AFHQ/ISOS
SOS (Dp) Association & Ors Vs. Union
of India & Ors [2008] Insc 202 (19 February 2008)
H.
K. Sema & Altamas Kabir & Lokeshwar Singh Panta
CIVIL
APPEAL NO. 1384 OF 2008 [Arising out of S. L. P. (C) No.4545 of 2007] WITH
CIVIL APPEAL NO. 1385 OF 2008 [Arising out of S. L. P. (C) No.5853 of 2007]
AFHQ Officers' Association & Ors. .... Appellants Versus Union of India & Ors. ..... Respondents Lokeshwar
Singh Panta, J.
1.
Leave granted.
2. The
usual question as regards determination of inter se seniority between Direct
Recruits (DRs) and Departmental Promotees (DPs) once again falls for
consideration in these two appeals by special leave, therefore, for the sake of
convenience, they are being heard and decided by this common judgment.
3.
These appeals are directed against the judgment and order of the High Court of
Delhi dated 14th November, 2006 in C.W.P. No. 4058/2002; C.W.P. No. 4458/2002;
C.W.P. No. 5396/2002 and C.W.P. No. 62/2003 and order dated 15th January, 2007
in C.W.P. No. 18073/2005, whereby and whereunder the order dated 1st April,
2002 in O.A. No. 1356/1997 (Smt.Ammini Rajan & Ors. v. Union of India &
Ors.) of the Central Administrative Tribunal, Principal Bench, New Delhi, is set aside.
4. The
Central Administrative Tribunal (hereinafter referred to as "the
Tribunal") allowed the said O.A. filed by Smt. Ammini Rajan & Ors.
challenging the Select List of Assistants for promotion to the grade of
Assistant Civilian Staff Officers (hereinafter referred to as "ACSOs")
and Armed Forces Headquarters(AFHQ) Civil Services for the years 1977, 1978 and
1979 which was circulated vide letter dated 2nd July, 1996; the Select List for
the year 1980 which was circulated vide another letter dated 20.09.1996; the
Select List for the year 1981 circulated vide letter dated 20.11.1996 and also
the Select List of 1982 circulated vide letter dated 14.03.1997.
The
applicants were also aggrieved by the consequential Seniority List of ACSOs of
AFHQ Civil Services prepared by the Departmental Promotion Committee (for short
"the DPC") for the years 1988-89 and 1989-90 respectively for
promotion to further grade of Civilian Staff Officers (CSOs). Based on the
revised Select List in the grade of ACSOs, the claim of the applicants was that
the Select List and the Seniority List for promotion to the grade of CSOs were
drawn in contravention of the directions given by the Tribunal in TA
No.356/1985 (CW 3/78) rendered in Shri M.G. Bansal & Ors. v. Union of India & Ors. on 20th November, 1992 and also in violation of AFHQ Civil Services Rules,
1968.
5. The
Tribunal, on consideration of the entire material on record, disposed of O.A.
No. 1356 of 1997 (Smt. Ammini Rajan's case) with the following directions:-
(i)
Impugned orders Annexure-A-1 and A-2 are quashed. The respondents are directed
to determine the seniority between the direct recruits and promotees regularly
appointed/promoted within their respective quota by counting the length of
continuous officiation in the grade of ACSO from their respective appointment
to the substantive vacancies within their quota in accordance with the Rule
16(7) of the AFHQ Rules and Schedule III of the Rules. In the case of promotees
ACSO, the length of continuous officiation in the grade will be determined from
the date when they are promoted in substantive vacancies in their lawful quota.
In case of direct recruits ACSO, their seniority shall be determined from the
year in which they joined the service. While determining seniority, respondents
are directed to adhere to the DPC year in case of promotee officer and to
retain as 1st October to 30th of September of the following year as provided in
the rules/regulations.
(ii)
Respondents are further directed to prepare single Select List in a year for
the ACSO grade and they cannot report to two separate lists for the purpose of
merely identifying the Note (2) Schedule III vacancies as the rules do not
envisage the same.
(iii)
Respondents are further directed that the vacancies of DR quota may be carried
forward but while determining the seniority the slots of the vacancies left
unfilled by the DR quota shall not be carried forward for the purpose of
determining seniority.
(iv)
It is further directed that after finalizing the seniority list, the department
shall prepare eligibility lists for the purpose of promotion to the next higher
grade.
(v)
These directions may be implemented within a period of 6 months from the date
of receipt of a copy of this order. No costs.
6.
Aggrieved by the order of the Tribunal, the AFHQ (DRs) Civil Service Officers'
Association filed Writ Petition No. 4058 of 2002, the Union of India filed
separate Writ Petition No. 5396/2002 and some of the Departmental Promotees ACSOs,
namely, Shri K.S. Dhingra and Smt. Ammini Rajan, filed W.P. Nos. 4458/2002 and
62/2003 respectively, whereas AFHQ Civil Services Officers filed C.W.P. No.
18073/2005 in the High Court of Delhi. The Division Bench of the High Court
allowed the Writ Petition Nos. 4058/2002 and 5396/2002 by an order dated
14.11.2006 and set aside the order dated 01.04.2002 recorded by the Tribunal in
OA No. 1356/1997 with further direction to the respondentUnion of India to
determine the issue of seniority in accordance with the judgment of the
Tribunal in TA No. 356/1985 dated 20th November, 1992.
C.W.P.
No. 62/2003 and C.W.P. No. 4458/2002 filed by the DPs were dismissed and CWP
No.18073/2005 was disposed of on 15.01.2007 on the basis of direction in the
above-said writ petitions. These appeals, therefore, arise from the said
judgments and orders of the High Court.
7. The
case of the parties is that prior to the year 1968, the AFHQ Civil Services
were governed by the executive instructions as there were no statutory rules
governing the service. On 1st March 1968,
the Armed Forces Headquarters Civil Service Rules, 1968 (hereinafter referred
to as "the Rules") were framed, wherein the services are classified
in the following Grades:-
(a)
Senior Administrative Grade
(b)
Director
(c)
Selection Grade (Senior Civil Staff Officer/Joint Director)
(d)
Civil Staff Officer/Deputy Director
(e)
Assistant Civilian Staff Officer/Section Officer (initially designated as
Superintendent)
(f)
Assistant Rule 16 of the said Rules deals with the seniority, which provides
that the relative seniority of the direct recruit and promotees shall be
regulated in accordance with the provisions made in this behalf in the Third
Schedule.
As per
the Third Schedule of the Rules, all temporary vacancies in the grade of ACSO
shall be filled by temporary promotion from amongst the Assistants by the
method of selection. The Third Schedule further provides that substantive
appointment to 75% of the substantive vacancies shall be made in order of
seniority of the temporary officers of the grade, who have completed the period
of probation subject to the rejection of unfit. 25% of the substantive
vacancies shall be filled up by the direct recruit through Civil Service
Examination conducted by UPSC. As per Note (2) of Third Schedule, unfilled
vacancies of DR quota may be filled temporarily by promotion from amongst
Assistants by selection method.
8.
Aggrieved by the Seniority List of 1977 published by the Department, which was
based on the principle of ante-dated seniority in respect of ACSOs (DR), some
of the ACSOs (DP) filed Writ Petition No. 3/1978 titled as M.G. Bansal &
Ors. v. Union of India & Ors. in the High
Court of Delhi inter alia praying for the following reliefs:-
(a)
Respondents have misapplied, misconstrued and misinterpreted Rule 16(7) as well
as Third Schedule particularly Note (2), which violates Articles 14 and 16 of
the Constitution of India.
(b)
The Quota Rule has been applied discriminately without having regard to the
approved service.
(c)
When the direct recruits were inducted in the service, they were placed above
departmental promotees who had been promoted much earlier.
The
said placing in the seniority list was done irrespective of the date of
appointment of the direct recruits and they could not be positioned higher than
the Departmental Promotees.
9.
After the constitution of the Central Administrative Tribunal in the year 1985,
the writ petition was transferred to the Tribunal and was numbered as T.A. No.
356/1985. The Tribunal by its order dated 2nd June, 1989 disposed of the said
petition holding that the quota prescribed in the Rules has not broken down and
the seniority between the direct recruits and promotees regularly
appointed/promoted within their respective quota should be determined by the
length of the continuous officiation in the grade of ACSOs from their respective
appointment to the substantive vacancies under Third Schedule.
10. It
appears from the record that on 8th November 1989, the Union of India and some DR Officers filed two Special
Leave Petitions before this Court against the order of the Tribunal dated 2nd June 1989. This Court by its order dated 20th July 1991 held that the CAT had decided the
controversy without adverting to the Rules applicable to the service,
particularly Note (2) in the Third Schedule and the matter must, therefore, be
decided afresh. Pursuant to the order of this Court, the CAT again decided M.G.
Bansal's case (supra) by an order dated 20th November 1992 in the following
manner:-
"(a)
It is held that Rule 16(7) and Schedule Third so far as it relates to
appointment of the promotees and Direct Recruits in their respective quota and
determination of seniority on the basis of quota and rota is held valid and
these are not ultra vires of Articles 14 and 16 of the Constitution of India.
(b)
Seniority between Direct Recruits and Promotees regularly appointed/promoted
within their respective quota should be determined by the length of the
continuous officiation in the grade of ACSO from their respective appointment
to the substantive vacancies under Schedule II within their quota, i.e., in the
case of promotee ACSOs the length of continuous officiation in the grade will
be reckoned from the date when they are promoted in substantive vacancies.
(c) To
elucidate further, in the case of temporarily appointed promotee ACSOs under
Note (2) of Schedule III of the rules in the direct recruit quota w.e.f. 1969
onwards till 1977 and also thereafter their seniority will be reckoned from the
date when they get a berth in the substantive vacancies of their 75% quota as
envisaged under Schedule III of the Rules.
(d)
The incumbents belonging to one source in excess of their own quota and
utilizing the quota of the incumbents belonging to another source will only
officiate in the promoted post. It is made clear that the direct recruits when
inducted as nominees of the UPSC, the promotees in the quota of the direct
recruits on the basis of Note (2) of the Rules of Schedule III will either be
reverted or will be absorbed in the vacancies within their quota of subsequent
year. The period of officiation outside their quota of either of their
incumbents from other source will not count for their seniority. If an officer
has been promoted within his quota, then it would be date of confirmation which
would be relevant for the officer's seniority.
(e)
When the promotions are made from either of the sources, by direct recruitment
or by departmental promotion there shall be due compliance of the various
instructions and office memorandum issued by the Department of Personnel and
Training on the reservation of vacancies for SC/ST and categories in the
proportion directed in the said instruction. The reservation, however, shall
remain only at the time of appointment and not in the seniority inter se of the
Direct Recruits and promotees which shall be fixed as laid down in Rule 16(7)
read with Schedule III and as directed in the preceding sub-paras above.
(f) It
is further directed that each quota, as referred to in Schedule 3 of the Rules
as to be worked out independently on its own force. Direct recruit quota of
ACSO which is confined to substantive vacancies in the grade can be filled by
temporarily appointed Assistants by promotion in the grade of ACSO, but without
giving them any right of seniority on the basis of continuous officiation on
the vacancies earmarked for Direct Recruits and indent for which has been sent
to the UPSC for nomination from the civil services examination of a particular
year. The hopes and aspirations of the promotees aforesaid cannot be related to
availability of Direct Recruits filling their quota in that particular year and
only it can be when there is total collapse and break down of the quota for a
number of years.
(g)
None of the parties including the official respondents have given relevant data
as to when the actual promotion of Assistants were made to the temporary cadre
of ACSO in the direct recruit quota under Note (2) of Schedule 3 the official
respondents on the other hand have taken the stand in the chart quote in the
body of the judgment that of such vacancies in the direct recruit quota were
left unfilled and have been filled temporarily by the Assistant by making
departmental promotions and since the exact number is not coming for the and
also the position whether such departmental promotees were absorbed in the
subsequent vacancies within their quota of 75% direct is issued to revise the
impugned seniority list in the light of the observations made in the above sub-paras
which shall be made final after hearing the objections on the same and the
petitioners, who have since retired, shall be entitled to any consequential
benefits occasioned on account of the revision of the seniority list.
The
impugned seniority list of 1977 shall stand quashed to that extent. In the
circumstances, the parties shall bear their own costs."
11.
The Union of India, in the garb of implementing the above-said order of the
Tribunal in the case of M.G. Bansal, started splitting up vacancies from the
year 1992 and prepared two separate Select Lists for each year retrospectively
for the grade of ACSOs. One list was prepared in respect of ACSO(DPs) who
allegedly were temporarily appointed against the unfilled vacancies meant for
ACSO(DRs) as per Note (2) in the Third Schedule on the basis of calendar year
as against originally drawn period from 1st October to 30th September each year
as provided in the Rules. It appears that prior to the implementation of the
order in M.G. Bansal's case, draft Seniority List issued in 1995 was based on
the principle of carrying forward of slots and ACSO(DRs) were being given about
10 to 15 years ante-dated seniority even when they have not been holding any
office in the service. Some of the ACSO (DPs), namely, Smt. Ammini Rajan and
others filed O.A. No. 1356/1997 before the Central Administrative Tribunal
challenging the redrawn Select List for the years 1988-89 and 1989-90 in
purported compliance with the directions of M.G. Bansal's case. The Tribunal by
its order dated 1st
April, 2002, as
noticed above, disposed of the said O.A. with the above-said directions.
12.
The AFHQ Civil Services (DR Gazetted) Officers' Association and others filed
O.A. No. 2484/2004 before the Tribunal. The Tribunal by its order dated 1st September, 2005 dismissed the said application
holding that there is no illegality in the preparation of Seniority List. Some
of the ACSOs(DRs) filed C.W.P. No. 18073/2005 before the High Court of Delhi
challenging the order of the Tribunal dated 1st September, 2005 which was also allowed by the High
Court along with the above-mentioned writ petitions.
13. We
have heard the learned counsel for the parties, Shri R. Tanwar, President, AFHQ
Civilian Officers' Association and other parties in-person.
14.
Mr. Paramjit Singh Patwalia, learned senior Advocate appearing on behalf of the
appellant- AFHQ/ISOs SOs (DP) Association contended that the Division Bench of
the High Court has lost sight of the fact that Rules 16(6) and 16(7) do not
provide carrying forward of slots, which were examined in detail by the Central
Administrative Tribunal in M.G. Bansal's case. On the basis of the
interpretation of the said Rules, the CAT had fixed the seniority of DR and DP ACSOs
based on the length of continuous officiation and the High Court could not have
reversed the judgment of M.G. Bansal's case which had attained finality after
the dismissal of the SLP by the Hon'ble Supreme Court. He next contended that
in the Smt. Ammini Rajan's case, the main claim was only for the implementation
of the order recorded by the CAT in M.G. Bansal's case and other reliefs were
ancillary in substance.
According
to the learned counsel, one of the main issues agitated in the case of M.G.Bansal
was that DR ACSOs, who joined later in point of time, were made seniors to the promotees
ACSOs, who were regularly promoted earlier to the DR ACSOs. The situation had
occurred due to the assignment of antedated seniority, i.e., giving seniority
from the date of occurrence of vacancy to DR ACSOs and as the Central
Government has wrongly implemented the observations contained in para 25(b) of
M.G. Bansal's case, which resulted in filing of the petition by Smt. Ammini Rajan
and other DR ACSOs, which came to be decided by the CAT in favour of Smt. Ammini
Rajan and others, relying upon the judgment of the CAT in M.G. Bansal's case.
He also contended that if the vacant slots of DR vacancies are carried forward,
as directed in the impugned judgments of the High Court, the direct recruits
will get an undue advantage of more than 12 years of ante-dated seniority
without holding the office. He next submitted that the fundamental principle of
determination of seniority between direct recruits and promotees regularly
appointed/promoted within their respective quota should be determined by the
length of continuous officiation in the grade of ACSOs from their respective
appointment to the substantive vacancies under Third Schedule of the Rules
within their quota and the impugned judgment of the High Court observing in paras
13 and 16 to carry forward vacant slots of direct recruits is conflicting with
the final judgment of the CAT rendered in M.G. Bansal's case which has directed
the fixation of seniority based on length of continuous officiation of direct
recruits and promotees.
15.
Mr. L.N. Rao, learned senior Advocate, resisting the aforesaid submissions,
argued that the judgment of the High Court cannot be found faulty on any ground
and the seniority inter se between the direct recruits and departmental promotees
has to be determined in the ratio as prescribed in the Third Schedule of the
Rules, which deals with the substantive vacancies without giving any benefit of
length of the continuous officiation in the grade of ACSOs from the respective
appointment to the substantive vacancies under Schedule Three to the Rules
within their quota.
16.
Mr. Rakesh Khanna, learned senior Advocate appearing on behalf of the
respondents-AFHQ Civilian Officers' Association and Mr. P. Vishwanath Shetty,
learned senior Advocate appearing on behalf of the Union of India, have sought
to support the judgment of the High Court and contended that the promotees ACSOs
appointed under Note (2) of the Third Schedule cannot get the benefit of
continuous officiation in the grade of ACSOs. They also submitted that the
seniority of promotees among themselves was determined under Rule 16(5), i.e.
in the order in which they were appointed in substantive vacancies in their
quota and the inter se seniority of the DRs among themselves was determined as
per the Rule 16(6) in the order of merit in which they were placed in the
competitive examination. According to the learned counsel, the actual date of
joining in the post had no bearing on fixation of seniority among the promotees
and direct recruits themselves and inter se seniority of DRs and DPs appointed
against the substantive vacancies in their own quota was determined on the
basis of rotation of vacancies between DRs and DPs in the ratio of 75% : 25%
without allowing lapsing of vacancies either from DRs or DPs quota.
17. In
support of the respective contentions, the learned counsel for the parties have
relied upon certain decisions of this Court, which we shall deal and consider
in the later part of the judgment.
18.
After a perusal of the facts involved here and having heard the parties at
length, we feel that the issues that need to be addressed by us in this case
are:- (i) Whether seniority between Direct Recruits and Promotees regularly
appointed/promoted within their respective quota should be determined by the
length of the continuous officiation in the grade of ACSO from their respective
appointment to the substantive vacancies under Schedule II of the Rules within
their quota, i.e., in the case of promotee ACSOs the length of continuous officiation
in the grade will be reckoned from the date when they are promoted in
substantive vacancies in their quota.
(ii)
Whether the incumbents belonging to one source in excess of their own quota and
utilizing the quota of the incumbents belonging to another source will only
officiate in the promoted post. The direct recruits when inducted in service
through selection by the UPSC, the promotees in the quota of the direct
recruits on the basis of Note (2) of the Rules of Schedule III will either be
reverted or will be absorbed in the vacancies within their quota of subsequent
year and the period of officiation outside their quota of either of the
incumbents from other source will not count for their seniority.
19.
For the purpose of determination of the above-said points, we may notice the
relevant Rules.
Rule
13 deals with probation, which states that
(1)
Every direct recruit shall initially be appointed on probation for two years
from the date of appointment and
(2)
Every person other than a direct recruit shall, when appointed to the grade of
CSO, ACSO and Assistant, be on probation for a period of two years from the
date of such appointment. Rule 14 deals with confirmation of probationers. The
quota between the direct recruits and the promotees is governed by Rule 16,
which reads as under:-
"16.
Seniority:-
(1)
All permanent offices included in the initial constitution of a Grade under
Rule 9 shall rank senior to all persons substantively appointed to that Grade
with effect from any date after the appointed day, and all temporary officers
included in the initial constitution of a grade under that rule shall rank
senior to all temporary officers appointed to that Grade with effect from any
date after the appointed day.
(2)
The seniority inter se of permanent officers included in the initial
constitution of a Grade shall be regulated in the order in which they are so
appointed.
(3)
The seniority inter se of temporary officers included in the initial
constitution of a Grade shall be regulated in the order in which they are so
appointed.
(4)
The seniority inter se of officers regularly appointed to the grade of Joint
Director and Senior Civilian Staff Officer before the coming into force of the
Armed Forces Headquarters Civil Service (Second Amendment) Rules, 1975, shall
be regulated in the Selection Grade of the Service in the following order:-
(a)
Officers holding the posts of Joint Directors in an officiating capacity,
arranged in the order of their seniority in that Grade;
(b)
Officers holding the posts of Senior Civilian Staff Officers in a substantive
capacity, arranged in the order of their seniority in that Grade;
(c)
Officers holding the posts of Senior Civilian Staff Officers in an officiating
capacity, arranged in the order of their seniority in that Grade;
(5)
Except as provided, in sub-rule (7), the seniority of persons appointed to any
grade after the appointed day shall be determined in the following manner,
namely:-
(i)
Permanent Officers.- The seniority inter se of officers substantively appointed
to the Grade after the appointed day shall be regulated in the order in which
they are so appointed;
(ii)
Temporary Officers.- The seniority inter se of temporary officers appointed to
the Grade after the appointed day shall be regulated in the order of their
selection for such promotion.
(6)
Direct recruits shall be ranked inter se in the order of merit in which they
are placed at a competitive examination on the results of which they are
recruited, the recruits of an earlier examination being ranked senior to those
of a later examination. On confirmation, their inter se seniority shall be
regulated in the order in which they are so confirmed :
Provided
that the seniority of persons recruited through the competitive examinations
held by the Commission
(i) in
whose case offers of appointment are revived after being cancelled, or
(ii) who
are not initially appointed for valid reasons but are appointed after the
appointment of candidates recruited on the basis of the results of the
subsequent examination or examinations, shall be such as may be determined by
the Government in consultation with the Commission.
(7)
The relative seniority of the direct recruits to a Grade and persons appointed
to the Grade by departmental promotion shall be regulated in accordance with
the provisions made in this behalf in the Third Schedule.
(8)
All officers substantively appointed to any Grade shall rank senior to those
holding temporary or officiating appointments in that Grade.
20.
Rule 2(p) defines "temporary officer" to mean a person holding a
temporary or officiating appointment in that Grade on the basis of his being
regularly approved for such appointment. Rule 2(l) defines "permanent
officer" to mean a person who has been substantively appointed to a
substantive vacancy in that grade. Rule 10 provides for future maintenance of
the service which states that the service shall be maintained in future as
indicated in the Third Schedule.
Third
Schedule of the Rules in relation to ACSO (Group 'B' Gazetted) reads as under:-
"Substantive vacancies
(a)
Substantive appointments to 75% of substantive vacancies in the Grade shall be
made in the order of seniority of temporary officers of the Grade, who have
completed the period of probation satisfactorily, subject to the rejection of
the unfit.
(b)
25% of the substantive vacancies shall be filled by direct recruitment on the
basis of combined competitive examination held by the Commission for
recruitment to the Central Services, Group 'A'/Group 'B', Assistant Civilian
Staff Officers so recruited shall be confirmed in the manner as indicated in
Rule 14.
The
relative seniority of the above categories of officers shall be determined
according to the rotation of vacancies between departmental promotees and
direct recruits which shall be based on the quotas of vacancies reserved for
promotion and direct recruitment.
Note
(1) Reservation of vacancies against the quota reserved for direct recruitment,
for Scheduled Castes and Scheduled Tribes and released Emergency Commissioned
Officers and Short Service Regular Commissioned Officers shall be in accordance
with the rules and orders issued by the Government from time to time.
(2)
Substantive vacancies at (b) may be filled temporarily by promotion from
amongst Assistants on the basis of selection. Such promotions shall be
terminated when the nominees of the Commission become available to fill the
substantive vacancies."
Temporary
Vacancies Temporary vacancies in the Grade of Assistant Civilian Staff Officer
shall be filled by temporary promotion from amongst Assistants on the basis of
selection.
Provided
that if any person in the Grade of Assistants is considered for promotion to
the Grade of Assistant Civilian Staff Officer, all persons belonging to
Scheduled Castes or Scheduled Tribes who are senior to him in that Grade, shall
also be considered notwithstanding that they may not have rendered five years'
continuous approved service in that grade.
21. On
a plain reading of the above-extracted provisions of Third Schedule, it is
clear that substantive vacancies to the extent of 75% shall be made in the
order of seniority of temporary officers of the Grade, who have completed the
period of probation successfully and 25% of the substantive vacancies shall be
filled by direct recruitment on the basis of qualifying Combined Competitive
Examination held by the Commission for recruitment to the Central Services,
Group 'A' /Group 'B'. The relative seniority of the above categories of
officers shall be determined according to the rotation of vacancies between
departmental promotees appointed to the substantive posts and direct recruits
which shall be based on the quota of vacancies reserved for each source. Note
(2) under the Third Schedule of the Rules provides that "substantive
vacancies" meant for direct recruits may be filled temporarily by
promotion from amongst Assistants on the basis of selection, but such
promotions shall be terminated when the nominees of the Commission become
available to fill the substantive vacancies in 25% quota.
22. In
the teeth of the relevant Rules governing the relative seniority inter se
between DRs and DPs under Rule 16 and substantive appointments of ACSOs in the
ratio of 75% under clause (a) and appointments of direct recruits to the
Central Services Group 'A' / Group 'B' in the ratio of 25% as provided in
clause (b), the seniority list is required to be maintained by the authority.
23.
The seniority list of 1977 circulated by the respondent- Union of India inter
se the DRs and DPs was under challenge before the Central Administrative
Tribunal, Principal Bench, New Delhi, in
T.A. No.356/85 (C.W. 3/78) titled Shri M.G. Bansal & Ors. v. Union of India & Ors., which was decided on
20.11.1992. In the said petition, Union of India had submitted a Tabular
Statement showing details of substantive vacancies in the grade of Assistant
Civilian Staff Officers and from the perusal of the Chart, the Tribunal
observed that every time the vacancies were calculated and a requisition was
sent to the UPSC for sending nominees for appointment as direct recruits in the
ratio 15% SC, 7.5% ST and 25% released emergency commission officers of the
total number of vacancies. The Tribunal has found that all the direct recruits,
who were nominated by the UPSC, did not join in that particular year. Before
the Tribunal, the case of the Interveners was that the quota has lapsed and cannot
be carried forward, whereas the case of the direct recruits was that the quota
rule had broken down as direct recruitments had not been made for many years
and on account of such failure, fixation of seniority with reference to the
rotational method was not available to be followed. The Tribunal, on perusal of
the Chart made available to it by the Union of India, observed that since 1969
till 1977 in each of the year, direct recruits have joined the service, though
in lesser number. In 1969, 10 direct recruits joined against the quota of 32;
in 1970, 3 direct recruits joined against 13 vacancies; whereas in the year
1971, 11 direct recruits joined against 16 vacancies, whereas in the year 1972,
16 direct recruits joined against 9 vacancies and in the year 1973, 8 direct
recruits joined against 19 vacancies. Similarly, in the year 1974, against 20
vacancies only 13 direct recruits joined the service; in 1975, 29 direct
recruits joined against 19 vacancies; in 1976, 17 direct recruits joined
against 25 vacancies and in the year 1977, 23 direct recruits joined against 14
vacancies. Thus, there was a shortfall of direct recruits in joining the
service in their quota excepting in the years 1972 and 1975 where persons in
excess have joined than the earmarked quota as per the rules. It was a specific
case of the DPs before the Tribunal that no substantive/temporary vacancy was
kept unfilled and these were filled by promoting Assistants on officiation
temporary basis in accordance with the provisions of the Rules. Thus, there has
been no break down of the quota. The quota also to some extent was not filled
up to the extent it was desired though UPSC has recommended sufficient number
of direct recruits, but because of certain facts, all of them did not join for
the reasons best known to them. The record would also show that the Union of India have
carried forward the unfilled vacancies of direct recruits to the next year. The
Chart would further show that in the year between 1968 and 1974, the direct
recruits vacancies were 87 in the ratio of 25% in terms of the rules and the
vacancies intimated to UPSC were 132. The UPSC nominated 126 candidates, but 48
candidates actually joined the service.
Thus,
taking all these facts into account, the Tribunal has rightly observed that
there cannot be a case where the quota has broken down; rather this is a case
of distortion of the quota. Note (2) to the Third Schedule referred to above
mandates that substantive vacancies at (b) may be filled temporarily by
promotion from amongst Assistants on the basis of selection. Such promotion
shall be terminated when the nominees of the Commission would become available
to fill the substantive vacancy. In the AFHQ Civil Service, promotions were
made against direct recruit vacancies after the vacancies had been notified to
the Public Commission.
The
promotions were temporary and the promotees were given seniority in accordance
with Rule 16.5(ii) and after completing their probation, they were confirmed
only when substantive vacancies were found available in their quota. The inter
se seniority was, therefore, only between substantive vacancy promotees and
substantive direct recruits. All promotee substantive ACSOs were assigned
seniority under Rule 16(1), whereas all direct recruits were assigned seniority
under Rule 16.6. Thereafter, these two seniority lists of substantive officers
from the two sources of recruitment are integrated under Rule 16.7, i.e. in
accordance with the well-known principle of quota rota rule. Thus, it is
evident that the late induction of the direct recruits does not interfere with
the seniority of the promotee officers under Rule 16.5.
24.
Further, Note (2) to the Third Schedule is to be read with Rule 11.1 of the
Rules and the Regulations made thereunder so that substantive vacancies shall
be intimated to UPSC well within time. Note (2) is an enabling provision
insofar as it permits the Government to fill the vacancies temporarily through
selection. There is a mandate in Note (2) that these promotions will be
terminated when the direct recruits would join the post. Thus, by the time the
direct recruit had come or is likely to come, such a promotee who happens to
occupy a berth of the direct recruit by virtue of Note (2) to Schedule Third
will normally, because of his seniority, get a berth in his own quota. The
order of the Tribunal shows that the applicants and the interveners, however,
could not furnish any data to show that the promotees, who are occupying the
berth of direct recruits under Note (2) temporarily, were subsequently got
adjusted in the prescribed quota of departmental promotees against the
substantive vacancies.
On
perusal, we find that no time-limit is prescribed in Note (2) during which such
temporarily promoted Assistants to the grade of ACSOs in the quota of direct
recruits can enjoy that benefit. Note (2) only provides that whenever direct
recruits become available, the appointment of such promotees shall stand
terminated. No other interpretation of Note (2) can be possible. Note (2) to
the Third Schedule safeguards the interest of the direct recruits, who though
are successful in the Civil Service Examination conducted by the UPSC and yet
are waiting for their appointment as the appointment of the direct recruits is
bound to take some time. Merely because there is late arrival of direct
recruits, the quota reserved for them cannot be taken as lapsed nor can it be
taken to have led to break down of the quota rule. The relevant rules, as
referred to above, clearly envisage that the continuous officiation in a
service without break also gives the benefit of seniority, but in a case where
the recruitment is from two sources and the quota is prescribed, then the
person from one source cannot take the benefit available to the other source
within the quota. Thus, promotees who have been promoted within their quota of
75% under the rules as prescribed under Third Schedule read with Rule 16(7) of
the Rules would get the benefit of continuous officiation from the date of
their substantive appointment to the grade of availability of a substantive
post and after having worked on temporary basis in the grade. Those who have
been appointed temporarily under Note (2) from the cadre of Assistants to the
grade of Assistant Civilian Officers temporarily, would not get the benefit of
their continuous officiation and shall be liable by operation of law to be
reverted or there shall be deemed reversion when the nominees from the UPSC
would join on the recommendations of the UPSC. Such temporary officers may not
actually face reversion because by the time the vacancies of the next year may
become available in their quota of 75% and they can very well, by virtue of
their seniority, earn the benefit of substantive appointment under the Third
Schedule.
25.
Now, coming to the issue whether the High Court was justified in granting
relief to DRs Association in CWP No.4058 of 2002 and Union of India v. Smt. Ammini
Rajan & Ors. in Writ Petition (C) No.5396 of 2002 by overlooking and not
properly appreciating the substance of the order recorded by the CAT in Shri
M.G. Bansal's case. The High Court, by its impugned order dated 14.11.2006, has
held that the order of the Central Administrative Tribunal in Smt.Ammini Rajan's
case is contrary to its earlier decision dated 20.11.1992 passed in M.G. Bansal's
case. The High Court directed the issue of seniority to be determined as it was
done prior to Smt. Ammini Rajan's case was decided by the Tribunal. The High
Court further held that the direction of the CAT where it is held that the
seniority of DRs should be determined from the date of joining and further that
the unfilled vacancies and not the slots can be carried forward, is
contradictory to the decision of the CAT in M.G. Bansal's case. We are afraid
to agree with the reasoning of the High Court. If such reasoning of the High
Court is accepted, the consequences would be that the draft seniority list of ACSOs
would be taken as it stood on 01.05.1995, which was challenged before the
Tribunal in O.A. filed by Smt. Ammini Rajan and others as the draft seniority
list was not settled in terms of the decision of the CAT in M.G. Bansal's case,
which admittedly has attained finality. The judgment of the High Court setting
aside the order of the Tribunal in Smt. Ammini Rajan's case would plainly
amount to interference with the decision of the CAT in M.G. Bansal's case and
further if the order of the High Court is given effect to, the result thereof
would be that the DRs. shall be permitted to take advantage of more than 12
years of ante-dated seniority without holding an office. The petition filed by Smt.
Ammini Rajan was primarily seeking implementation of the earlier decision of
the CAT in Shri M.G. Bansal's case. On bare examination of the decision of the
CAT rendered in Smt. Ammini Rajan' case, we find no discrepancy, no
contradiction or overlapping or inconsistency whatsoever in the said order as
compared to the earlier decision of the CAT in Shri M.G. Bansal's case.
Therefore, the order of the High Court, in our view, is erroneous as the High
Court has committed an error in understanding and appreciating the gist of the
order recorded by the CAT in Smt. Ammini Rajan's case.
26.
Mr. Paramjit Singh Patwalia, learned senior Advocate appearing on behalf of the
appellant-AFHQ/ISOs SOs (DP) Association, in support of his submissions, placed
reliance upon the case of Suraj Prakash Gupta & Ors. v. State of J & K
& Ors. [(2000) 7 SCC 561]. In the said case, this Court while dealing with
a situation of giving direct recruitment appointment ante-dated from the date
of occurrence of a vacancy in the direct recruitment quota, even if on that
date the said person was not directly recruited. The Court, in answer to Point
No.4, held as under:
"Point
4 Direct recruits cannot claim appointment from date of vacancy in quota before
their selection
80. We
have next to refer to one other contention raised by the respondent direct
recruits. They claimed that the direct recruitment appointment can be
ante-dated from the date of occurrence of a vacancy in the direct recruitment
quota, even if on that date the said person was not directly recruited. It was
submitted that if the promotees occupied the quota belonging to direct recruits
they had to be pushed down, whenever direct recruitment was made. Once they
were so pushed down, even if the direct recruit came later, he should be put in
the direct recruit slot from the date on which such a slot was available under
the direct recruitment quota.
81.
This contention, in our view, cannot be accepted. The reason as to why this argument
is wrong is that in service jurisprudence, a direct recruit can claim seniority
only from the date of his regular appointment. He cannot claim seniority from a
date when he was not borne in the service. This principle is well settled. In
N.K. Chauhan v. State of Gujarat 14 (SCC at p. 325, para 32) Krishna
Iyer, J. stated:
Later
direct recruits cannot claim deemed dates of appointment for seniority with
effect from the time when direct recruitment vacancy arose. Seniority will
depend upon length of service.
Again,
in A. Janardhana v. Union of India 25 it was held that a later direct recruit
cannot claim seniority from a date before his birth in the service or when he
was in school or college. Similarly it was pointed out in A.N. Pathak v. Secy.
to the Govt. (SCC at p. 767) that slots cannot be kept reserved for direct
recruits for retrospective appointments."
27. In
State of Uttaranchal & Anr. v. Dinesh Kumar Sharma [(2007) 1 SCC 683], this
Court has clearly held that the seniority is to be reckoned not from the date
when the vacancy arose, but from the date on which the appointment is made to
the post.
28. In
M. Subba Reddy & Anr., etc. v. A. P. State Road Transport Corporation &
Ors. [(2004) 6 SCC 729], relied upon by Mr. L. N. Rao, learned senior Advocate
appearing on behalf of AFHQ Civil Service (Direct Recruits-Gazetted) Officers'
Association, this Court while dealing with inter se seniority between direct
recruits and promotees to the posts of Assistant Traffic Manager (for short
"ATM") and Assistant Mechanical Engineer (for short "AME")
in A.P. State Road Transport Corporation, held that rota rule is inbuilt in the
quota prescribed in Item 3, Annexure 'A' (Section B) to A.P.
SRTC
Employees (Recruitment) Regulations, 1966 and could not be deviated from. In
that case, the appellant promotees were promoted to the posts of ATMs/AMEs
temporarily under Regulation 30 as there were no direct recruits available.
They were promoted subject to being reverted to substantive posts on approved
candidates becoming available. Regulation 34(6) states that the revertees shall
subsequently be considered for repromotion against the quota of vacancies
reserved for promotees. Therefore, one has to read Regulation 3 of the A.P.
SRTC
Employees (Service) Regulations, 1964 with Regulations 30 and 34 of the
Recruitment Regulations. It is only when such revertees are repromoted as per
Regulation 34, they can be deemed to have been appointed to the posts of ATM or
AME. Therefore, when the appellants were tentatively appointed to the post of
ATMs/AMEs originally for want of direct recruits and to the posts reserved for
direct recruits, it cannot be said that they were first appointed to that
category within the meaning of Regulation 3 of the Service Regulations.
Therefore,
seniority had to be fixed between the direct recruits and the promotees
strictly in accordance with the quota provided for in Item 3 of Annexure 'A'
(Section B). The said Regulations prescribe a quota of 1:1, which leads to rota
for confirmation. The contention of the appellants before this Court was that
they had a right to be promoted within their quota during the years 1981 to
1987, when vacancies for promotees' quota became available. M. Subba Reddy,
appellant in that case, was regularized from 27.12.1986 vide order dated
9.9.1988, when no direct recruits were available and, therefore, it was
improper for the Corporation to place direct recruits above the promotees. The
appellant submitted that in such a case the quota in Item 3(1) of Annexure 'A'
to the Recruitment Rules would not apply; that the said item prescribed only
quota and not rota for seniority and that the direct recruits could not claim
appointment from the date of vacancy in their quota before their selecton. They
added that seniority was dealt with only by Regulation 3 of the Service
Regulations, 1964 and not by Regulation 34 of the Recruitment Regulations,
1966. That in view of the 15.9.1995 amendment, Regulation 34 referred to only
allocation of vacancy and not for determination of seniority. A total ban for
direct recruitment was imposed by the State from the year 1977 to 1988 and,
thus, the purported quota-and-rota rule contained in Item 3 of Annexure 'A'
could not have been given effect to. The majority view of this Court was that
where there is inaction on the part of the Government or employer or imposed
ban on direct recruitment in filling up the posts meant for direct recruits, it
cannot be held that the quota has broken down. We, with respect, do not support
the view of the learned Judges that in the facts and circumstances of the case
the quota has not broken down because of inaction on the part of the Government
in imposing ban in filling up the posts meant for direct recruits. The
appellants in the said case were promoted in a regular manner having been
regularized in service with retrospective effect. Their services were not
regularized from the date of their initial ad hoc promotion but with effect
from the date when the vacancies became available.
Their
services after regularization would not be by way of a stop-gap arrangement.
The direct recruits who were appointed in the years 1990 and 1991, in terms of
Item 3 of Annexure 'A' would be considered to have been appointed only after
their successful completion of training. They were borne in the cadre in the
years 1990-91 and, thus, prior thereto they cannot claim seniority. The learned
third Judge, dissenting with the learned two Judges, has held that the direct
recruit can claim seniority from the date of his regular appointment, he cannot
claim seniority from a date when he was not borne in the service. Thus, the
direct recruits of 1990 and 1991, by reason of the impugned seniority list,
could not have been placed over and above the appellants-promotees because the
purported quota and rota rule contained in Item 3 of Annexure 'A' could not
have been given effect to because the State Government had imposed total ban
for direct recruitment from the year 1977 to 1988. In such a situation, the
said quota rule became inoperative. We agree with the dissenting view of the
learned Judge that in the facts of the case, the quota rule became inoperative
because the direct recruits were borne in the cadre when they were appointed
against the vacancies meant for them. Therefore, the majority view in M. Subba
Reddy & Anr., etc. (supra) is of no assistance to the AFHQ Civil Service
(Direct Recruits) Officers Association as the relative seniority between the
direct recruits and regularly appointed/ promoted candidates within their
respective quota, in the present case, shall be determined by the length of the
continuous officiation in the grade of ACSO from their respective appointment
to the substantive vacancies in terms of Schedule Third within their quota as
held by the CAT in M.G. Bansal's case, which has attained finality after
dismissal of the SLPs filed against the said order of the Tribunal.
29.
Mr. Rakesh Khanna, learned senior Advocate appearing on behalf of some of the
respondents, in support of his submissions, has placed reliance upon the case
of O.P. Singla & Anr., etc. v. Union of India & Ors. [(1984) 4 SCC 450]
inter alia contending that for determining an equitable rule of seniority
between direct recruits and promotees, attempt must be made to minimise, as far
as possible, the inequities and disparities in terms of the rota-quota rule
which has broken down in this case. In the said case, this Court has held that
the seniority of DRs and Promotees appointed under the relevant rules must be
determined according to the dates of which direct recruits were appointed to
their respective posts and the dates from which the promotees have been
officiating continuously either in temporary posts created in the service or in
substantive vacancies to which they were appointed in a temporary capacity. The
said decision, in our view, is of no assistance to the contesting parties
represented by Mr. Rakesh Khanna, learned senior counsel, in the facts and
circumstances of the present cases.
30. In
Arvinder Singh Bains v. State of Punjab & Ors. [(2006) 6 SCC 673], relied
upon by Mr. Siddarth Dave, Advocate, the issue before this Court related to the
inter-relation between Rules 18 and 21 of the Punjab Civil Services (Executive
Branch) (Class I) Rules, 1976. On consideration of the factual situation of the
case and the rules governing the services of the employees, this Court said
that rota and quota must necessarily be reflected in the seniority list and any
seniority list prepared in violation of rota and quota is bound to be negated.
The Court found in the said case that the action of the respondents in
determining the seniority is clearly in total disregard of rota-quota rule
prescribed in Rule 18 of the 1976 Rules and, therefore, writ of mandamus was
issued to the respondents directing them to prepare the seniority list of the
appellants who belong to the PCS (EB) in accordance with Rule 18 and read with
Rule 21 of the 1976 Rules by fixing seniority according to the roster
prescribed under Rule 18 of the 1976 Rules.
31. In
Gonal Bihimappa v. State of Karnataka & Ors. [1987 Suppl. 207] relied upon
by Mr. P. Vishwanath Shetty, learned senior Advocate appearing on behalf of the
Union of India, this Court held that the quota rules has to be strictly
enforced and it is not open to the authorities to meddle with it on the ground
of administrative exigencies. Further, in that case the scheme in force
relating to the services for fixing inter se seniority took into account the
filling up of the vacancies in the service from the two sources on the basis of
the quota and fixation of inter se seniority in the gradation list has to be
worked out on the basis of quota. There cannot be any doubt or quarrel to the
well-settled law that inter se seniority between direct recruits and promotees
should be fixed on the basis of quota-and-rota rule/instructions governing the
service conditions of the employees.
32. In
the light of the above factual situation, service rules governing the
conditions of service of employees and the settled proposition of law, we are
of the opinion that the judgment and order dated 14.11.2006 in C.W.P.
No.4058/2002, CWP No.5396/2002 and subsequent judgment dated 15.01.2007 in CWP
No.18073/2005 of the High Court of Delhi passed in AFHQ Civil Service Officers
Association v. Union of India & Ors. are not sustainable and deserve to be
set aside to the extent of setting aside the order of the Tribunal in Smt. Ammini
Rajan's case holding that the said order is contrary to the earlier judgment of
the CAT dated 20.11.1992 recorded in M.G. Bansal's case. This view of the High
Court apparently appears to be contrary and contradictory to the judgment and
order of the CAT dated 20.11.1992 passed in T.A. No.356/1985 (CW 3/1978) titled
Shri M.G. Bansal & Ors. v. Union of India & Ors. in which the impugned
seniority list of 1977 stood quashed and the respondent(s)-authority were
directed to implement the said judgment in terms of the observations/directions
contained in paragraph 25 of the said judgment. The judgment of the CAT in M.G.
Bansal's case has attained finality when two SLPs filed by the DRs against the
said judgment came to be dismissed by this Court on 20.01.1995. Consequently,
the Writ Petition CWP No.4058/2002 of the AFHQ Civil Service (Direct Recruits- Gazetted)
Officers' Association and CWP No.5396/2002 preferred by Union of India against
the order of the CAT in OA No.1356/1997 titled Smt. Ammini Rajan & Ors. v.
Union of India & Ors. are dismissed. CWP No.62/2003 and CWP No.4458/2002
filed by the DPs shall stand allowed accordingly. CWP No.18073/2005 shall also
stand disposed of in terms of this judgment. As the dispute and controversy
relating to inter se seniority between the DPs and DRs has remained unsettled
and is lingering over the past many years, the respondent-authority is directed
to determine and settle the seniority list in strict compliance and spirit of
the judgment of the CAT dated 20.11.1992 in TA No.356/1985 (CW 3/1978) rendered
in Shri M.G. Bansal & Ors. v. Union of India & Ors. The directions so
contained in the said judgment shall be carried out within three months from
the date of this judgment.
33.
For the reasons stated above, the appeals are allowed to the extent indicated
above. However, in the facts and circumstances of the case, the parties are
left to bear their own costs.
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