken down. Therefore, as and when the direct recruitment has been made,
the direct recruits are entitled to placement of their seniority into the
vacancies reserved for them as per the ratio and the seniority determined as
per the rules within the respective quota. Similarly, when the promotees came
to be promoted in accordance with the rules in excess of their quota, this
Court stated in K.C. Joshi & Ors. vs. Union of India & Ors. [AIR 1991
SC 284] though a Bench of three Hon'ble Judges, that the promotees in excess of
the quota cannot be given seniority from the respective dates of their
promotions. They have to be considered only from the respective dates on which
their respective quota is available. The same decision was followed and
reiterated in A.N. Sehgal vs. Raje Ram [1992 Supp. (1) SCC 304]. Under these
circumstances, we do not think that the judgment of this Court is vitiated by
any error of law for reconsideration. Even Rule 4, second proviso has no
application to the facts in this case. Rule 4 contemplates the seniority and
second proviso postulates that when the recruitment could not be made, they
have to certify the ground on which it could not be made and thereafter the
seniority has to be determined. In view of the law now laid down, the
certification of the non-making of direct recruitment according to rules, bears
no relevance. The question of carry forward in this case, as laid down in Mandal's
case, has no application for the reason that the recruitment in proportion is
one the methods of recruitment and is required to be made. The balance posts
are required to be recruited by subsequent publication and the promotees have
no right to get into the post reserved for the direct recruits. Mandal's case
concerns carry forward posts reserved under Article 16(4) for Scheduled Castes,
Scheduled Tribes and Other Backward Classes which has nothing to do in this
case. Though some of the grounds will be available to argue the case on merits,
that is no ground to reopen the settled law laid by this Court in earlier
decision.
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