Full Judgment Text
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PETITIONER:
NARENDER CHADHA & ORS.
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT11/02/1986
BENCH:
VENKATARAMIAH, E.S. (J)
BENCH:
VENKATARAMIAH, E.S. (J)
REDDY, O. CHINNAPPA (J)
CITATION:
1986 AIR 638 1986 SCR (1) 211
1986 SCC (2) 157 1986 SCALE (1)154
CITATOR INFO :
D 1987 SC 424 (12,24)
R 1987 SC 716 (13)
RF 1987 SC1676 (21)
D 1989 SC 278 (20)
E 1990 SC1256 (26,32)
R 1990 SC1607 (13)
E&D 1991 SC 284 (1,24,25,30,31)
D 1991 SC1818 (6)
D 1992 SC1188 (4,5)
E 1992 SC1363 (1,4,TO,7,9,TO,13)
ACT:
Constitution of India, 1950 - Articles 14 and 16.
Indian Economic/Indian Statistical Service Rules, 1961.
Direct recruits and promotees - Promotees holding posts
in Grade IV of Service in deliberate breach of quota rules
continuously for 15 to 20 years on temporary/ad hoc basis
Fixation of inter se seniority - Whether to be placed lower
in seniority list to direct recruits entering service after
such promotees - Quota rule - Not maintained - Rules confer
relaxation power on Government - Whether relaxation of quota
rule to be assumed.
HEADNOTE:
The Indian Economic Service Rules, 1961 and the Indian
Statistical Service Rules, 1961 were notified on November 1,
1961. These Services were constituted with effect from that
date by encadering numerous posts carrying economic and
statistical functions in various ministries of the
Government of India. Both the Services have Grade I, Grade
II, Grade III and Grade IV posts and Officers of Grade I to
Grade IV are classified as Class-I Officers. The authorised
permanent strength of each of the Services is to be fixed by
the Controlling Authority, constituted under Rule 6, in
accordance with the Rules. Under Rule 7, the Union Public
Service Commission was required to constitute a Selection
Committee to determine the suitability of departmental
candidates for appointment to the different grades and to
prepare an order of preference for each grade for the
initial constitution of both the Services. On receipt of the
Committee’ 8 report, the Commission was required to forward
its recommendations to the Government. The departmental
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candidates who were not absorbed at the initial constitution
of the Service were given the opportunity to apply for
future vacancies. Future maintenance of the two Services is
governed by Rule 8.
212
After the initial constitution of the two Services was
completed it was found that a number of posts carrying
economic/statistical functions could not be considered for
inclusion in the officers’ Grades. Further as the process of
formation of the two Services was prolonged for a number of
years and the need for appointing more officers in various
Departments during that long period also arose gradually,
several posts carrying economic/statistical functions were
created. Although Rule 8 provided that not less than 75 per
cent of the vacancies in Grade IV should be filled up by
direct recruitment through an open competitive examination
to be held be the Union Public Service Commission in the
manner prescribed in Schedule II to the Rules and lt further
provided that not more than 25 per cent posts of the
vacancies in that Grade should be filled by selection from
among officers serving in the offices under the Government
in Economic/ Statistical posts recognized for that purpose
by the Controlling Authority, no direct recruitment we
resorted to till about the year 1968. In the meanwhile, a
large number of persons in the feeder posts were appointed
to the posts in Grade IV from time to time from the year
1962 onwards although the orders promoting them stated that
they had been promoted only temporarily. Undisputedly, all
those promotees have been holding those posts continuously
till now without being reverted to the feeder posts from
which they had been promoted. Some have been retried from
those posts.
Thus the prescribed quota of appointment from the two
different sources was not maintained right from the
commencement of the constitution of the Services. After
completion of the initial constitution of the two services
under Rule 7, Rule 7A was added and subsequently amended.
Rule 7A made special provision regarding certain
departmental candidates who were to be absorbed in the two
Services.
Between the years 1964 to 1984 in all there were 435
vacancies for direct recruitment in the Indian Economic
Service out of which only 342 posts were filled up by direct
recruitment. Out of 93 remaining unfilled posts most of them
were held all along by persons promoted from the feeder
posts. In the Indian Statistical Service as against a total
of 303 vacancies meant for direct recruits between the years
1964 to 1984 only 275 direct recruits were appointed. The
remaining
213
unfilled posts were held by the & departmental candidates.
It was alleged that many of the departmental candidates had
been allowed to hold posts including Grade IV of the two
Services purely on ad hoc and ex gratia basis.
Earlier certain persons holding posts in Grade IV of
these two services had filed Writ Petition under Article 32
seeking direction/order to the Union of India to confirm and
regularise the petitioners in the posts held by them as and
from the dates when they had become due for confirmation or
regularisation in accordance with the Indian Economic
Services Rules 1961 or the Indian Statistical Service Rules
1961 and to consider them for all future promotions when due
on the basis of such seniority. This Court on February 1
1984 directed the Union of India to fill up, within four
weeks, the vacancies available to the departmental
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candidates under Rule 8 (1)(a)(ii) with effect from the date
from which the petitioners become entitled to be promoted on
regular basis, that their seniority will be determined
according to Rules and that rotation system will not apply
under the existing Rules.
On May 1, 1984, after expiry of the extended time, the
respondent - Union of India filed two sets of seniority
lists in respect of the two services, namely, (i) lists
based on the principle of rotation, and (11) lists based on
Rule 9C of the Rules. Since the lists were to the
disadvantage of the departmental prouotees, the Court while
declining to endorse either of the two seniority lists
directed the respondent-Union to implement the order dated
February l, 1984 on or before 30th November, 1984. In the
meanwhile the petitioners filed a petition for initiating
contempt proceedings against the respondent-Union of India
which was resisted by the respondents Certain direct
recruits also intervened and wanted to be heard before
disposal of the contempt application. Opportunity was given
to all the parties to make their submissions.
Disposing of the petition,
^
HELD: 1. Having regard to the facts of the case and the
events that have followed the order passed by this Court on
February 1, 1984, no action for contempt against the Union
Government or any of its officers for not obeying the orders
of this Court would be taken. [221 B-C]
214
2. The Union Government is directed to treat all
persons who have been promoted to several posts in Grade (n
) in Indian Economic Service and Indian Statistical Service
contrary to the Rules till now as having been regularly
appointed to those posts in Grade (IV) under Rule 8(1) (a)
(ii) and assign them seniority in the cadre with effect from
the dates from which they are continuously officiating in
those posts. Even those promotees who have been selected in
1970, 1982 and 1984, shall be assigned seniority with effect
from the date on which they commenced to officiate
continuously in the posts prior to their selection. For
purposes of seniority the dates of their selection shall be
ignored. The direct recruits shall be given seniority with
effect from the date on which their names were recommended
by the Commission for appointment to such grade or posts as
provided in clause (a) of Rule 9-C. A seniority list of all
promotees and direct recruits shall be prepared on the above
basis treating the promotees as full members of the Service
with effect from the dates from which they are continuously
officiating in the posts. This direction shall be applicable
only to officers who have been promoted till now, which
means that rotation system will not be applicable under the
Rules, as they exist now. All appointments shall be made
hereafter in accordance with the Rules, and the seniority of
all the officers to be appointed hereafter shall be governed
by Rule 9-C. [237 D-H: 238 A]
3. If as a result of the preparation of the seniority
list as aforesaid any officer is likely to be reverted, such
officer shall not be reverted. He shall be continued in the
higher post which he is now holding by creating a
supernumerary post to accommodate him. Further promotion
shall be given to him when it becomes due as per the new
seniority list to be prepared. There shall be a review of
all the promotions made so far from Grade (IV) to higher
posts in the light of the new seniority list. [238 B-D]
P.S. Mahal & Ors. v. Union of India & Ors. [1984] 3
S.C.R. 847 followed.
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4. When an officer has worked for a long period for
nearly 15 to 20 years in a post and had never been reverted
it cannot be held that the officer’s continuous officiation
215
was a mere temporary or local or stop gap arrangement even
though the order of appointment may state so. In such
circumstances the entire period of officiation has to be
counted for seniority. Any other view would be arbitrary and
violative of Articles 14 and 16(1) because the temporary
service in the post in question is not for a short period
intended to meet some emergent or unforseen circumstances.
[236 C-E]
In the circumstances of the instant case, clause (b) of
rule 9-C of the Rules which deals with the question of
seniority of promotees becomes irrelevant as regards
promotees who have been holding the posts from a long time.
[236 E]
5. It is permissible for the Government to recruit
persons from different sources to constitute a service. It
is also open to it to prescribe a quota for each source.
Rules of recruitment framed on the above lines are perfectly
legitimate and quite consistent with Articles 14 and 16 of
the Constitution. When the Rules of recruitment prescribe
recruitment from different sources in accordance with the
specified quota the Government is bound to appoint persons
to the Service concerned in accordance with the Rules. me
seniority of persons recruited from different sources will
have to be regulated accordingly. [230 C-E]
In the instant case, the Government had made violent
departure from the Rules of recruitment by deliberately
allowing those who were appointed contrary to Rules to hold
the posts continuously over a period of long time. [230 E-F]
6. The petitioners were not promoted by following the
actual procedure prescribed under rule 8(1)(a)(ii) but the
fact remains that they have been working in posts included
in Grade IV from the date on which they were appointed to
these posts. The appointments are made in the name of the
President by the competent authority. They are being paid
all along the salary and allowances payable to incumbents of
such posts. They have not been asked to go back to the posts
from which they were promoted at any time since the dates of
their appointment. me orders of promotion issued in some
cases show that they are promoted in the direct line of
their promotion. It was expressly admitted that the
petitioners have been allowed to hold posts included in
Grade IV of the said
216
Services, though on an ad hoc basis. Therefore, it cannot be
said that the petitioners are not holding the posts in Grade
IV of the two Services. Neither the Government has issued
orders of reversion to their former posts nor has anybody so
far questioned the right of the petitioners to continue in
the posts which they are now holding. It would be unjust to
hold at this distance of time that the petitioners are not
holding the posts in Grade IV. However, it is not the case
that whenever a person is appointed in a post without
following the Rules prescribed for appointment to that post,
he should be treated as a person regularly appointed to that
post. Such a person may be reverted from that post. [231 B-
H; 232 A]
In the instant case, where persons have been allowed to
function in higher posts for 15 to 20 years with due
deliberation it would be certainly unjust to hold that they
have no sort of claim to such posts and could be reverted
unceremoniously or treated as persons not belonging to the
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Service at all, particularly where the Government is endowed
with the power to relax the Rules to avoid unjust results.
The Government has also not expressed its unwillingness to
continue them in the said posts. The other contesting
respondents have also not urged that the petitioners should
be sent out of the said posts. There is no impediment even
under the Rules to treat the petitioners and others who are
similarly situated as persons duly appointed to the posts in
Grade IV because of the enabling provision contained in Rule
16. [232 B-E]
7. If there is enormous departure from the Rules of
recruitment in making appointments over several years, it
should be presumed that the excess appointment by promotion
had been made in relaxation of the Rules when power to relax
the Rules is available. [233 C-D]
A.Janardhana v. Union of India & Ors. [1983] 2 S.C.R.
936; O.P. Singla & Anr. v. Union of India & Ors. [1985] 1
S.C.R. 351; G.S. Lamba & Ors. v. Union of India & Ors.
[1985] 3 S.C.R. 431; D.B. Nim, I.P.S. v. Union of India
[1967] 2 S.C.R. 323 followed.
S.B. Patwardhan & Ors. etc. etc. v. State of Maharastra
JUDGMENT:
217
State of Bihar & Ors. [1980] 3 S.C.R. 450; Baleshwar Das
Ors. etc. v. State of U.P. 7 Ors. etc. [1981] 1 S.C.R. 449;
P.S. Mahal & Ors. v. Union of India & Ors. [1984] 3 S.C.R.
847; Pran Krishna Goswami & Ors. v. State of West Bengal
Ors. [1985] Supp. S.C.C. 221; D.K. Mitra & Ors. v. Union of
India & Ors. [1985] Supp. S.C.C. 243 referred to. Karam Pal
Ors. etc. v. Union of India & Ors. [1985] 3 S.C.R. 271
distinguished.
8. By sticking to the quota rule as found in rule
8(1)(a), enormous prejudice would be caused to the
petitioners and others who are similarly situated, even
though their appointments have been made by deliberate
deviation from the rules. The just solution to it would be
to treat the petitioners as persons duly appointed to the
Services with effect from the date on which they were
promoted to the Grade IV posts. [235 G-H; 236 B]
&
ORIGINAL JURISDICTION: Civil Miscellaneous Petition No.
2604 of 1985.
IN
Writ Petition No. 1595 of 1979.
(Under Article 32 of the Constitution of India.)
Petitioner No. 1 in person.
P.P. Rao, Uma Dutta and Miss C.K. Suchitra for
Petitioner Nos. 2 to 25.
Govinda Mukhoty and P.K. Gupta for the Intervener.
R.K. Garg, R.K. Jain and Guptha Jain for the
Respondents.
F.S. Nariman, A.K. Ganguli, R.D. Agarwala and C.V.
Subba Rao for the Respondents. (Union of India)
The Judgment of the Court was delivered by
218
VENKATARAMIAH, J. The perennial dispute regarding
seniority between direct recruits and promotees which exists
in Almost all the departments of Government has not spared
the Indian Economic Service and the Indian Statistical
Service with which we are concerned in this case. This is
the second phase of the battle which is being waged in this
Court. Earlier certain persons who had been holding posts in
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Grade IV of these two Services had filed Writ Petition No.
1595 of 1979 under Article 32 of the Constitution of India
praying for a writ, direction or order in the nature of
mandamus directing the Union of India to confirm or
regularise the petitioners in the posts held by them as and
from the dates when they became due for confirmation or
regularisation in accordance with the Indian Economic
Service Rules, 1961 or the Indian Statistical Service Rules,
1961 and to consider them for all future promotions when due
on the basis of such seniority. The said petition was filed
in a representative capacity with the leave of the Court
under Order I Rule 8 C.P.C. A few officers who had been
recruited as direct recruits to the posts in Grade IV in the
said departments were impleaded as respondents and they were
sued in a representative capacity as representing all other
direct recruits who were likely to be affected by the
decision. After the above case was heard, the Court passed a
short order on February 1, 1984 which reads thus :
"We are not able to understand why the vacancies
available to the departmental candidates under
Rule 8(ii) of the Indian Economic and Indian
Statistical Services Rules, 1961, have not been
filled up on regular basis. We find that some of
the departmental candidates (petitioners) have
been holding the promotional posts on ad hoc basis
for several years. mere appears to be no
justification for keeping them ’ad hoc’ so long.
We, therefore, issue a Writ of Mandamus directing
the Union of India to fill up, within four weeks
from today, the vacancies available to the
departmental candidates under Rule 8(ii) with
effect from the date from which the petitioners
became entitled to be promoted on regular basis.
Their seniority will be determined according to
Rules. We wish to make it clear that there is no
question of any rotation system being applied
under the Rules, as they exist now. The
219
writ petition is disposed of in these terms. There
will be no order as to costs."
(Rule 8(ii) has to be read as Rule 8(1)(a)(ii))
The Union of India, as can be seen from the order set
out above, was directed to comply with the directions
contained therein within four weeks from the date of the
order. On the expiry of four weeks, stipulated by this
Court, the Union of India filed an application for extension
of time to comply with the directions contained therein
fully. Time was extended by the Court till April 30, 1984.
On May 1, 1984 the Union of India filed before the Court two
sets of seniority lists in respect of the above two Services
namely, lists based on the principle of rotation and lists
based on Rule 9-C of the Indian Economic Service/Indian
Statistical Service Rules. Since on a perusal of the said
lists it was found that the position of some of the
departmental promotees who had already put in nearly 15
years of service in Grade IV was worse than V the position
in which they were before the writ petition was filed and
were facing imminent threat of reversion to the feeder posts
from which they had been promoted several years ago, the
Court directed the petition to come up for hearing before
the Court on its re-opening after summer vacation and
directed that status quo should be maintained in the mean-
while. Then on July 24, 1984 the Court while declining to
endorse either of the two seniority lists directed the Union
of India to implement the order dated February 1, 1984 on or
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before 30th November, 1984. In the meanwhile the petitioners
filed Civil Miscellaneous Petition No. 2604 of 1985
complaining that the Union of India had failed to comply
with the order made by this Court and that action should be
taken for contempt against it. While opposing the
application for contempt, on behalf of the Union of India it
was stated in the course of the affidavit sworn by Shri P.L.
Sakarwal, Deputy Secretary, Department of Economic Affairs,
New Delhi thus :
"23. In view of the submissions made above this
Respondent would urge that the directions of the
Hon’ble Court dated 1.2.84 in the matter of (i)
filling the vacancies under Rule 8(ii) and (ii) to
fix the seniority according to Rules without the
application of rotation system, have been complied
with bona fide and in a good faith. Rule 8(ii) of
220
the IES Rules/ISS Rules provides for the quota for
the departmental promotees and also the manner in
which the Select List for promotion by a duly
constituted DPC presides over by a Member of UPSC
has to be drawn. All the vacancies available to
the departmental candidates under Rule 8(ii) up to
the end of 1983 have already been given to them by
issuance of Select Lists drawn from time to time.
Action is in process to prepare further Select
List in respect of the vacancies available to the
officers till the end of the year 1984. As regards
seniority, the Hon’ble Court had ordered to fix
the seniority according to the Rules and without
the application of the rotation system. The
revised seniority lists prepared by this
Respondent and finalised after inviting objections
etc. from the concerned officers have been framed
according to the Rules i.e. in terms of the
provisions of Rule 9-C of the IES Rules/ISS Rules
and without application of the rotation system.
This Respondent, would, therefore, urge with
respect ad all humility that he has complied with
the directions of the Hon’ble Court bona fide ant
in good faith. However, If there 18 any slip on
the part of this Respondent in carrying out the
directions of this Hon’ble Court of if the Hon’ble
Court considers that the orders should have been
executed in any other manner, this Respondent
would tender unconditional apology ant will be
duty bound to obey ant implement, such orders
directions as this Hon’ble Court may teem fit or
pleaset to issue in the circumstance of the case."
In the meanwhile certain direct recruits also
intervened in the course of the said petition ant requested
that they should be heart before any order was passed by the
Court on the contempt application. While the order passed by
the Court on February 1, 1984 did not require any
clarification at all, since the parties tried to place
different interpretation on lt, prayer was mate by the Union
Government as stated above seeking further clarifications in
the light of certain recent decisions rendered by this
Court, we gave opportunity to all the parties to make their
submissions once again. Availing
221
themselves of the opportunity given by the Court learned
counsel for the promotees and the direct recruits have
virtually reargued the matter. It should be stated here that
no specific stand was taken on this occasion by the Union
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Government except bringing to the notice of the Court the
relevant provisions of law. On its behalf it was submitted
very fairly by Shri F.S. Nariman, that there was no
intention on the part of the Government or any of its
officers to flout the order of the Court passed earlier and
that if the Court found that there has been any mistake in
the preparation of the lists of seniority, those lists would
be prepared afresh in the light of any direction that may be
given by the Court in the course of these proceedings.
Having regard to the facts of the case and the events that
have followed the order passed by this Court on February 1,
1984, we do not feel called upon to take any action for
contempts against the Union Government or any of its
officers for not obeying the orders of this Court. We have,
however, found it necessary to consider the matter again in
the light of the submissions made by the parties and issue
fresh directions in this case. We feel that a detailed order
is also called for in the circumstances of the case.
The Indian Economic Service Rules, 1961 and the Indian
Statistical Service Rules, 1961 (hereinafter referred to as
’the Rules’) which are more or less identical with regard to
the questions involved in this case were notified on
November 1, 1961 and these Services were constituted with
effect from that date by encadering numerous posts carrying
economic and statistical functions in the various ministries
of the Government of India. These Services were meant to
comprise a pool of officers having appropriate
qualifications for performing the aforesaid technical
functions involved in various posts. me strength of the
various grades of the Indian Economic Service at the initial
constitution of the Service, i.e., on November 1, 1961 was
Grade 1 - 15, Grade II - 15, Grade III - 95 and Grade IV -
199 - Total 324 posts. me strength of the various grades of
the Indian Statistical Service at the initial constitution
of the Service, i.e., on November 1, 1961 was Grade I - 8,
Grade II- 7, Grade III - 54 and Grade IV - 116 Total 185
posts.
The officers of Grade I to Grade IV are classified as
Class-I Officers. The authorised permanent strength of each
of
222
the Services is to be fixed by the Controlling Authority
with the guidance of the Ministry of Finance in accordance
with the provisions of the Rules. It is required to be based
on the following principles:
1) it shall be assumed that 80 per cent of the
total number of semi-permanent posts are likely to
be continued indefinitely in one form or another,
and shall be provided for in the permanent
strength; and
2) all the purely temporary posts and 20 per cent
of the semi-permanent posts shall be excluded for
purposes of determining the permanent strength.
The Ministry of Home Affiars (Department of Personnel
and Administrative Reforms) advised by a Board known as the
Indian Economic Statistical Service Board is designated as
the Controlling Authority under rule 6 of the Rules. Initial
constitution of both the Services was required to be done in
accordance with rule 7. & der that Rule the Union Public
Service Commission was required to constitute a Selection
Committee with a Chairman or a Member of the commission as
President, not more than two representatives of the partici-
pating Ministries and the Chief Economic Adviser in the
Ministry of Finance (Department of Economic Affairs) to
deter mine the suitability of departmental candidates for
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appointment to the different grades and to prepare an order
of preference for each grade for the initial constitution of
the Service. On receipt of the Committee’s report the
Commission was required to forward its recommendations to
the Government and such recommendations might include a
recommendation that a person considered suitable for
appointment to a grade might, if a sufficient number of
vacancies were not available in that grade, be appointed to
a lower grade. me departmental d i dates who were not
absorbed at the initial constitution of the Service were to
continue to work as on the date of the initial constitution
and were given the opportunity to apply (and getting
selected if they were found suitable) for future vacancies.
We are informed that the notifications regarding the initial
constitution of these two Services were issued by the middle
of February 1, 1964 with effect from February 15, 1964.
Future maintenance of these two Services is governed by
223
rule 8 of the Rules. Initially rule 8, which is relevant for
the purposes of this case read as follows :
"8.(1) Future maintenance of the Service - after
the initial constitution of the Service has been
completed by appointment of departmental
candidates or otherwise, vacancies shall be filled
as hereinafter provided.
(a) Grade IV - Assistant Director.
(i) Not less than 75 per cent of the vacancies in
this grade shall be filled by direct recruitment
through an open competitive examination to be held
by the Commission in the manner prescribed in
Schedule II. Provided that 25 per cent of the said
quota for direct recruitment may be set apart for
a maximum period of 5 years for absorption of
officers considered suitable for appointment at
the initial constitution of the Service but who
could not be so appointed in the absence of
vacancies.
(ii) Not more than 25 per cent of the vacancies in
this grade shall be filled by selection from among
officers serving in offices under the Government
in Economic posts recognised for this purpose by
the Controlling Authority who shall prepare a list
of such posts in consultation with the commission.
The Controlling Authority may, in consultation
with the Commission, add to or modify the list
from time to time. The selection will be made from
amongst those who have completed at least 4 years
of service in those posts on the basis of merit
with due regard to seniority by the Controlling
Authority on the advice of the
Commission.......... "
Rule 8(1)(a) now reads thus :-
"8.(1) Future maintenance of the service; after
the initial constitution of the service had been
completed by appointment of departmental
candidates or otherwise and after promotions in
accordance with sub-rule (2A) of Rule 7 have taken
place, vacancies shall be filled as hereinafter
provided.
224
(a) Grade IV - Assistant Director.
(i) Not less than 75 per cent of the vacancies in
this grade shall be filled by direct recruitment
through an open competitive examination to be held
by the Commission in the manner prescribed in
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Schedule II. Provided that 25 per cent of the said
quota for direct recruitment may be set apart for
a maximum period of 5 years for absorption of
officers considered suitable for appointment at
the initial constitution of the service but who
could not be so appointed in the absence of
vacancies.
(ii) Not more than 25 per cent of the vacancies in
this grade shall be filled by selection from among
officers serving in offices under the Government
in Economic posts recognised for this purpose by
the Controlling Authority who shall prepare a list
of such posts in consultation with the Commission.
The Controlling Authority may, in consultation
with the Commission, add to or modify the list
from time to time. The selection will be made from
amongst those who have completed at least 4 years
of service on a regular basis in these posts on
the basis of merit with due regard to seniority by
the Controlling Authority on the advice of the
Commission.
Provided that if any junior person in an office
under the Government is eligible and is considered
for selection for appointment against these
vacancies, all persons senior to him in that
office shall also be so considered notwithstanding
that they may not have rendered 4 years of service
on a regular basis in their posts."
After the initial constitution or the two Services was
completed it was found that a number of posts carrying
Economic/Statistical functions could not be considered for
inclusion in the officers’ Grades due either to
misunderstanding or to inadvertence. Further as the process
of formation of the Indian Economic Service and the Indian
Statistical Service was prolonged for number of years and
the need for appointing more officers in the said
Departments during that long period
225
also arose gradually several posts carrying
economic/statistical functions were created. Although rule 8
provided that not less than 75 per cent of the vacancies in
Grade IV should be filled up by direct recruitment through
an open competitive examination to be held by the Union
Public Service Commission in the manner prescribed in
Schedule II to the Rules and further provided that not more
than 25 per cent posts of the vacancies in that grade should
be filled by selection from among officers serving in The
offices under the Government in Economic/Statistical posts
recognised for that purpose by the Controlling Authority, no
direct recruitment was resorted to till about the year 1968.
In the meanwhile a large number of persons in the feeder
posts were appointed to the posts in Grade IV from time to
time from the year 1962 onwards although the orders
promoting them stated that they had been promoted only
temporarily. It is not disputed that all those promotees
have been holding those posts continuously till now without
being reverted to the feeder posts from which they had been
promoted. Some have retired from those posts on attaining
the age of superannuation.
We shall reproduce below one of the notifications
issued in connection with the promotion to the posts in
Grade IV of such officers, some of whom are the petitioners
in this petition. It reads thus :
"GOVERNMENT OF INDIA
PLANNING COMMISSION
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Yojana Bhawan, Parliament Street
New Delhi-1, the 20th/23rd November ’65
NOTIFICATION
No.F.8(10)/65-ADM.I: The President is pleased to
appoint the following Economic Investigators Grade I,
Planning Commission, as Research Officers in the Commission
in a temporary capacity with effect from the 6th November
1965 (forenoon), and until further order :-
Shri K.V. Vishwanathan
Shri S.N. Padru
Shri C.L. Kapur
226
Smt. K. Passi
Shri Narendra Chaddha
Shri R.N. Mokhey
Shri N. Srinivasan
Shri K. Suryanarayana
Shri P.N. Radhakrishnan
Shri B.R. Kharbanda
Shri Kamla Prasad
Shri M.M. Gupta
Shri S.P. Kumar
Sd/-
(N.S. Gidwani)
(Deputy Secretary to the Government of India)
.............................................
All these officers excepting Shri P.N. Radha-
Krishnan are either permanent or quasi-permanent
in the grade of Economic Investigators. Shri Radha
Krishnan is quasi Permanent in the grade of Senior
Computor. The promotion of all is in the direct
line.
...........................................
In another order of promotion issued while promoting
another officer by name Jagdish Chandra on November 21, 1966
it was mentioned that his promotion to the post of Research
Officer was in direct line of Economic Investigator Grade
I/II. It should be stated here that although rule 8 (1) (a)
provided that not less than 75 per cent of the vacancies in
Grade IV of the two Services should be filled up by direct
recruitment through an open competitive examination to be
held by the Commission in the manner prescribed in Schedule
II to the Rules and that not more than 25 per cent of the
vacancies in the Grade could be filled up by a selection
from among officers serving in offices under the Government
in Economic/Statistical posts recognised for this purpose by
the Controlling Authority, the prescribed quota of
appointment from the two different sources, referred to
above, was not maintained right from the commencement of the
Constitution of the Services. me initial constitution of the
two Services was completed under rule 7 of the Rules with
effect from February 15, 1964 as mentioned earlier.
Thereafter rule 7A was added.
227
That rule was added by a notification dated December 24,
1966 and it has been amended subsequently by a notification
dated February 12, 1972. Rule 7A made special provision
regarding certain departmental candidates who were to be
absorbed in the two Services. It provided that
notwithstanding anything contained in rule 8 of the Rules,
the Controlling Authority on the advice of the Board should
constitute a Selection Committee for the purpose of
appointing officers who were departmental candidates to the
Services in question. A departmental candidate who was not
selected for appointment for any grade in the Services could
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continue to hold the post which he was holding then and
might be considered by the Controlling Authority on the
advice of the Board for appointment to the service at the
subsequent stage or stages in consultation with the
Commission. It further provided that any departmental
candidate, referred to in sub-rule (1) of rule 7A who did
not on a selection to any Grade in the Service desire to be
absorbed tn the service might continue to hold the post held
by him immediately before the selection as if he had not
been selected. The validity of rule 7A was questioned by
some of the direct recruits, who were appointed in the year
1968 in the High Court of Delhi by a Writ Petition. We
understand that the said writ petition has been transferred
to the file of the Central Administrative Tribunal and the
said writ petition is still pending. We are not concerned
here with the merits of the contentions urged by the
contesting parties in those proceedings. We are concerned in
this case only with the question of seniority as between
direct recruits and promotees.
From the statements annexed to the counter-affidavit
filed by Shri V. Subramanian, Director in the Department of
Economic Affairs, it is seen that in the Indian Economic
Service there were 3 vacancies for direct recruits in the
year 1964, 18 in the year 1965, 80 in the year 1966 and 12
in the year 1967. Nobody was recruited directly to those
posts during those years. In the year 1968 there were 11
vacancies for direct recruits but 32 were recruited directly
during that year. In 1969 there were 6 vacancies for direct
recruits and 31 were recruited, in 1970 there were 33
vacancies for direct recruits, in 1971 there were 12
vacancies for direct recruits, in 1973 there were 25
vacancies for direct recruits, ’n 1974 there were 20
vacancies for direct recruits and in 1975 there were 11
vacancies for direct recruits. By the year 1984 in all
228
there were 435 vacancies for direct recruits out of which
only 342 posts were filled up by direct recruitment. In all
93 posts intended for direct recruits remained unfilled and
most of them were held all along by persons who had been
promoted from the feeder posts. The position in the Indian
Statistical Service was more or less the same. As against a
total of 303 vacancies meant for direct recruits between the
years 1964 and 1984 only 275 direct recruits were appointed.
In this department also the posts which remained unfilled
had been held by the persons who were departmental
candidates. It is alleged in the counter-affidavit filed on
behalf of the Union of India of which the deponent is Shri
P.G. Lele, Deputy Secretary in the Department of Personnel
and Administrative Reforms that many of the departmental
candidates had been allowed to hold posts including in Grade
IV of the aforesaid Services purely on ad hoc and ex gratia
basis. The relevant part of the counter-affidavit is to be
found in paragraphs 21 to 24 thereof. It is unfortunate that
even though the promotees have been discharging their duties
to the best of their ability and receiving salary and
allowances from the Government for the services rendered by
them, it is alleged in the course of the said counter-
affidavit that what was being paid to them was by way of
grace. This statement adds insult to injury. If the
Government felt that they were not competent to discharge
their duties and they had not been appointed permanently to
the posts held by them, it was open to it to revert them to
their posts from which they had been promoted leaving it
open to them to question the orders of reversion in Court.
The Government was in need of their services and the
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petitioners have been holding these posts for nearly 15 to
20 years. It is not fair to say at this distance of time
that the Government was only keeping them in their posts as
a matter of grace. Be that as it may, it is seen that the
Departmental Promotion Committee met only thrice between
1965 and 1584, i.e. 1970, 1972 and 1984 although under te
rules and instructions issued by the Central Government on
the advice of the Union Public Service Commission, the
Departmental Promotion Committee had to meet annually. When
the Departmental Promotion Committee met in the year 1970,
it prepared a select list consisting of 33 names to fill 33
vacancies only in Grade IV from amongst those who had
already been promoted to Grade IV temporarily and at that
time only officers who had completed four years of regular
service in the feeder posts as
229
on December 31, 1966 were considered although the
Departmental Promotion Committee was meeting in the year
1970. If it had taken into consideration the service put in
by the departmental candidates till the date on which it
took up their cases for consideration for promotion many
others who had been promoted on a temporary basis to Grade
IV would have become eligible for consideration. By omitting
to take the cases of those persons into consideration on the
ground that they had not completed four years of regular
service in the feeder posts as on December 31, 1966 the
Departmental Promotion Committee violated Articles 14 and
16(1) of the Constitution of India. It is further seen that
the Departmental Promotion Committee made its
recommendations on the basis of the records of service and
seniority of each of the departmental candidate. It is not
known whether any of them were found to be unfit on the
basis of their record of service only. It is, however, seen
that the select list contained only 33 names because the
Departmental Promotion Committee felt that they were the
only vacancies for which it could make recommendations under
rule 8(1)(a)(ii) of the Rules. If it had made
recommendations to the Government in respect of all the
vacancies which were available then, perhaps, the names of
some others who were left out would have been included in
the select list. Then after an interval of 12 years the
Departmental Promotion Committee met in the year 1982. There
again the same procedure was followed and the next meeting
of the Departmental Promotion Committee, as already stated,
was in 1984. For no fault of the petitioners and the
officers similarly situated their cases for promotion were
not considered every year and even those who have been found
fit by the Departmental Promotion Committee for promotion
had to wait for nearly 15 years to get into the ’regular’
service through a select list prepared by the Departmental
Promotion Committee.
In, compliance with our direction the Government has
produced before the Court two lists showing the names of
officers who were appointed to Grade IV posts of the Indian
Economic/Statistical Service either regularly or on ad hoc
basis arranged according to the dates from which they have
been officiating in these posts continuously.
large number of decisions were cited at the Bar by the
learned counsel for the parties. Some of them are S.B.
230
Patwarthana & Ors. etc. etc. v. State of Maharashtra &
Ors. [1977]-3 S.C.R. 775, Rajendra Narain Singh & Ors. v.
State of Bihar & Ors. [1980] 3 S.C.R. 450, Baleshwar Dass &
Ors. etc. v. State of U.P. & Ors. etc. [1981] 1 S.C.R. 449,
A. Janardhana v. Union of India & Ors. [1983] 2 S.C.R. 936,
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P.S. Mahal & Ors. v. Union of India & Ors. [1984] 3 S.C.R.
847, O.P. Singla & Anr. v. Union of India & Ors. [1985] 1
S.C.R. 351, Karam Pal & Ors. etc. v. Union of India & Ors.
[1985] 3 S.C.R. 271, G.S. Lamba & Ors. v. Union of India &
Ors. [1985] 3 S.C.R. 431, Pran Krishoa Goswami & Ors. v.
State of West Bengal & Ors. [1985] Supp. S.C.C. 221 and D.K.
Mitra & Ors. v. Union of India & Ors. [1985] Supp. S.C.C.
243. We have carefully considered all the decisions cited
before us.
It is now well-settled that it is permissible for the
Government to recruit persons from different sources to
constitute a service. It is also open to it to prescribe a
quota for each source. Rules of recruitment framed on the
above lines are perfectly legitimate and quite consistent
with Articles 14 and 16 of the Constitution. It is also true
that when the Rules of recruitment prescribe recruitment
from different Services in accordance with the specified
quota the Government is bound to appoint persons to the
Service concern ed in accordance with the said Rules. The
seniority of persons recruited from different sources will
have to be regulated accordingly. So far there can be no
controversy. But we are faced in this case with the problem
of resolving conflicts which have arisen on account of a
violent departure made by the Government from the Rules of
recruitment by allowing those who were appointed contrary to
the Rules to hold the posts continuously over a long period
of time. The question is whether after such a long period it
is open to the Government to place them in seniority at a
place lower than the place held by persons who were directly
recruited after they had been promoted, and whether it would
not violate Articles 14 and 16 of the Constitution if the
Government is allowed to do so. Promotions of officers have
been made in this case deliberately and in vacancies which
have lasted for a long time. A letter dated August 11, 1978
written by Shri S.D. Patil, Minister of State for Home
Affairs, Personnel Department to Shri Ganga Bhakt Singh,
Member of Parliament substantiates the conclusion. The
relevant part of the letter reads :
"Government resorted to making ad-hoc appointments
as it was separately considering proposals to re-
231
Organise Grade IV of the two Services. Pending
such reorganisation Govt. has taken a deliberate
decision to restrict direct recruitment for the
present. It is, therefore not correct to say that
ad-hoc appointments have been made due to
nonavailability of direct recruits. I may add that
but for his deliberate decision, most of the
officers holding ad-hoc posts in Grade IV would
have continued to stagnate in the lower posts of
Investigators."
At one stage it was argued before us on behalf of some
of the respondents that the petitioners who have not been
appointed in accordance with rule 8(1)(a)(ii) could not be
treated as members of the Indian Economic Service or of the
Indian Statistical Service at all and hence there was no
question of determining the question to seniority as between
the petitioners and the direct recruits. This argument has
got to be rejected. It is true that the petitioners were not
promoted ay following the actual procedure prescribed under
rule 8(1)(a)(ii) but the fact remains that they have been
working in posts included in Grade IV from the date of which
they were appointed to these posts. The appointments are
made in the name of the President by the competent
authority. They have been continuously holding these posts.
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They are being paid all along the salary and allowances
payable to incumbents of such posts. They have not been
asked to go back to the posts from which they were promoted
at any time since the dates of their appointment. The orders
of promotion issued in some cases show that they are
promoted in the direct line of their promotion. It is
expressly admitted that the petitioners have been allowed to
hold posts included in Grade IV of the aforesaid services,
though on an ad hoc basis. (See Para 21 of the counter-
affidavit filed by Shri P.G. Lele, Deputy Secretary,
Department of Personnel and Administrative Reforms). It is,
therefore, idle to contend that the petitioners are not
holding the posts in Grade IV of the two Services in
question. It is significant that neither the Government has
issued orders of reversion to their former posts nor has
anybody so far questioned the right of the petitioners to
continue in the posts which they are now holding. It would
be unjust to hold at this distance of time that on the facts
and in the circumstances of this case the petitioners are
not holding the posts
232
in Grade IV. The above contention is therefore without sub
stance. But we, however, make it clear that it is not our
view that whenever a person is appointed in a post without
following the Rules prescribed for appointment to that post,
he should be treated as a person regularly appointed to that
post. Such a person may be reverted from that post. But in a
case of the kind before us where persons have been allowed
to function in higher posts for 15 to 20 years with due
deliberation it would be certainly unjust to hold that they
have no sort of claim to such posts and could be reverted
unceremoniously or treated as persons not belonging to the
Service at all, particularly where the Government is endowed
with the power to relax the Rules to avoid unjust results.
In the instant case the Government has also not expressed
its unwillingness to continue them in the said posts. m e
other contesting respondents have also not urged that the
petitioners should be sent out of the said posts. m e only
question agitated before us relates to the seniority as
between the petitioners and the direct recruits and such a
question can arise only where there is no dispute regarding
regarding the entry of the officers concerned into the same
Grade. In the instant case there is no impediment even under
the Rules to treat these petitioners and others who are
similarly situated as persons duly appointed to the posts in
Grade IV because of the enabling provision contained in the
rule 16 thereof. Rule 16 as it stood at the relevant time
read as follows :
"16. m e Government may relex the provisions of
these rules to such extent as may be necessary to
ensure satisfactory working or remove ln-equitable
results.
" Now rule 16 reads thus :
"16. Powers to relex: me Government may in
consultation with the Commission and for reasons
to be recorded in writing relex any of the
provisions of these rules with respect to any
class or category of persons or posts and no such
relaxation shall be given so as to have
retrospective effect.
" G.S. Lamba’s case (supra) may be carefully considered
at this stage. In that case this Court was concerned with
the Indian Foreign Service which was governed by the Indian
Foreign Service, Branch ’B’ (Recruitment, Cadres, Seniority
and Promotion) Rules, 1964. The said rules provided for
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recruitment to the said Service from three different
Services,
233
(i) direct recruitment by competitive examination, (ii)
substantive appointment of persons included in the select
list promoted on the basis of a limited competitive
examination and (iii) promotion on the basis of seniority.
One of the Rules provided that the recruitment should be
made from the above sources on the following basis: (i)
1/6th of the substantive vacancies to be filled in by direct
recruitment, (ii) 33, 1/3% of the remaining 5/6 of the
vacancies to be filled on the basis of results of limited
competitive examinations and (iii) the remaining vacancies
to be filled in by promotion on the basis of seniority. The
Court found that the direct recruitment had rot been made
for years, limited competitive examination had also not been
held for years and promotions from the select list had been
made in excess of the quota. It found that there was
enormous departure from the rules of recruitment in making
appointments over several years. The Court was of the view
that the situation in this case was similar to the situation
in two other earlier cases of this Court in A. Janarthana’s
case (supra) and O.P. Singla & Anr.. (supra). The Court felt
that in the circumstances it should be presumed that the
excess appointment by promotion had been made in relaxation
of the Rules since there was power to relax the Rules
similar to the power under rule 16 in the Rules with which
we are concerned here. Justifying the above view the court
observed at pages 458-459 thus :
"It was however contended that it is not
permissible to infer that promotions in excess of
quota were given by relaxing the quota rule
because the posts in Integrated Grade II and III
were within the purview of the Union Public
Service Commission and the proviso to Rule 29(a)
mandates that power to relax is hedged in with a
condition that it can be done after consultation
with the Commission, and there is nothing to show
that the Commission was ever consulted.
Undoubtedly, the proviso to Ru e 29(a) requires
that the controlling authority cannot relax any of
the provisions of the rules in respect of posts
which are within the purview of the Union Public
Service Commission unless after consultation with
the Commission. It was submitted that nothing is
placed on the record by the petitioners to show
that power to relax the quota
234
rule was exercised after consultation with the
Union Public Service Commission. Assuming that
there was no consultation, would the exercise of
power to relax be vitiated and the appointments
made in relaxation of the mandatory quota rule
would be ab initio invalid. Commencing from the
decision of the Privy Council in Montreal Street
Railway Company v. Normandin AIR 1917 P.C. 142 it
is well-settled that ’when the provisions of a
statute relate to the performance of a public duty
and the case is such that to hold null and void
acts done in neglect of this duty would work
general inconvenience or injustice to persons who
have not control over those entrusted with the
duty and that at the same time would not promote
the main object of the Legislature, it has been
the practice to hold such provisions to be
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directory only, the neglect of them, though
punishable, not affecting the validity o the acts
done’. The view was expressed in the context of
the failure to revise list of Jurors by the
Sheriff according to the revised statues of Quebec
and conviction was challenged on the ground of
mistrial held by selecting Jurors from unrevised
lists. The challenge failed. Coming home in State
of U.P. v. Manbodan Lal Srivastava, [1958] S.C.R.
533 a Constitution Bench of this Court
specifically held that where consultation with the
Public Service Commission is provided as required
by Art. 320(3) (c) of the Constitution such
provisions is not mandatory and they do not confer
any rights on public servants so that the absence
of consultation or irregularity In consultation
does not afford him a cause of action in a court
of law. There are number of subsequent decisions
to which our attention was called reiterating the
same principle. Therefore assuming there was
failure to consult the Union Public Service
Commission before exercising the power to relax
the mandatory quota rule and further assuming that
the posts in Integrated Grade IT and III were
within the purview of the Union Public Service
Commission and accepting for the time being that
the Commission was not
235
consulted before the power to relax the rule was
exercised yet the action taken would not be
vitiated nor would it furnish any help to Union of
India which itself cannot take any advantage of
its failure to consult the Commission. Therefore
it can be safely stated that the enormous
departure from the quota rule year to year permits
an inference that the departure was in exercise of
the power of relaxing the quota rule conferred on
the controlling authority. Once there is power to
relax the mandatory quota rule, the appointments
made in excess of the quota from any given source
would not be illegal or invalid but would be valid
and legal as held by this Court in N.K. Chauhan
and Ors. v. State of Gujarat, [1977] 1 S.C.R.
1037. Therefore the promotion of the promotees was
regular and legal both on account of the fact it
was made to meet the exigencies of service in
relaxation of the mandatory quota rule and to
substantive vacancies in service.
The Court ultimately quashed the seniority list and
directed the preparation of seniority list on the basis of
length of continuous officiation in the cadre. The facts in
this case being almost identical there is no reason why the
view express in G.S. Lamba’s case (supra) should not be
adopted here also.
The continuance of these petitioners may be justified
on the basis of the above quoted rule 16 onthe assumption
that the Government had relaxed the Rules and appointed them
to the posts in question to meet the administrative
requirements.
The enormity of the prejudice that is likely to be
caused to the petitioners and others who were similarly
situated can be demonstrated by setting out the effect of
sticking to the quota rule as found in rule 8(1)(a) even
though there has been a deliberate deviation from it. The
result of applying the quota rule would be as follows:
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Petitioner No.1 who was promoted to Grade 17 on November 6,
1965 would be junior to a direct recruit of 1974 batch.
Petitioner No.3 who was promoted to Grade IV on March 22,
1966 would become junior to a direct recruit of 1979 batch.
Petitioner No.6 who was promoted to
236
Grade IV post in July 1, 1966 would become junior to direct
recruits of 1982 batch. Petitioner No. 10 who was promoted
to Grade IV on May 18, 1968 would become junior to direct
recruits of 1982 batch. Petitioners Nos. 16 to 18 and 21 to
25 would continue to be treated as ad hoc appointees and
will be junior to every body appointed till now into the
service as they cannot be fitted any whf e even though they
have put in 9 to 15 years of service in Grade IV. These
startling results ought to shock anybody’s conscience. The
only just solution to this problem is to treat the
petitioners as persons duly appointed to the Service with
effect from the day on which they were promoted to the Grade
IV posts.
As observed in D.R. Nim, I.P.S. v. Union of India
[1967] 2 S.C.R. 325 when an officer has worked for a long
period as in this case for nearly fifteen to twenty years in
a post and had never been reverted it cannot be held that
the officer’s continuous officiation was a mere temporary or
local or stop gap arrangement even though the order of
appointment may state so. In such circumstances the entire
period of officiation has to be counted for seniority. Any
other view would be arbitrary and violative of Articles 14
and 16(1) of the Constitution because the temporary service
in the post in question is not for a short period intended
to meet some emergent or unforeseen circumstances. Clause
(b) of rule 9C of the Rules which deals with the question of
seniority of promotees becomes irrelevant in the
circumstances of this case as regards the promotees who have
been holding the posts from a long time as stated above.
The decision in A. Janardhana’s case (supra) and the
decision in O.P. Singla’s case (supra) strongly support the
above view. It is necessary to refer to them in great detail
since in G.S. Lamba’s case (supra) the effect of the said
decisions is set out very clearly.
The decision in Karam Pal’s case (supra) is not of much
assistance to the direct recruits. In that decision there
was a specific finding that except for a period o’ two years
i.e. in 1966 and 1970, direct recruitment had been made in
accordance with the Scheme governing recruitment to the
Central Secretariat Service and that there was substantial
compliance with the rules of recruitment governing that
Service. The
237
Court observed that in the absence of serious failure in
implementing the relevant rules there was no ground to
interfere with the inter se seniority of the officers in the
Grades concerned. Hence that decision is distinguishable on
facts from the present case.
We are aware that the view we are taking may upset the
inter se seniority between those promotees who were included
in the Select List of 1970, 1982 and 1984 and those who were
included later on or who have not been included at all till
now. The existence of this possibility should not deter us
from adopting a uniform rule in the case of all promotees
and direct recruits to adjust the equities amongst them as
regards their relative seniority in the light of the violent
departure made by the Government both as regards direct
recruitments and promotions which lt had to make every year
under the Rules. The prejudice which the promotees included
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in the Select Lists might suffer is marginal and has to be
ignored.
Having given our anxious consideration to the
submissions made on behalf of the parties and the peculiar
facts present in this case we feel that the appropriate
order that should be passed in this case is to direct the
Union Government to treat all persons who are stated to have
been promoted in this case to several posts in Grade IV in
each of the two Services contrary to the Rules till now as
having been regularly appointed to the said posts in Grade
IV under rule 8(1)(a)(ii) and assign them seniority in the
cadre with effect from the dates from which they are
continuously officiating in the said posts. Even those
promotees who have been selected in 1970, 1982 and 1984
shall be assigned seniority with effect from the date on
which they commenced to officiate continuously in the posts
prior to their selection. For purposes of seniority the
dates of their selection shall be ignored. The direct
recruits shall be given seniority with effect from the date
on which their names were recommended by the Commission for
appointment to such grade or post as provided in clause (a)
of Rule 9-C of the Rules. A seniority list of all the
promotees and the direct recruits shall be prepared on the
above basis treating the promotees as full members of the
Service with effect from the dates from which they are
continuously officiating in the posts. This direction shall
be applicable only to officers who have been promoted till
now. This is the meaning of the direction given by the Court
on February 1, 1984 which stated,
238
’we wish to make it clear that there is no question of any
rotation system being applied under the Rules, as they exist
now.’ All appointments shall be made hereafter in accordance
with the Rules and the seniority of all officers to be
appointed hereafter shall be governed by rule 9-C of the
Rules.
We are informed that some of the promotees and direct
recruits who are governed by this decision have been
promoted to higher grades. If as a result of the preparation
of the seniority list in accordance with the decision and
the review of the promotions made to higher grades any of
them is likely to be reverted such officer shall not be
reverted. He shall be continued in the higher post which he
is now holding by creating a supernumerary post, if
necessary to accommodate him. His further promotion shall
however be given to him when it becomes due as per the new
seniority list to be prepared pursuant to this decision.
There shall, however, be a review of all promotions made so
far from Grade IV to higher posts in the light of the new
seniority list. If any officer is found entitled to be so
promoted to a higher grade he shall be given such promotion
when he would have been promoted in accordance with the new
seniority list and he shall be given all consequential
financial benefits flowing therefrom. Such review of
promotions shall be completed within three months and the
consequential financial benefits shall be paid within three
months thereafter. In giving these directions we have
followed more or less the directions given in P.S. Mahal &
Ors. V. Union of India & Ors. (supra).
We direct that the above directions shall be complied
with within the period indicated above.
The petition is accordingly disposed of.
A. P. J.
239
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