Full Judgment Text
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PETITIONER:
KARAM PAL & ORS. ETC.
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT12/03/1985
BENCH:
MISRA RANGNATH
BENCH:
MISRA RANGNATH
BHAGWATI, P.N.
SEN, AMARENDRA NATH (J)
CITATION:
1985 AIR 774 1985 SCR (3) 271
1985 SCC (2) 457 1985 SCALE (1)488
CITATOR INFO :
D 1986 SC 638 (12,21)
R 1987 SC2359 (20)
ACT:
Labour and Services:
Central Secretariat Service Rules, 1962, Rules 13, 18
and Regulation 3 of Fourth Schedule-Seniority and Promotion
of direct recruits and promotees-Quota and rota rules-
Whether select list can be challenged in the absence of
challenge to the Rules and Regulations.
HEADNOTE:
The petitioners 1 Assistants are covered by the Central
Secretariat Service Rules, 1962 (Rules, for short). They
challenged under Art. 32 the correctness of the Select List
for the grade of Section Officers for the years 1978, 1979
and 1980 and the common seniority list dated April 26, 1979
as also the provisional supplementary list of Assistants on
the ground: (i) that the quota rule had broken down as
direct recruitment had not been made in many years and on
account of such failure, fixation of seniority with
reference to the rotational method was not available to be
followed; and (ii) that Select List as contemplated by the
Rules had not been framed for quite a long period and in the
absence of such a select list framed in time, select lists
of 1978, 1979 and 1980 prepared without following the
criterion of length of service of officers in the grade of
Assistants was not only unfair and arbitrary worked out
prejudicially to the petitioners. The petitioners prayed
that the select list and seniority list be republished on
the basis of length continuous service in the grade of
Assistants and promotion to the grade of Section Officers be
granted from the dates when Assistants junior to them were
promoted as Section Officers. On the other hand, Respondent
No. 1-Union of India argued that there had been regular
direct recruitment into the Service in all years except only
two, viz., 1966 and 1970. Thus, the quota rule has,
therefore, really not broken down as pleaded by the
petitioners and the Rules, having contemplated a scheme of
direct recruitment and promotion, quota and rota have to
work together and since the manner of fixation of seniority
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is covered by statutory rules, the petitioners are, not
entitled to claim determination of seniority on the basis of
length of service.
272
Dismissing the Writ Petitions,
^
HELD:1 (i) It will be appropriate if a detailed
reference to the Rules is made in order to ascertain the
Scheme. The Rules contemplate that there shall be separate
cadres in respect of Section Officers’ grade and the
Assistants’ Grade and these shall be constituted for each
Ministry or Office specified in Column 2 of the first
schedule. Sub-rule (6) of Rule 13 prescribes that 50% of
the vacancies in the Assistants’ grade in any cadre is to be
filled by direct recruitment on the results of the
competitive examinations to be conducted by the Commission
from time to time and the remaining vacancies are to be
filled by substantive appointment of persons included in the
select list for the Assistants’ grade in that cadre. Such
appointments are to be made in the order of seniority in the
select list except when for reasons to be recorded in
writing, a person is not considered fit for appointment in
his turn. When difficulties were experienced in working out
the Rule, two provision were added to sub-rule(6). The first
proviso provided that substantive vacancies in any cadre
reserved for direct recruitment on the appointed day against
which no direct recruits have been appointed may be filled
by substantive appointments made after the date of
commencement of the Central Secretariat Service (Third
Amendment) Rules, 1970, of persons included in the Select
List for the Assistants’ grade in that cadre. The second
proviso was to the effect that if sufficient number of
candidates are not available for filling up the vacancies in
a cadre in any year by direct recruitment as aforesaid, the
unfilled vacancies in the direct recruitment quota in that
cadre shall be filled by the substantive appointment of
persons included in the Select List for the Assistants’
Grade in that cadre." Sub-rule (6)(a) provides that
notwithstanding anything contained in sub-rule (6), the
substantive vacancies reserved for direct recruitment as on
30th June 1979 on each cadre against which no direct
recruits have been appointed till that date plus 50% of the
number of such substantive vacancies n the cadre may be
filled by substantive appointments made after the date of
commencement of Central Secretariat Service (Third
Amendment) Rules, 1979, of persons included in the select
list for the Assistants’ grade in that cadre."
[276D; 278C-D; H; 279A]
1(ii). Rule 18, sub-rule(3) makes provision for the
rule in the matter of fixation of inter se seniority for the
Assistants’ grade. Direct recruits are to rank inter se in
the order of merit in which they are placed in the
competitive examination on the result of which recruitment
is effected. Recruits of an earlier examination are to rank
senior to those of a later examination, Persons appointed
substantively to the grade from the select list for that
grade shall rank inter se according to the order in which
they are so appointed and the inter se seniority between
direct recruits and persons substantively appointed to the
grade for that grade shall be regulated in accordance with
the provision made in the Fourth Schedule. Clause 3 of
Regulation 3 in the Fourth Schedule provides that direct
recruits to a grade and persons substantively appointed to
the Grade from the Select List for the Grade shall be
assigned seniority inter se according to the quotas of
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substantive vacancies in the Grade reserved for direct
recruitment and the appointment of persons included in the
Select List, respectively. The proviso to Clause 3 of
Regulation 3 provides that persons appointed substantively
in accordance with the provi-
273
sions of sub-rule (6) of rule 13 to the Grade from the
Select List in any cadre in any year, against direct
recruitment vacancies for which direct recruits are not
available shall be placed en bloc below the last direct
recruit appointed in that year irrespective of the quotas
reserved for direct recruits and persons included in the
Select List. [279F-G; 279H; 280A]
2. (i) The Rules have held the field for 22 years now.
During this period direct recruitment had not been made only
in two years being 1966 and ]970 Though in the writ
petitions a general stand had been adopted that direct
recruitment had not been made in several years, after the
counter affidavit was filled and it was emphatically
asserted that excepting in these two years direct
recruitment had been made in other years, there has been no
challenge to that assertion. There is no doubt that quota
and rota have got to go hand in hand and if the quota is not
properly adhered to, the rota System must fall. In fact, the
scheme is such that it can operate in an appropriate way
only when recruitment is effected through both the processes
as envisaged. In the instant case, the difficulty was
experienced in working out the process with the quota fixed
by the Rules had not been adhered to for one reason or the
other and vacancies were being carried forward for being
filled up in future years. This situation necessitated
insertion of the first proviso to sub-rule (6) or rule 13 in
August 197() and the other proviso in 1977 as also sub-rule
(6) (a) in 1979. The grievance voiced in these writ
petitions obviously relates to a period prior to the
modification of the scheme.
[280H; 281A-D]
2 (ii) Unless there is any serious failure in
implementing the Rules and grave injustice is done to some
individuals or a group of officers, it would not be proper
to interfere with the working of the scheme and dislocate
the inter se seniority of the officers in these grades. No
mala fides has been pleaded nor has any grave injustice been
established in the writ petitions. At the most a case of
improper working of the scheme with reference to some of the
officers has been alleged. Hari-splitting arguments, if
accepted, might indicate that some of the petitioners have
not been promoted to the grade of Section Officers as and
when due. This Court is of the view that if there has been
substantial compliance in implementing the scheme under the
Rules, judicial interference is not called for. [282B-C]
Dr. G. Marulasiddaiah v. Dr. T.G. Siddapparadhya & Ors.
[1971] 1 S.C.C. 568, N.K. Chauhan & Ors v. State of Gujarat
JUDGMENT:
State of U.P. & Ors. [1981] 1 S.C.R. 449 & V.T. Khanzode &
Ors. v. Reserve Bank of India & Anr. [1982] 3 S.C.R. 411
referred to.
S.B. Patwardhan & Ors. etc. v. State of Maharashtra &
Ors. [1977] 3 S.C.R. 775. & A. Janardhana v. Union of India
& Ors [1983] 2 S.C.R. 936 held inapplicable.
3. Neither in the writ petitions nor in arguments any
challenge was advanced against the vires of the Rules. In
the absence of challenge to the Rules and the Regulations,
resultant situations flowing from compliance of the
274
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same are not open to attack. Occasion for similar grievance
would not arise in future as the proviso in the relevant
regulation and clauses (4) and (5) Of the Regulation 3 will
now meet the situation. [280F-G]
&
ORIGINAL JURISDICTION: Writ Petition Nos. 9328,9333/82
& 4830/83
(Under Article 32 of the Constitution of India)
R.K. Garg, V.J. Francis, for the petitioners.
Shanti Bhushan, Miss A. Subhashini, A. Subba Rao for
the Respondents.
S.N. Andley, S.S. Jouhar, R.N. Poddar, K.M. Sharma,
Randhir Jain, J.D. Jain and Mrs. K. Kocher for the
Interveners.
The Judgment of the Court was delivered by
RANGANATH MISRA. J. These 12 applications under
Article 32 of the Constitution are by Assistants covered by
the Central Secretariat Service Rules, 1962 (’Rules’ for
short), and challenge is to the select list for the grade of
Section Officers for the years 1978, 1979 and 1980, and the
common seniority list dated April 26, 1979, as also the
provisional supplementary list of Assistants dated August
21,1980. They have further prayed that the select list and
seniority list be re-published on the basis of length of
continuous service in the grade of Assistants and promotion
to the grade of Section Officers be granted from the dates
when Assistants junior to them were promoted as Section
Officers.
The Rules framed under the proviso to Article 309 of
the Constitution came into force from October 1,1962. Under
the Rules, the Central Secretariat Service was constituted
and as per rule 3 there are four grades in the Service
classified as follows:
(i) Selection Grade (Deputy Secretary to the
Government of India or equivalent);
(ii) Grade I (Under Secretary to the Government of
India or equivalent);
(iii) Section Officers;
(iv) Assistants.
275
The first two grades are classified as Central Civil
Service, Grade ’A’, while the other two are known as the
Central Civil Service, Grade ’B’ Ministerial. Post in the
first three grades are gazetted while posts in the
Assistants’ Grade are non-gazetted. The Rules contemplate
that there shall be separate cadres in respect of Section
Officers’ grade and the Assistants’ grade and these shall be
constituted for each Ministry or office specified in col. 2
of the First Schedule. Under rule 4, a single point
gradation list in respect of officers of the Selection Grade
and Grade I for all the Ministries or offices specified in
col. 2 and for the offices specified against such Ministries
or offices in col. 3 of the Schedule is to be maintained.
The Rules contemplate direct recruitment as also promotion
in respect of certain grades.
According to the petitioners the quota rule had broken
down as direct recruitment had not been made in many years
and on account of such failure, fixation of seniority with
reference to the rotational method was not available to be
followed. The petitioners also contended that select lists
as contemplated by the Rules had not been framed for quite a
long period and in the absence of such a select list framed
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in time, select lists of 1978, 1979 and 1980 prepared
without following the criterion of length of service of
officers in the grade of Assistants was not only unfair and
arbitrary but worked out prejudicially to the petitioners.
The main grievance of the petitioners in short is that the
scheme for fixation of seniority and consequently the
provisions relating to promotion having not worked out as
contemplated, the manner of determination of seniority
should be usual rule of total length of service and action
taken otherwise should be struck down and seniority should
be directed to be redetermined on the basis of length of
service only. F
Respondent No. 1, Union of India, has challenged these
allegations by contending that the manner of fixation of
seniority is covered by statutory rules and the petitioners
are, therefore, not entitled to claim determination of
seniority on the basis of length of service; the plea of the
petitioners that there had been no direct recruitment for
several years is denied and it has been pleaded that direct
recruits have come into the service in all years except only
two, viz., 1966 and 1970. The quota rule has, therefore,
really not broken down as pleaded by the petitioners and the
rules having contemplated a scheme of direct recruitment and
promotion, quota and rota have to work together Therefore,
fixing seniority
276
with reference to the rotational method was not open to
challenge. The Rules have been in force for well over two
decades. Great care has been taken in making provision in
the Rules to safeguard the interests of the different groups
and greater care has also been taken by the Department of
Personnel in the Ministry of Home Affairs to give effect to
the Rules. Since the officers are drawn from different
Ministries for promotion and working out the scheme involves
a somewhat complicated process, as long as the policy under
the Rules has been given effect to, the working should not
be allowed to be attacked merely on account of a casual
failure to work up to mathematical precision.
Before we start examining the correctness of the rival
contentions advanced on either side, it is appropriate that
a detailed reference to the Rules is made in order to
ascertain the scheme.
’Cadre’ has been defined in rule 2, sub-rule (2) to
mean the group of posts in the grades of Section Officer and
Assistant in any of the Ministries or offices specified in
col. 2 of the First Schedule and any of the offices
specified against such Ministry or office in col. 3 of that
Schedule. ’Cadre Officer’ in rule 2(g) in relation to the
Section Officers’ grade or the Assistants’ grade means a
member Of the service of the Section Officers’ grade or
Assistants’ grade, as the case may be, and includes a
temporary officer approved for long term appointment to that
grade. ’Long term appointment’ means under rule 2(1)
appointment for an indefinite period as different from a
purely temporary or ad hoc appointment. Common Seniority
List’ has been defined in rule 2(hh) in relation to any
grade to mean the seniority list of officers in that grade
serving in all the cadres specified in the First Schedule as
on the appointed day any revised from time to time in
accordance with the regulations to be framed in that behalf
by the Central Government. ’Probationer’ has been defined in
clause (o) of rule 2 to mean a direct recruit appointed to a
grade on probation in or against a substantive vacancy, and
’select list’ under rule 2(q) is defined to mean the select
list prepared in accordance with the regulations made under
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rule 12(4) or under the regulations contained in the Fourth
Schedule. Rule 8 contemplates the initial constitution of
each cadre and provides that the permanent and temporary
officers of the Section Officers’ grade and the Assistants’
grade in each cadre on the appointed day shall be determined
by the Central Government in the Department of
277
Personnel & Administrative Reforms in the Ministry of Home
Affairs.
Rule 12 makes provision for recruitment to selection
grade and grade I. We are not concerned with this rule in
the present case as the dispute is raised by Assistants and
the promotional rank to which claim has been laid is that of
Section Officer. For them rule 13 is the relevant rule. Sub-
rules (1) to (5) relate to Section Officers while the
remaining sub-rules (6) to (10) relate to Assistants. At the
time when the Service was constituted sub-rule (1) read
thus:
"Subject to the provisions of sub-rule (3), for a
period of five years from the appointed day, 1/4 of the
substantive vacancies in the Section Officers’ grade in
any cadre and thereafter, 1/3 of the substantive
vacancies in that grade, shall be filled by direct
recruitment on the results of the competitive
examinations held by the Commission for this purpose
from time to time.. "
Sub-rule (I) of rule 13 as it now stands reads thus:
"1/6 of the substantive vacancies in the Section
Officers’ grade in any cadre shall be filled up by
direct recruitment on the results of the competitive
examinations held by the Commission for this purpose
from time to time. The remaining vacancies shall be
filled by the substantive appointment of persons
included in the select list for the Section Officers’
grade in that cadre. Such appointments shall be made in
the order of seniority in the select list except when
for reasons to be recorded in writing, a person is not
considered fit for such appointment in his turn."
It is thus clear that the proportion of direct recruits
has been reduced from the initial l/4th or 1/3rd to the
present 1/6th.
Sub-rule (2) of rule 13 prescribes: "Temporary
vacancies in the Section Officers grade in any cadre shall
be filled by the appointment of persons included or approved
for inclusion in the select list for the Section Officers’
grade in that cadre. Any vacancies remaining thereafter
shall be filled in equal proportion from among the (a)
officers of the Assistants’ grade who have rendered
278
not less than 8 years’ approved service in the grade and are
within the range of seniority on the basis of seniority
subject to the rejection of the unfit.. and (b) officers of
the Assistants’ grade in that cadre with the longest period
of continuous service in that grade on the basis of length
of service subject to the rejection of the unfit." Sub-rule
(5) prescribes the preparation of a select list of
Assistants for promotion to the Section Officers’ grade and
the manner of preparing and revising the select list has
been set out in the Fourth Schedule.
Sub rule (6) prescribes that 50% of the vacancies in
the Assistants’ grade in any cadre is to be filled by direct
recruitment on the results of the competitive examinations
to be conducted by the Commission from time to time and the
remaining vacancies are to be filled by substantive
appointment of persons included in the select list for the
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Assistants’ grade in that cadre. Such appointments are to be
made in the order of seniority in the select list except
when for reasons to be recorded in writing, a person is not
considered fit for appointment in his turn. When
difficulties were experienced in working out the rule, two
provisos were added to sub-rule (6), one with effect from
December 15, 1979. these were to the following effect:
"Provided further that substantive vacancies in any
cadre reserved for direct recruitment on the appointed
day against which no direct recruits have been
appointed may be filled by substantive appointments
made after the date of commencement of the Central
Secretariat Service (Third Amendment) Rules, 1970, of
persons included in the Select List for the Assistants’
grade in that Cadre.
Provided also that if sufficient number of candidates
are not available for filling up the vacancies in a
cadre in any year by direct recruitment as aforesaid,
the unfilled vacancies in the direct recruitment quota
in that cadre shall be filled by the substantive
appointment of persons included in the Select List for
the Assistants’ Grade in that cadre."
Sub-rule (6) (a) which was inserted along with the
latter proviso authorised: "Notwithstanding anything
contained in sub-rule (6), the substantive vacancies
reserved for direct recruitment as on 30th June 1979 on each
cadre against which no direct recruits have been appointed
till that date plus 50% of the number of such
279
substantive vacancies in the cadre may be filled by
substantive appointments made after the date of
commencement of Central Secretariat Service (Third
Amendment) Rules, 1979, of persons included in the select
list for the Assistants’ grade in that cadre." Under rule 15
every direct recruit to the grade of Assistant is Initially
to be appointed on probation for the period of two years
from the date of appointment and every person other than a
direct recruit when he is appointed would be on trial for a
period of two years also. Rule 16 makes provision for
confirmation of probationers subject to passing of
prescribed tests and satisfactory completion of probation.
Rule 18 prescribes seniority in the different grades as
on the appointed day. Sub-rule (1) indicates that relative
seniority shall be as already determined on that day and if
there had been no such determination the same has to be
determined by the Department of Personnel & Administrative
Reforms. Sub-rule (2) provides that all permanent officers
included in the initial constitution of a grade shall rank
senior to all persons substantively appointed to that grade
after the appointed day and all temporary officers included
in the initial constitution of a grade under rule 8 shall
rank senior to all temporary officers appointed to that
grade after the appointed day. Rule 18. sub-rule (3) makes
provision for the rule in the matter of fixation of inter se
seniority for the Assistants’ grade. Direct recruits are to
rank inter se in the order of merit in which they are placed
in the competitive examination on the result which
recruitment is effected. Recruits of an earlier examination
are to rank senior to those of a later examination. Persons
appointed substantively to the grade from the select list
for that grade p shall rank inter se according to the order
in which they are so appointed and the inter se seniority
between direct recruits and persons substantively appointed
to the grade for that grade shall be regulated in accordance
with the provision made in the Fourth Schedule.
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Regulation 3 in the Fourth Schedule deals with
seniority. Clause 3 of this regulation provides:
"Direct recruits to a Grade and persons substantively
appointed to the Grade from the Select List for the
Grade shall be assigned seniority inter se according to
the quotas of substantive vacancies in the Grade
reserved for direct
280
recruitment and the appointment of persons included in
the Select List. respectively,"
From December 1977, contemporaneously with the
insertion of the second proviso to rule 13(6) of the Rules,
the following was added as a proviso to clause 3 of
Regulation 3:
"Provided that persons appointed substantively in
accordance with the provisions of sub-rule (6) of rule
13, to the Grade from the Select List in any cadre in
any year, against direct recruitment vacancies for
which direct recruits are not available shall be placed
en bloc below the last direct recruit appointed in that
year irrespective of the quotas reserved for direct
recruits and persons included in the Select List."
In Course of the hearing counsel for the petitioners
referred to instances where a direct recruit coming into the
cadre several years after others coming into the cadre from
the Select List had been assigned seniority over such
promotees. This was explained by counsel for the respondents
to have been the outcome of giving effect to clause 3 of
Regulation 3 as it stood prior to December, 1977 without the
proviso. The instances relied upon were found to be events
prior to the introduction of the proviso. In the absence of
challenge to the Rules and the Regulations, resultant
situations flowing from compliance- of the same are not open
to attack. Occasion for similar grievance would not arise in
future as the proviso in the relevant regulation and clauses
(4) and (5) of the Regulation 3 will now meet the situation.
Neither in the writ petitions nor in arguments before
us any challenge was advanced against the vires of the
Rules. One of the known patterns of constituting public
service, particularly in the executive side, is to draw
officers both by promotion as also by direct recruitment.
The proportion is fixed depending upon the nature of the
service, the availability of suitable manpower and other
relevant considerations. The petitioners have, therefore,
rightly not challenged before us the scheme under which a
moiety of the substantive vacancies in the Assistants’ grade
is to be filled by direct recruitment and the other by
promotion through select lists.
The Rules have held the field for 22 years now. During
this period direct recruitment had not been made only in two
years
281
being 1966 and 1970. Though in the writ petitions of general
stand had been adopted that direct recruitment had not been
made in several years, after the counter affidavit was filed
and it was emphatically asserted that excepting in these two
years direct recruitment had been made in other years, there
has been no challenge to that assertion. We agree with the
contention that quota and rota have got to go hand in hand
and if the quota is not properly adhered to, the rota system
must fail. In fact, the scheme is such that it can operate
in an appropriate way only when recruitment is effected
through both the processes as envisaged.
As we have already pointed out, difficulty was
experienced in working out the process when the quota fixed
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by the Rules had not been adhered to for one reason or the
other and vacancies were being carried forward for being
filled up in future years. This situation necessitated
insertion of the first proviso to sub-rule (6) of rule 13 in
August 1970) and the other proviso in 1977 as also sub-rule
(6) (a) in 1979. The grievance voiced in these writ
petitions obviously relates to a period prior to the
modification of the scheme
The petitioners had inter alia, prayed for the relief
of striking down the select lists and for direction that the
select lists he reframed on the basis of the length of
continuous service in the grade of Assistants. In view of
what we have said regarding the claim of seniority on the
basis of length of continuous service, it is not at all
necessary to examine the validity of that contention and
give any direction regarding the select lists, particularly
because the claim relating to reconsideration of select
lists was grounded upon length of continuous service.
Nothing was also shown in course of arguments as to why the
select lists were bad. Tn fact, unless the Rules and
Regulations are successfully assailed, the select lists are
not at all disputable.
The field which these Rules cover is indeed very wide
one. Assistants in all the Ministries or offices specified
in the First Schedule are covered by the Rules. With a view
to maintaining the efficiency of the service and at the same
time to meet the requirements and exigencies of the service.
separate cadres have been formed in respect of Assistants
and Section Officers in the different Ministries and offices
attached to such Ministries. Notwithstanding the fact that
these cadres are different, the scheme makes provision for
pro-
282
motional avenue taking all of them into consideration.
Obviously, working it out keeping in view the interests of
so many employees in the different cadres is indeed a very
onerous and difficult task. This has, therefore, been
assigned to the Department of Personnel. Unless there is any
serious failure in implementing the Rules and grave
injustice is done to some individuals or a group of
officers, we do not think it would be proper to interfere
with the working of the scheme and dislocate the inter se
seniority of the officers in these grades. No mala fides has
been pleaded nor has any grave injustice been established in
the writ petitions. At the most a case of improper working
of the scheme with reference to some of the officers has
been alleged. Hairsplitting arguments, if accepted, might
indicate that some of the petitioners have not been promoted
to the grade of Section Officers as and when due. We are of
the view that if there has been substantial compliance in
implementing the scheme under the Rules, judicial
interference is not called for. In a vast country such as
ours, a strong and independent bureaucratic set up is
indispensable. At the same time it is equally necessary that
the service from top to bottom must be alive to the fact
that it is its obligation to maintain proper attitudes,
discipline and duty-oriented working. While it is the right
of every person in the Service set-up to expect just and
fair treatment in regard to his employment, frequent
litigation between him and the State involving countless
other co-employees in the Service in the battle is a
deviation from the right direction. It is true that very
often instances come to light where the grievance is genuine
and the treatment meted is unwarranted and uncalled for.
Government in a democratic polity runs on impersonal basis
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but on the cardinal code that every one shall perform his
duty. We may recall what this Court observed in Dr. G.
Marulasiddaiah v. Dr. T.G. Siddapparadhya & Ors.;
"The canker of litigiousness has spread even to a
sphere of life where discipline should check ambition
concerning personal preferment.A teacher is justified
in taking legal action when he feels that a stigma or
punishment is undeserved but he is expected to bear
with fortitude and reconcile himself to his lot
suppressing disappointment when he finds a co-worker
raised to a position which he himself aspired after."
(1) (1971) 1 S.C.R. 568.
283
There has been a phenomenal rise in service disputes in
the last three decades. It is time that serious attention is
devoted to discover the reason for it and take effective
steps to ensure curtailment thereof. Whether such
litigations come before courts or tribunals is of no
consequence here. Frequent litigations between the State and
its employees ultimately affect the efficiency of the
service and bring about indiscipline, lack of loyalty and an
attitude of indifference.
In the course of arguments reference was made to
certain decisions of this Court. In N.K. Chauhan & Ors. v.
State of Gujarat & Ors.,(l) this Court held that the quota
system does not necessitate the adoption of the rotational
rule in practical application and many ways of working out
quota prescribed can be devised of which rota is certainly
one. It was further held that while laying down a quota when
filling up vacancies in a cadre from more than one source,
it is open to Government, subject to tests under Article 16,
to choose ’a year’ or other period or vacancy by vacancy
basis, to work out the quota among the sources. But once the
Court is satisfied, examining the constitutionality of the
method proposed, that there is no invalidity, administrative
technology may have free play in choosing one or the other
of the familiar processes of implementing the quota rule.
This Court did indicate that as Judges we cannot strike down
a particular scheme because it is unpalatable to forensic
taste. This Court further pointed out that ordinarily
seniority is measured by length of continuous officiating
service. This, however, does not preclude a different
prescription, constitutionality tests being satisfied. When
the Court found that promotees had been appointed in excess
of their quota, the following direction was given:
"Promotees who have been fitted into vacancies beyond
their quota during the period B-the year being regarded
as the unit- must suffer survival as invalid appointees
acquiring new life when vacancies in their quota fall
to be filled up. To that extent they will step down,
rather be pushed down as against direct recruits who
were later but regularly appointed within their quota."
(1.) [1977] 1 S.C.R. 1037.
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The rationale of this decision is indeed very much
against the contentions of the petitioners.
Reference was also made to the case of S.B Patwardhan &
Ors. etc. v. State of Maharashtra & Ors. (1). The dispute
that fell for adjudication in that case was one of seniority
in the cadre of Deputy Engineers and grievance had been laid
that notwithstanding the length of continuous service, later
appointees had been shown as senior. Attention in the
decision was mainly confined to the terms of the provisions
of the Rules applicable to the State Engineering Service. In
the view we have taken of the matter this decision indeed
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does not help the petitioners.
Next is the case of Baleshwar Dass & Ors., etc. v.
State of U.P. & Ors.,(2) etc. This Court pointed out that
for the purposes of seniority appointment to the service in
a substantive capacity was necessary. But that again was
said with reference to Rule 23 of the U.P. Service of
Engineers (Junior and Senior Scales- Irrigation Branch)
Rules.
This Court in V.T. Khanzode & Ors. v. Reserve Bank of
India & Anr., (3)took not of the fact that " no scheme
governing service matter can be fool-proof and some section
or the other of employees is bound to feel aggrieved on the
score of its expectation being falsified or remaining to be
fulfilled. Arbitrariness, irrationality, perversity and mala
fides will of course render any scheme unconstitutional but
the fact that the scheme does not satisfy the expectations
of every employee is not evidence of these.’ ’
Next is the case of A. Janardhana v. Union of India &
Ors.(4) That was a case relating to dispute of inter se
seniority of direct recruits and promotees in the Military
Engineering Service. Seniority lists drawn up earlier on the
basis of length of service including continuous officiation
were subsequently altered to lists based on quota between
direct recruits and promotees leading to rota for
confirmation and this led to the dispute The Court found
that some of the officers had been promoted prior to the
enforcement of the Rules
(1) [1981] 1 S.C.R. 449.
(2) [1977] 3 S.C.R. 775.
(3) [1982] 3 S.C.R. 411.
(4) [1983] 2 S.C.R. 936.
285
in 1969. The Rules had no retrospective effect and,
therefore, seniority lists drawn up prior to the enforcement
of the Rules were not open to be revised and re-drawn up
after the Rules became operative The Court further found
that the quota rule had not been worked out and if
rotational confirmation was to be done, many of the
employees considered hitherto senior would be very badly
affected. Here again we must point out that this decision
has no application to the facts before us since on the
finding reached by us the quota rule was substantially
complied with.
The writ petitions must accordingly fail. We make no
order for costs.
M.L.A. Petitions dismissed
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