Full Judgment Text
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PETITIONER:
G.S. LAMBA & ORS.
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT22/03/1985
BENCH:
DESAI, D.A.
BENCH:
DESAI, D.A.
KHALID, V. (J)
CITATION:
1985 AIR 1019 1985 SCR (3) 431
1985 SCC (2) 604 1985 SCALE (1)563
CITATOR INFO :
E&R 1985 SC1605 (16)
R 1986 SC 638 (12,15,16,20)
F 1987 SC 424 (24)
F 1987 SC 716 (13)
RF 1987 SC2359 (17,18)
D 1988 SC 535 (24)
APL 1989 SC 278 (19)
F 1990 SC1256 (22,32)
ACT:
Constitution of India, 1950 Articles 14 and 16
Service-Constitution of-Recruitment from more then one
source and quota prescribed for each source-Quota rule of
recruitment inter linked with rota rule of seniority-
Deviation and departure in implementation of service rule-
Interference whether artises.
Indian Foreign Service, Branch ’B’ (Recruitment, Cadre,
Seniority and Promotion) Rules 1964, Rules 13,21 (4) and 25
(i) (ii) & 2F and 29(a) Promotees and direct recruits-
Fixation of seniorty-Promotees promoted to substantive
vacancies on temporary basis-Continuous officiation whether
confers advantage of seniority over later recruits.
Power of relaxation of statutory service rules-Failure
to record reasons-Whether quota fixed for direct recruitment
can be relaxed.
HEADNOTE:
The Indian Foreign Service Branch ’B’ was constitued in
1956. The statutory rules Indian Foreign Service Branch
(Recruitment, Cadre, Seniority and Promotion) Rules, 1964
came into force from May 6, 1964. Commencing from the advent
of the Rules, recruitment from three sources were made (i)
direct recruitment on the result of a competitive
examination held by the Union Public Service Commission,
(ii) substantive appointment of persons included in the
selective list promoted on the basis of a limited
competitive examination held by the U.P.S.C. and (iii)
Promotion on the basis of seniority.
Rule 13 provided for recruitment to posts in the
integrated Grades II and III of the General cadre, and that
temporary vacancies shall be filled by appointment of
persons included in the select list. Rule 21 laid down a
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general provision for fixing of seniority, while sub-rule
(4) thereof, provided that persons promoted or recruited on
the basis of an earlier selection or recruitment, shall be
senior to those promoted or recruited on the basis of an
earlier
432
selection or recruitment, shall be senior to those promoted
or recruited on the basis of a subsequent selection or
recruitment. Rule 22 to 24 provided for seniority inter-se
of direct recruits, and seniority inter-se of officers
promoted to a grade on the recommendations of a departmental
promotion committee. Rule 25 provided for seniority inter-se
of the officers appointed to a grade from different sources.
By a notification dated February 12, 1975, Rule 13 was
amended to provide that recruitment to the three different
sources of integrated Grades II and III to be: (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 the
limited competitive examination, and (iii) the remaining
vacancies to be filled in by promotion on the basis of
seniority.
The petitioners in the Writ Petitions were selected by
the Union Public Service Commission according to the merits
obtained at the examination of Assistants conducted for the
purpose for appointment to the post, and allocated to the
Ministry of External Affairs. After the initial constitution
of the service in 1956, they were offered an option whether
they would like to join the I.F.S. Branch ’B’ in grade IV.
They opted and were inducted into the service Later they
were promoted between 1976 and 1979 from grade IV to the
integrated grades II and III . The Government of India
published a seniority list of the integrated grades II and
III as on June 25, 1979 and before objections taken by the
petitioners to the seniority list were dealt with, another
seniority list was published on June 30 1983.
The petitioners assailed the aforesaid seniority lists
as violative of the constitutionally guaranteed equality of
opportunity in the matter of public service in as much as
direct recruits who came into the service long after the
departmental promotees were regularly promoted have been
assigned seniority over the earlier promoted departmental
promotees. It was further contended, that the seniority list
of June 30, 1983 was objectionable as it leaves blank spaces
for future recruits either as direct recruits or by limited
departmental examination and who are yet to come into the
service to be placed over promotees like the petitioners who
were already in service for a long time. The seniority lists
having been drawn up on the principles of quota-rota and on
the facts of the case and the relevant rules were violative
of Articles 14 and 16.
The writ petitions were contested by the Central
Governments contending that the seniority lists were drawn
up in accordance with the principles governing seniority in
the grade as per Rule 25, and that were recruitment to a
service was from more than one source and each source was
assigned a quota of vacancies, the seniority was to be
determined according to rota keeping in view the available
vacancies to each source While departmental promotion is
made after the Departmental Promotion Committee makes
recommendations recruitment through examination is time
consuming there is a time gap between publication of results
and joining of candidates and it is therefore not
practically possible to strictly adhere to the quota in any
particular year. The Administration
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433
Overcame this difficulty by rotation of vacancies ensuring
that over a period of ; time the required quota was fully
met. Blank spaces were left in the seniority list for giving
seniority to persons who have still not joined service and
are likely to join at an uncertain date. This process would
not push down the seniority of the petitioners as they would
occupy the same serial No. in the seniority list.
When the Writ Petitions were being heard, Respondent
No. 26 appeared and contested the claim of the petitioners
contending that all Assistants in Grade IV who put in the
required number of years of service were eligible for
participating in the limited departmental examination,
promotions based on the result of such an examination would
therefore not be violative of Art. 14 Delay in holding of
the examination cannot work to the disadvantage of those who
had taken the examination and qualified for promotion and
therefore they should be accommodated in the vacancies which
had come into existence and where available for the quota
from the date the vacancies came into existence. The two
seniority lists were consequently valid and in consonance
with the statutory rules.
Allowing the Writ Petitions,
^
HELD: (1) The impugned seniority lists challenged by
the petitioners have been drawn up in violation of the
provisions of Arts. 14 and 16 of the Constitution and
therefore they are quashed. The first respondent is directed
to draw up fresh seniority list. All promotions granted
since the filing of the petitions must be readjusted. [460B-
C]
In the instant case, direct recruitment had not been
made for years. Limited competitive examination had also not
been held for years. Promotions from the select list had
been presumably in excess of the quota but the promotees
were appointed to substantive vacancies in the service and
had been holding the posts as in the case of the petitioners
for over 6 to 8 years. The promotions were not styled as
temporary, adhoc or stop gap. The impugned seniority lists
were drawn up by rotating vacancies for each source, and if
no recruitment was made from that source in a given year,
the place in the list available to that source was kept open
and a later recruit at any distance of time from that source
would be assigned that place over persons who were already
recruited from other sources and would be working in
substantive vacancies. The direct recruit thus scores a
march over a promotee. The seniority list is consequently
violative of Articles 14 and 16 and therefore deserves to be
quashed. [453E; C-D]
(2) Once the promotees were promoted regularly to
substantive vacancies even if temporary unless there was a
chance of their demotion to the lower cadre, there
continuous officiation confers on them an advantage of being
senior to the later recruits under Rule 21 (4). If by the
enormous departure or by the power to relax, the quota rule
was not adhered to, the rota rule
434
for inter-se seniority as prescribed in Rule 25(i)(ii)
cannot be given effect, In the absence of any other valid
principle of seniority it is well established that
continuous officiation in the cadre, grade or service will
provide a valid principle of seniority. The seniority lists
having not been prepared on this principle are liable to be
quashed and set aside. [459G-H; 460A]
(3) Where recruitment to a service or a cadre is from
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more than one source, the controlling authority can
prescribe quota for each source. where the quota is
prescribed, a rule of seniority by rotating the vacancies
can be a valid rule for seniority. However if the rule of
seniority is inextricably inter twined with the quota rule
and there is enormous deviation from the quota rule, it
would be unjust, inequitous and unfair to give effect to the
rota rule. [456B-C]
A. Janardhana v. Union of India & Ors. [1983] 2 SCR
936. S. Gupta v Union of India [1975] Suppl. SCR 491., A.K.
Subramana v. Union of India [1973] 2 SCR 979., P.S. Mahal
and Others v. Union of India & Ors. AIR 1984 SC 1291., O.P.
Singla and Anr. v. Union of India & Ors. AIR 1984 SC 1595, S
C. Jaisinghania v. Union of India & Ors. [1967] 2 SCR 703,
Bishan Sarup Gupta etc v. Union of India & Ors. 11975] I SCR
104, referred to.
(4) What is known in service Jurisprudence as seniority
according to continuous officiation in the cadre from the
grade has been statutorily recognised in Rule 21(4). This is
in tune with fairplay and justice and ensures equality as
mandated by Art. 16. [454E]
(5) A block of recruits in a given year coming from
three independent sources may be integrated inter-se
according to quota and rota. The block in a subsequent year
would be always junior to the bloc of recruits in the
earlier years. This is how Rules 21(4) and 25(i) (ii) can be
harmoniously read and it is unquestionable that they operate
in two different situations and both have to be given effect
to. [455A-B]
(6) Rule 29(A) confers power to relax any of the
provisions of the 1964 Rules and this also comprehends Rule
13(1) which prescribes quota. When the power to relax any of
the provisions is exercised, the Controlling Authority must
be of the opinion that it is necessary of expedient so to do
for reasons to be recorded in writing. Failure to record
reasons will not invalidate the exercise of power. Once the
power to relax a mandatory rule exists and action in
derogation of the rule has been repeatedly taken year after
year, it would be a permissible inference that the action
was taken in relaxation of the rule for which the power
exists. [457B-C]
Bachand Singh and Anr. v. Union of India & Ors. [1972]
3 SCR 898., Montreal Street Railway Company v. Normandi, AIR
1977 P.C. 142., State of U.P. v. Manboden Lal Srivastava
[1958] SCR 533, N.K. Chandan and Ors. v. State of Gujarat
[1977] I SCR 1037, referred to.
435
JUDGMENT:
ORIGINAL JURISDICTION
Writ Petition (Civil) No. 13248 to 13257 of 1983
(Under Article 32 of the Constitution of India)
Madan Bhatia and Sushil Kumar for the Petitioners.
N.C. Talukdar, M.K Ramamurthy, R.N. Poddar, A.K Nag,
and M.A. Rehman for the Respondents.
Respondent No. 26 in person.
The Judgment of the Court was delivered by
DESAI, J. We are back to square one. The same rigmarole
of unending disputes as to inter-se seniority between
promotees, direct recruits and recruits as per the result of
the limited competitive examination with quota-rota as the
guiding star for determining inter se seniority are put in
the lap of The Court.
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This time the service is the Indian Foreign Service
Branch ’B’ (’IFS ’B’ for short). This service was
constituted by the memorandum of Govt. Of India, Ministry of
External Affairs dated July 16, 1956. The service was
consisted of two cadres; a general cadre and two sub cadres
1) Stenographer sub-cadre and 2) Cypher sub-cadre forming
what is styled as special cadre. The general cadre comprises
6 grades. Various provisions were made in the Memorandum for
recruitment to various grades. Para V provided for general
conditions of eligibility for appointment in the service at
the initial constitution. Para V provided that recruitment
to grade l, II and III of the general cadre will be made on
the recommendations of the Senior Selection Board of which
the Chairman will be the Chairman of the Union Public
Service Commission or his nominee. Selection to other grades
will be made by the Junior Selection Board in consultation
with Union Public Service Commission. Para VIII provided for
inter se seniority of persons selected for grades I, II and
III of the general cadre. Appendix to the Memorandum sets
out sanctioned strength of posts in various grades of lFS B’
and the scales of pay attached to each grade.
Petitioners were selected by the Union Public Service
Commission according to the merits obtained at the
examination conducted for the purpose in 1955 for
appointment to the post of Assistant, and were allocated to
the Ministry of External Affairs. After the
436
initial constitution of the service in 1956 petitioners were
offered an option whether they would like to join IFS ’B’ in
Grade lV at the time of its initial constitution. The
memorandum constituting the service provided that future
maintenance of the service would be governed by the rules to
be promulgated for the purpose by the Central Govt.
Accordingly by its notification dated May 6,1964, the Govt.
Of India, Ministry of External Affairs in exercise of all
the powers conferred by Art. 309, promulgated Indian Foreign
Service Branch ’B’ (Recruitment, Cadre, Seniority and
Promotion) Rules, 1964 (’1964 Rules’ for short). By the
afore-mentioned rules, grades II and Ill were integrated and
the grade was styled as integrated grade II and IIl in
general cadre.
Petitioners came to be "promoted between 1976-1979 from
grade IV to integrated grade II and III. The Govt. Of India
published a seniority list of officers in the integrated
grade Il and III of the general cadre of ’IFS ’B’ as on June
25,1979. Petitioners contend that the seniority list is
violative of the constitutionally guaranteed equality of
opportunity in the matter of public service in as much as
direct recruits who came into service long after the
departmental promotees were regularly promoted to the
aforementioned grade have been assigned seniority over the
earlier promoted departmental promotees. Before objections
taken by the petitioners to the seniority list were dealt
with the Central Govt. in supersession of seniority list
dated June 25,1979 published another seniority list of the
officers in integrated grade II and III of IFS ’B’ as on
June 30,1983. Petitioners contend that the seniority list
dated June 30,1983 suffers from the same vice and is all the
more objectionable inasmuch as it leaves blank spaces for
future recruits either as direct recruits or by limited
departmental examination and who are yet to come into
service to be placed over promotees like the petitioners who
have already been in service for a long time. The
petitioners contend that the impugned seniority list appears
to have been drawn up on the principle of quota-rota and
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that in the facts of this case and the relevant rules it is
violative of Art. 14 and 16 of the Constitution. Petitioners
also assert that if Rule 25(13 (ii) is not construed
harmoniously with Rule 21 of the 1964 Rules, Rule 25(1) (ii)
would be violative of the guaranty of equality enshrined in
Art. 16. To be precise, the contention is that where there
is recruitment to a cadre from more than one source and the
recruitment has to conform to the quota prescribed for each
source, simultaneously interlinking the inter-se seniority
in respect
437
Of recruits entering service from different sources to the
quota for . each source, if the quota reserved for any
source is not filled in for a long time and the vacancies
allotted to the source are carried forward and the later day
recruits from that source are given deemed seniority over
the earlier recruits from the other sources, it has the
pernicious tendency to give an undeserved advantage to a
later recruit over the earlier recruit and it would be
violative of Arts. 14 and 16. If it is held that Rule 25(1)
(ii) has precedence over Rule 21, then Rule 25(1) (ii) is
unconstitutional inasmuch as failure to recruit enough
number of persons to the extent of the quota reserved for
the source in a reasonable time, in the absence of any power
to carry forward vacancies available to that source, the
rota rule of seniority would be discriminatory in character
and lead to denial of equality in the matter of appointment
to public service. It was submitted in such a situation the
rota rule would break down under the weight of massive
departure from the quota rule, and the seniority rule. being
inextricable inter-twined with the quota rule if given
effect to would be unjust, unfair and inequitous and would
be violative of Art. 14.
The Under Secretary in the Ministry of External Affairs
filed an affidavit-in-opposition. Averment in Para II of the
petition that petitioners were working as permanent section
officers in the integrated Grade II and III in the general
cadre of the IFS ’B’ was not controverted. After referring
to Rule 13 of the 1964 Rules, it was stated that both the
impugned seniority lists were drawn up in accordance with
the principles governing seniority in the grade as per Rule
25. It was stated that where recruitment to a service or
cadre is from more than one source and each source is
assigned a quota of vacancies, in order to do justice to
recruits from all sources, the seniority is to be determined
according to rota keeping in view the available vacancies to
each source. It was conceded that in integrated grade II and
III, the recruitment is done from three different channels
and quotas have been fixed for all these channels, but the
recruitment is not done at the same time. While the depart-
G mental promotion is made after departmental promotion
committee makes recommendations, the recruitment through
examination is time-consuming because there is a time gap
between publication of results and joining of candidates. It
was further stated that it is not practically possible to
strictly adhere to the quota in any particular year because
candidates nominated by the Union Public Service Commission
may even decline to join service and additional candi
438
dates can be taken from subsequent examinations only. It was
further submitted that the administration overcomes this
difficulty by adhering to the quota by rotation of vacancies
ensuring that over a period of time, the quota requirement
is fully met. The two impugned seniority lists were sought
to be sustained on the footing that by and large quota was
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adhered to and a slight delay or variation in time schedule
would not permit an inference that as the quota rule was not
adhered to, the rota rule of seniority cannot be given
effect. Replying to the averments made in the petition that
vacancies allotted to each source and not filled in at the
relevant time were being carried forward for years and that
when the carried forward vacancies were filled, the recruits
were given retrospective deemed date for seniority relatable
to the coming into existence of the vacancy for that source
without such a provision being found in ’the relevant rules,
it was stated that vacancies have been carried forward, if
at all because of the non-availability of the candidates and
in the absence of a stipulation in the relevant rules
permitting diversion of vacancies from one quota to another,
it was inevitable that the quota of vacancies allotted to a
source have to be carried forward. Replying to the averments
that in the impugned seniority list blank spaces have been
left open for giving seniority to persons who have still not
joined the service and are likely to join at some uncertain
date, it was submitted that this process would not push down
the seniority of the petitioners as they would occupy the
same serial No. in the seniority list.
When the matter was being heard in the Court, one
Radhey Shyam Aggarwal, respondent No. 26 in the petition
appeared and filed his affidavit. He was recruited to Grade
IV IFS ’B’ in 1964 through the open competitive examination
held by Union Public Service Commission. He was promoted to
integrated Grade II and llI on the result of the limited
departmental competitive examination held by the Union
Public Service Commission in 1977. He stated that all
Assistants in the Grade lV who have put in the required
number of years of service are eligible for participating in
limited departmental examination and that as the equality in
this behalf is guaranteed to all those similarly situated,
such holding of examination and promotion based on the
result of the examination would not violate Art. 14.
Referring to Rule 13, he stated that the recruitment to the
integrated Grade II and III is from three independent
sources with quota of vacancies assigned to each, the quota
should be more or less adhered to so as not to give any
unintended benefit
439
to individuals entering through the source of recruitment
over others. It was stated that accepting the contention of
the petitioner would tantamount to giving unintended benefit
to the promotees promoted in excess of the quota
temporarily. It was further stated that delay in holding of
the examination cannot work to the disadvantage of those who
have taken the examination and qualified for promotion and
therefore they should be accommodated in the ‘ vacancies
which have come into existence and were available for the
quota from the date the vacancies came into existence
notwithstanding the fact that the examination was held at a
later date and the results were published still later and
appointment was made thereafter. In short, he submitted that
the two seniority lists were valid and in consonance with
the statutory rules.
Before we proceed to examine the contention of the
petitioners on merits, it is necessary to refer to the rules
of recruitment and seniority relevant to Integrated Grade II
and III. Rule 13 which provides for recruitment to posts in
the Integrated Grade II and III of the general cadre reads
as under:
"13. Recruitment to posts in the Integrated Grades
II and III of the General Cadre:
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1. (a) One sixth of the substantive vacancies, in
the Integrated Grades II and III of the
General Cadre shall be filled by direct
recruitment on the results of 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 Integrated Grades II and III of
the General Cadre. Such appointments shall be
made in 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. G
(b) Temporary vacancies in the Integrated Grades
II and IlI of the General Cadre shall be
filled by the appointment of persons included
in the Select List for the Integrated Grades
II and III of the General Cadre. Any
vacancies remaining unfilled there after
shall be filled first from among the person
440
approved for inclusion in the Select List and
there after by the temporary promotion on the
basis of seniority subject to the rejection
of the unfit of permanent officers of Grade
IV the General Cadre and Grade II of the
Cypher Sub-Cadre who have rendered not less
than eight years of approved service in any
one grade or the two Grades and are within
the range of seniority. Such promotions shall
be terminated when persons included in the
Select List for the Integrated Grades II and
III of the General Cadre become available to
fill vacancies.
(2) The Select List referred to in clauses (a) and (b)
of sub rule (l) shall be prepared in the following
manner:
(i) 33-1/3 per cent of the quota for inclusion in
the Select List shall consist of persons to
be promoted on the basis of a limited
competitive examination to be held by the
Commission for this purpose from time to
time; and
(ii) the rest of the promotion quota for inclusion
in the Select List shall consist of persons
to be promoted on the basis of seniority
subject to the rejection of the unfit of the
officers of the Grade IV of the General Cadre
and Grade II of the Cypher Sub-Cadre who have
rendered not less than eight years of
approved service in any one Grade or both the
Grades.
Provided that if any person appointed to such a
Grade is considered for promotion to the Integrated
Grades II and III of the General Cadre in accordance
with the provisions of this sub-rule, all persons
senior - to him in that Grade shall also be considered
notwithstanding that they may not have rendered eight
years of approved service in that Grade or Grades, as
the case may be.
(3) The Controlling authority shall, from time to time
lay. down the ratio in which the available
vacancies in the
441
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Integrated Grades II and III of the General Cadre shall
be filled from Grade IV of the General Cadre and Cypher
Assistants of the Cypher Sub-Cadre. This ratio shall be
fixed, as far as possible, on the basis of the relative
strength of the respective cadre posts.
Illustration: If the strength of Grade IV of the
General Cadre is 720 and that of the
Cypher Assistants of the Cypher Sub-
cadre 120, the ratio for promotion shall
be 6: 1."
Chapter III contains provisions for fixation of
seniority in different grades. Rule 21 lays down a general
provision for fixing of seniority. Sub-rule 4 is relevant,
which reads as under:
"21. (4) Subject to the other provisions of this rule,
persons promoted or recruited earlier on the basis
of earlier selection or recruitment shall be
senior to those promoted or recruited on the basis
of subsequent selection or recruitment."
Rule 22, 23 and 24 provide for seniority inter-se of direct
recruits, seniority inter-se of officers promoted on the
results of limited competitive examination and seniority
inter-se of officers promoted to a grade on the
recommendations of a departmental promotion committee
respectively but amongst themselves. Then comes Rule 25
which provides for seniority inter-se of the officers
appointed to a grade from different sources. It reads as
under:
"25. Seniority inter-se of the officers appointed to a
Grade from different sources.
(1) Integrated Grade 11 & III of the General Cadre.
(i) The eligible persons in Grade IV of the General
Cadre and Cypher Assistants of the Cypher Sub
Cadre shall be arranged in separate lists In the
order on their relative seniority in their
respective Grades. Thereafter the Departmental
Promotion Committee shall select persons for
promotion from each list upto the prescribed quota
as indicated in rule 13 and arrange all the
persons selected from the two lists in a
consolidated order of merit which
442
will determine the seniority of persons on
promotion to Integrated Grades II and III of the
General Grade
(ii) 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 recruitment and the appointment of persons
included in the Select List, respectively "
1964 Rule have been enacted in exercise of power conferred
by the proviso to Art. 309 of the Constitution and are thus
indisputably statutory in character. Recruitment to
Integrated Grade II and III of the general cadre is from two
independent sources namely (i) direct recruitment on the
result of a competitive examination held by the Union Public
Service Commission for this purpose from time to time and
(ii) by the substantive appointment of persons included in
the Select List for Integrated Grade II and III of the
General Cadre. The Select List for the purpose of filling
vacancies by substantive appointment has to be prepared from
persons coming from two independent sources as required by
Rule 13(2) namely persons to be promoted on the basis of a
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limited competitive examination to be held by the
Commission for this purpose and promotion from Grade IV for
inclusion in the Select List on the basis of seniority in
Grade IV of the General Cadre and Grade II of Cypher sub-
cadre, who have rendered not less than 8 years of approved
service in any grade or both the grades. In short,
recruitment to Integrated Grade II and III will be from
three sources: (i’ 1/6th of the substantive vacancies to be
filled in by direct recruitment on the result of a
competitive examination to be held by the Union Public
Service Commission, (ii) 33 1/3% of the remaining 5/6th of
the vacancies had to be filled in by bringing them on the
Select List on the basis of the results of a limited
competitive examination and the remaining vacancies to be
filled in by promotion on the basis of seniority from Grad
IV of General cadre or Grade II of Cypher cadre who have
rendered not less than 8 years of approved service. There is
thus recruitment to Integrated Grade II and III from three
independent sources and a quota is fixed for recruitment
from each source. The quota as here in above set out was
introduced by amending Rule 13 as, per notification dated
February 12 1975. Earlier the quota for direct recruits was
25% of the vacancies for a period of 5 years and
443
then 33 1/3% of the vacancies. The quota for the other two
sources was 25% of the remaining vacancies on the result of
limited competitive examination and the balance to be filled
in by promotion according to seniority in the feeder grade.
Thus the quota for direct recruits was raised from 25% to 33
1/3% and reduced to 1/6th of the vacancies i.e. 162.3%. The
impugned seniority lists have been drawn up rotating
vacancies for each source and if no recruitment is made from
that source in a given year, the place in the list available
to the source as per rotation is kept open and a later
recruit at any distance of time from that source will be
assigned that place over persons who are already recruited
from other sources and would be working in substantive
vacancies. The net effect of a drawn-up seniority list in
this manner is that a promotee in a given year even within
its quota may go down to a much later direct recruit as the
place in rotation is kept open for him without limitation of
time. This is the crux of the matter.
A bird’s eye-view of the relative position of the
petitioners who are all departmental promotees in the two
impugned seniority lists would bring into focus the contours
of controversy.
--------------------------------------------------------
S.No. of the Name of the Place in the Place in the
petitioners petitioner 1979 senior- 1983 senior-
ity list ity list
---------------------------------------------------------
1 2 3 4
---------------------------------------------------------
1. G.S. Lamba 397 163
2. S.K.Chibber 380 147
3. Kul Bhushan 375 144
4. I.S. Ailawadi 398 164
5. K.D. Avdhani 379 146
6. Q L. Khanijow 387 153
7. Ranvir Chawla - 244
8. N.D. Kharbanda 422 181
9. V.N. Sharma 483 222
10. M. Jayaraman 463 208
-------------------------------------------------------
444
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It will be presently pointed out that the petitioners
whose placements are indicated here and who have entered the
service would be junior to those who enter later into
service and would be placed at the vacant places in the list
which are for purpose of clarity enumerated hereunder. It
will show that those who are yet to come would become senior
to those in service and have entered service number of years
ahead to them. And one is not sure at what length of time
the few entrants will enter service,
The inequity, if it can be so called may be
demonstrably pointed at this stage with reference to the
seniority list of 1979. Placements in this list at Sr. Nos.
294, 300, 305, 312, 318, 324, 330, 336, 342, 348, 354, 360,
366, 372, 378, 384, 390, 396, 402, 408, 414, 420, 426, 432,
438, 444, 456, 462, 468, 474, 480 and 486 have been kept
open or vacant and are to be filled in at a later date by
assigning seniority to direct recruits who would be
recruited to the service for the first time after June 25,
1979 relevant to which seniority list was drawn up. These
later recruits at some unknown future date would score a
march by nearly a hundred steps over the one at No. 486
already in service by regular promotion. Similarly
placements at Sr. Nos. 377, 381, 385, 389, 392, 395, 399,
403, 406, 410, 413, 417, 421, 424, 428, 431, 435, 439, 442,
446, 449, 453, 457, 460, 464, 467, 471, 475, 478, 482, 485,
and 489 have been kept vacant for recruits who would be
recruited to the grade on the result of a limited
departmental examination which would be held after June 25,
1979. In other words, whose who would come into service
after June 25, 1979 either from the source of direct
recruitment or from the source of limited competitive
examination would fill in the above vacant places in the
seniority list and thereby score a march over others who
have not only been in service on June 25, 1979 and have been
substantively promoted and have become members of the
service and who have been included in the seniority list for
the service,
Turning now to the impugned seniority list of June 30,
1983 which for all practical purposes supersedes the
seniority list of June 25, 1979, placements at Sr. Nos. 170,
175, 179, 184, 189, 193, 197, 203, 209, 215, 221, 227, 233,
239 have been kept vacant and these places would be filled
in by direct recruits who would join at some future date not
specified, after June 30, 1983. The disturbing
445
feature is that when direct recruitment will be made at some
future date after June 30, 1983, the first vacant place at
Sr. No. 170 would be assigned to the first in the list of
direct recruits and even though he would enter the service
for the first time somewhere after June 30, 1983, he would
be senior to the departmental promotee holding a substantive
post at Sr. No. 171 Sh. D. R. Goel from February 2, 1978 and
he would also be senior to a recruit from the source of
limited competitive examination recruited on November 13,
1979 and placed in the seniority list at Sr. No. 172, one
Shri Gurcharan S. Singh. It would be advantageous to recall
here that the eligibility criterion for appearing at a
competitive examination to be held by Union Public Service
Commission for direct recruitment as per Rule 20 of 1964
Rules would be in accordance with the regulations made from
time to time by the Government in consultation With the
Union Public Service Commission wherever such consultation
is necessary. The regulations were not referred to in the
course of hearing of these petitions. But if the criterion
was to be a graduate’s degree than any-one appearing at a
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competitive examination after June, 1983 soon after
graduation may not have passed HSC examination in 1976 or
1978 and yet the departmental promotees of that year would
be junior to such a schoolian. This is the net out come of
seniority rule being based on rotation of vacancies
available to each source and quota not being filled in from
time to time when the vacancies occur. The unfortunate
outcome is the same as was noticed by this Court in A.
Janardhana v. Union of India & Ors.(1) However, while
keeping aside this unjust and inequiutous outcome and
uninfluenced by it, we may first look at the relevant rules
for determining inter-se seniority of persons recruited from
three independent sources.
The service was constituted in 1956. However the
statutory rules came into force on May 5, 1964. The
constitution of the service by a memorandum of the Govt. Of
India in 1956 was in exercise of the executive powers of the
Government of India. The statutory rules came into force
from May 6, 1964 and since then the service is governed by
the 1964 Rules. Commencing from the advent of 1964 Rules,
the recruitment from three sources as actually made may be
noticed. Information in this chart is according to averments
in Para 16 of the petition:
(1) [1983] 2 SCR 936,
446
-----------------------------------------------------------
Year Departmental Direct Limited Departmental
Promotees recruits examination appoin-
tees
-----------------------------------------------------------
1964 7 - -
1965 6 10 -
1966 - - -
1967 - - -
1968 - - 3
1969 - - 8
1970 - - -
1971 - - -
1972 34 - 25
1973 29 - 10
1974 5 - 14
1975 39 11 2
1976 26 5 16
1977 - 11 4
1978 47 7 2
1979 36 6 2
1980 27 3 5
1981 24 6 -
1982 24 2 -
1983 24 2 -
----------------------------------------------------------
360 63 91
----------------------------------------------------------
With reference to Para 16 and the chart in the
petition, in the return filed on behalf of the first
respondent Government of India it is stated that the chart
does not give true and correct picture and was denied. It is
stated that the exact figures are given in the chart annexed
as Annexure ’A’ to the return. It reads as under;
447
ANNEXURE ’A’
"Para 16: The figures of recruitment through the
different channel given by the petitioners
are incorrect and misleading.
The correct figures are as given below:-
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Year DPs LDE DRs Remarks
1964 15 - 11
1965$
1966$
1967$ 40 9 -
1968$
1969
1970 - - -
1971 33 19
1972 - 7 -
1973 35 18 12(18) Indent. Can-
didates joined
in 1975.
1974 - 5 5(6) Indent. Joined
in 1976.
1975 35 15 8 Joined in 1977
1976 30 5 7 Indent
1977 - 5 5 Indent
1978 55 19 4 Indent
1979 36 18 14 Indent
1980 44 15 4 Indent
1981 24 12 7 Indent
1982 24 12 8 Indent."
As far as the figures OF direct recruits given for the
years 1973 11 to 1982, the column recites that the figures
therein mentioned are of
448
the indent sent by the Union Public Service Commission for
making direct recruitment but there is nothing to show how
many joined as direct recruits. Accepting the information as
supplied by the respondent Union of India, what strikes one
at a glance is that the recruitment from three sources was
never according to quota nor according to available
vacancies for each source. Record as disclosed does not
indicate that the vacancies available to a particular source
but not filled in during the relevant period were carried
forward. No attempt was made to undertake direct recruitment
in the years 1965, 1966, 1968, 1969, 1970, 1972, 1974 and
1977. Similarly limited competitive examination was not even
held in the years 1964, 1965, 1966, 1968, 1969 and 1970.
Indisputably there was large scale departure from the quota
rule.
It may also be mentioned that in the counter affidavit,
no attempt has been made to give information about the
vacancies available in each year and their splitting up
according to the quota for each source and to point our
whether in-any given year there was a short fall in the
recruitment from a particular source and or there was excess
recruitment from some other source.
The first thing to be noticed is that the statutory
rules do not provide for carry forward of vacancies
occurring in a given year to the next recruitment. The
feeble and inaudible plea to justify carry forward of
vacancies was non-availability of candidates for filling in
vacancies available to a source.
It is of some importance to note that the petitioners
are members of the service and belong to Integrated Grade II
and III in the General Cadre of IFS ’B’. They hold
substantive posts and there is nothing to show that their
promotions when made were either temporary or adhoc or till
such time as a regular recruit is available from the other
source according to quota though their promotions appear to
be in excess of the quota available for the source. The
quota is related to vacancies. Rule 13(1) which provides for
quota clearly recites that l/6th of the substantive
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vacancies in the Integrate- Grade II and III of the General
cadre shall be filled in by direct recruitment etc.
Therefore, it is undeniable that quota is related to
vacancies. If the quota has to be scientifically implemented
it would be incumbent upon the first respondent to
satisfactorily establish the number of vacancies available
every year since the constitution of service; the number of
vacancies available according to quota reserved for each
source; the recruitment done during the
449
year from that particular source and to state whether all
the vacancies allocable to each source were filled in from
the concerned source and if not so filled in, whether any
recruitment in excess of the quota was made from other
sources. It must further be shown whether such excess
recruits were given temporary, stop-gap or adhoc promotion
subject to availability of candidates from other sources who
were entitled to fill in those vacancies and that this was
done for a B short period and till the candidates, regularly
recruited from the sources to which vacancies were allocated
were available to fill in the vacancies held by the recruits
in excess of the quota from the other sources. No such
information was forthcoming. The only justification offered
for not filling in vacancies by recruits from each source
according to its quota is that the procedure for direct
recruitment as also the procedure for holding limited
competitive examination is prolix, time consuming and
dilatory and therefore the recruitment made at a later date
from such source could not work to the disadvantage of such
recruits by pushing them down below those whose promoted in
excess of the quota available to that source.
If Rule 25(1)(ii) which provides for inter-se seniority
of direct recruits to a grade and persons substantively
appointed to the grade from the select list for the grade,
upon its true construction, permits leaving open placement
in the seniority list to be filled in at a later date by
recruits coming from the source for whom placements
according to rotation are kept open, would such rule or such
implementation of the rule of seniority be violative of Art.
16 ?
It is too late in the day to dispute that it would be
open to the Government, while constituting a service, to
provide for recruitment to it from more than one source and
also to reserve quota for each source. As a logical
corrolory, it would equally be open to the F Government to
provide for seniority rule related to rotation of vacancies.
Shortly this is called quota rule of recruitment and rota of
rule of seniority inter-linking them. So far there is no
controversy. The contention of the petitioners is that in
implementing this rule there has been such large scale
deviation that it results in denial of equality to the
members of the service similarly circumstanced. It will be
presently demonstrably established that where rota rule of
seniority is interlinked with quota of rule of recruitment,
and if the latter is unreasonably departed from and breaks
down under its own weight, it would be unfair and unjust to
give effect to the rota rule of seniority. To some extent
this is not res integra. Though some advance has been made
on this proposition in later decisions.
450
In B.S. Gupta v. Union of India(l) a Constitution Bench
of this Court after taking note of the fact that 214 posts
were upgraded from Income-tax Officers Grade II to Income
Tax Officers Grade I, held that with the upgrading of a
large number of posts and the appointment to them of
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promotees, the quota rule collapsed and the seniority rule
having a link with the quota rule would meet the same fate.
In A.K. Subramana v. Union of India (2) it was observed that
’when recruitment is from two or several sources, it should
be observed that there is no inherent invalidity in
introduction of quota system and to work it out by a rule of
rotation. The existence of a quota and rotational rule by
itself will not violate Art. 14 or 16 Of the Constitution.
It is the unreasonable implementation of the same, which
may, in a given case attract the frown of the equity
clause.’
In P.S. Mahal and Others v. Union of India & Ors. (3)
the Court after reiterating the afore-quoted observations in
A.K. Subramana case observed as under:
"The rotational rule of seniority is inextricably
linked with the quota rule and if the quota rule is not
strictly implemented and there is large deviation from
it regularly from year to year, it would be grossly
discriminatory and unjust to give effect to the
rotational rule of seniority."
In the period between the decisions in B.S. Gupta’s case and
A.K. Subramana’s case, this Court threadbare examined the
legal position in relation to quota-rota rule and a large
scale deviation from it with its consequent effect on the
seniority rule. In Janardhana’s case this Court in terms
held that ’As quota rule was directly inter related with the
seniority rule, and once the quota rule gave way, the
seniority rule became wholly otiose and ineffective. It is
equally well-recognised that where the quota rule is linked
with the seniority rule, if the first breaks down or is
illegally not adhered to giving effect to the second would
be unjust, inequitous and improper. It may incidentally be
mentioned that this view was approved and reiterated in P.S.
Mahal’s case.
(1) [1975] Suppl. SCR. 491.
(2) [1973] 2 SCR 979
(3) AIR 1984 SC 1291
451
In O.P. Singla and Anr. v. Union of India & Ors. (1)
Chandrachud, C.J. speaking for the majority after taking
note of the proviso to Rule 7 and Rule 8 of the Delhi Higher
Judicial Service Rules, 1979 held that upon its true
interpretation, the proviso prescribed a quota and Rule 8(2)
provided for rotational system of giving seniority according
to the quota. After taking note of the earlier decisions it
was held that where recruitment is from two independent
sources, the rule of seniority on a rotational basis could
not be held to be unconstitutional or violative of Art. 16.
The Court then proceeded to examine the effect of enormous
departure in the matter of recruitment according to quota
and its shadow over the interlinked seniority. Says the
learned Chief Justice:
"However, instances are not unknown wherein though the
provision of a rule or a Section is not invalid, the
manner in which the provision is implemented in
practice, leads to the creation of disparities between
persons, who, being similarly, circumstanced are
entitled to equal treatment."
After taking note of Rule 16 and 17 of the same rules,
it was observed as under:
"Promotees who were appointed under Rule 16 have been
officiating continuously without a break as Additional
District and Sessions Judges for a long number of
years. It is both unrealistic and unjust to treat them
as aliens to the Service merely because the authorities
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did not wake up to the necessity of converting the
temporary posts into permanent ones, even after some of
the promotees had worked in those posts from five to
twelve years."
It was found as a fact that the provision prescribing
the quota of direct recruitment and promotees was put in
cold storage for a long time. After noticing this ugly fact,
the majority proceeded to observe as under:
"In these circumstances, it will be wholly unjust to
penalise the promotees for the dilatory and unmindful
attitude of the authorities. It is not fair to tell the
promotees that they will rank junior to the direct
recruits who were appointed five to ten years after
they have officiated continuously in
(1) AIR 1984 SC 1595
452
the posts created in the service and held by them
though such posts may be temporary. This Court atleast
must fail them not."
The Court after taking note of the fact that large
number of persons were promoted to temporary posts and such
temporary promotees officiated on substantive posts held
that the proviso to Rule 7 which prescribes a quote for
direct recruits and provide for rotational system of
vacancies between them and the promotees who were appointed
to the service, the rule of seniority according to rotation
of vacancies between promotees and direct recruits according
to quota must inevitably break down when promotions of
promotees are made to the service under Rule 16 and 17. The
majority quoted with approval the following passage from the
judgement in Janardhana’s case:
"But, having done that we do propose to examine and
expose an extremely undesirable, unjust and inequitable
situation emerging in service jurisprudence from the
precedents namely that a person already rendering
service as a promotee has to go down below a person who
comes into service decades after the promotee enters
the service and who may be a schoolian, if not in
embryo, when the promotee on being promoted on account
of the exigencies of service as required by the
Government started rendering service.A time has come to
recast service jurisprudence on more, just and
equitable foundation by examining all precedents on the
subject to retrieve this situation."
The learned Chief Justice made a pertinent observation that
the observations in the extracted passage are not without
relevance to the case before him and lent considerable
support to the conclusion which has been recorded in the
judgment. Thus the ratio in Janardhana’s case has stood the
scrutiny of two later decisions of different benches of this
Court. It may incidentally be mentioned that the minority
view also affirmed the approach and the observations in
Janardhana’s case.
The sum total of the afore-mentioned three judgments
may be freely re-stated in the telling expression in
Janardhana’s case which reads as under .
453
"It is therefore time to clearly initiate a proposition
that a direct recruit who comes into service after the
promotee was already unconditionally and without
reservation promoted and whose promotion is not shown
to be invalid or illegal according to the relevant
statutory or non-statutory rules, should not be
permitted by any principle of seniority to score a
march over a promotee because that itself being
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 22
arbitrary would be violative or Arts. 14 ant 16."
Now proceeding on the assumption that Rule 25 (I) (ii) is
valid and therefore seniority inter-se between recruits from
three different sources has to be computed according to the
quota by rotating substantive vacancies in the grade
reserved for each source, if in actual implementation it
creates disparities between persons who are similarly
circumstanced and thereby deny equal treatment, the rule
would be violative of Art. 16. The outcome is not on account
of an invidious implementation of the rule but non-
implementation of a part of rule for years. The end product
as will be demonstrably established is unjust and unfair and
yet this unjust and unfair action is being sup- ported by
the Union of India which was responsible for utter inaction
in implementing the rule in its letter and spirit and for
unreasonably long intervals. As pointed out earlier, direct
recruitment has not been made for years. Limited competitive
examination has also not been held for years. Promotions
from the select list have been presumably in excess of the
quota but they were appointed to substantive vacancies in
the service and have been holding the posts as in the case
of petitioners for over 6 to 8 years. The promotions were
not styled as temporary, adhoc or stop-gap- Blanks related
to allocated vacancies kept open for future direct recruits
and candidates qualifying at limited competitive examination
in the seniority list indicate 17 that if the next direct
recruitment is made, say in 1990 and the limited competitive
examination is held in 1988, the recruits from the
aforementioned two sources will have to be placed at Sr. No.
170 in the case of direct recruits and little down below in
case of a candidate qualifying at the limited competitive
examination. The direct recruit already placed at Sr. No Fin
170 in 1990 would score a march over departmental promotees
of 1978 and persons in service after qualifying at the
limited competitive examination in 1988. The emerging
situation would be in pari materia with what was found by
this Court in Janardhana’s case and O.P. Singla’s case and
the reasons therein mentioned will mutatis mutandis apply
for quashing the seniority list for the self same reason.
454
Approaching the matter from a slightly different angle,
in our opinion, Rule 21(4) and Rule 25(1) (ii) both can be
harmoniously read because they operate in two different
areas. Rule 21(4) provides that subject to other provisions
of this rule (not all rules) persons promoted or recruited
earlier on the basis of earlier selection or recruitment
shall be senior to those promoted or recruited on the basis
of subsequent selection or recruitment. If the expression
’selection’ refers to those promoted via the select list and
the expression ’recruitment’ refers to those entering
service by direct recruitment, in view of Rule 21(4) those
who enter service by ’recruitment’ or ’selection’ at any
time will always necessarily be senior to those promoted or
recruited on the basis of a subsequent selection or
recruitment. This is what Rule 21(4) provides. In terms it
caters to a situation where recruitment or selection is at
intervals with a time lag. Vacancies in the cadre or the
grade arise every year. Normally the substantive vacancies
in the cadre have to be filled in as they occur or within a
reasonable time. The process of selection and recruitment
must continuously be in operation roughly from year to year.
By the impact of Rule 21(4), the selection or recruitment of
one year shall have precedence over selection or recruitment
of the next year and this is what is known in service
jurisprudence as seniority according to continuous
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officiation in the cadre or the grade which has been
statutorily recognised in sub-rule 4 of Rule 21. This is in
tune with fairplay and justice and ensures equality as
mandated by Art. 16. Now Rule 25(1) (ii) provides for
integrating direct recruits and persons entering via the
select list to a grade. It is implicit in sub-clause (ii) of
Rule 25(1) that it would operate at a time when in a given
year almost simultaneously or within a measurable distance
from each other recruitment is made from all the other
sources. To illustrate if in a given year candidates are
selected for appointment to the grade by direct recruitment
as also by holding the limited competitive examination and
giving promotion and if all the three enter the service or
the grade at or almost at the same time or within the year
and within a reasonable time lag from each other, a question
is bound to arise how to integrate all of them entering
service from different sources in the common seniority list.
Rule 25(1) (;;) caters to this situation and helps in
integrating appointees from three sources to be integrated
into common seniority list according to quota. Now contrast
Rule 25(1) (ii) with Rule 21(4) and the meaning of Rule
25(1) (;;) reveals itself and becomes clear and
understandable.A block of recruits in a given year coming
from
455
three independent sources may be integrated inter-se
according to quota and rota. The block in subsequent year
would be always junior to the block of recruits in the
earlier years. This is how Rule 21(4) and 25(1) (ii) can be
harmoniously read and it is unquestionable that they operate
in two different situations and both have to be given effect
to.
Now turning to the impugned seniority lists, what the
Union of India appears to have done is that it has applied
the quota and rotated the vacancies but where candidates
from a particular source were not available, the vacancies
were deemed to be kept open (some kind of carry forward) to
be filled in by later recruitment from the same source years
after the vacancy occurred, but in the meantime the vacancy
was filled in presumable by excess recruitment from the
other sources. That is clearly either non-implementation of
the quota rule or mal-functioning of the quota rule and yet
the rota rule is adhered to which is both impermissible
under the Rules as well as unjust, unfair and inequitous
being violative of Arts. 14 and 16. 1)
It was however contended on behalf of the respondents
that the quota prescribed by Rule 13(1) being mandatory in
character, any appointment in excess of the quota in any
year would render the excess appointees as irregularly
appointed and they would not become members of the service
and hang outside the service, and can be demoted. It was
said that once recruits are available from the source for
which quota was prescribed, the promotees in excess Or their
quota can and must be replaced by later entrants. It was
submitted that such excess promotees have to be demoted but
to solve them from this harsh situation, the courts have
evolved a rule that they may be pushed down and regularised
in subsequent years. This indulgence, it was said, cannot be
claimed as a matter of right and therefore such excess
promotees cannot claim seniority over recruits from other
sources who may have come at a later date. Reliance was
placed in two decisions of this Court in S.G. Jaisinghani v.
Union of India & Ors. (1) and Bishan Sarup Gupta etc. v
Union of India & Ors. (2) These two decisions are of little
help in; view of the later decisions directly on the point
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 22
and discussed hereinabove,
(1) [1967] 2 S.C.R.. 703,
(2) [1975] 1 S.C.R. 104,
456
The language of Rule 13(1) appears to be mandatory in
character. Where recruitment to a service or a cadre is from
more than one source, the controlling authority can
prescribe quota for each source. It is equally correct that
where the quota is prescribed, a rule of seniority by
rotating the vacancies can be a valid rule for seniority.
But as pointed out earlier if the rule of seniority is
inextricably intertwined with the quota rule and there is
enormous deviation from the quota rule, it would be unjust,
inequiutous and unfair to give effect to the rota rule. In
fact as held in O.P. Singla’s case, giving effect to the
rota rule after noticing the enormous departure from the
quota rule would be violative of Art. 14. There fore
assuming that quota rule was mandatory in character as
pointed out earlier, its departure must permit rejection of
rota rule as a valid principle of seniority;
The matter can be viewed from a different perspective.
The question that may be posted is "Was the quota rule
mandatory in character" ? Rule 29(a) confers power on the
controlling authority to relax any of the provisions of the
l 964 rules. It reads thus:
"29(a) Where the Controlling authority is of opinion
that it is necessary of expedient so to do, it may be
ordered, for reasons to be recorded in writing to relax
any of the provisions of these rules with respect to
any class or category of persons or posts.
Provided that in relation to posts falling within
the purview of the commission, no order in respect of a
class or category of persons or posts shall be made
except after consultation with the Commission."
The controlling authority is defined in Rule 2F to mean
the Government of India in the Ministry of External Affairs.
Therefore the Government of India in the Ministry of
External Affairs enjoys the power, if it is necessary or
expedient so to do, to relax any of the provisions of these
rules, with respect to any class or category of persons or
posts. The proviso carves out an exception that in relation
to posts falling within the purview of the Union Public
Service Commission no order in respect of a class or a
category of persons or posts shall be made except after
consultation with the
457
Commission. We will presently deal with the effect of non-
consultation of the Commission in a given situation.
However, Rule 29(a) indisputably confers power to relax any
of the provisions of the 1964 Rules which shall also
comprehend Rule 13(1) which prescribes the quota.
Undoubtedly, when the power to relax any of the provisions
of the Rules is exercised, the controlling authority must be
of the opinion that it is necessary or expedient so to do
for reasons to be recorded in writing before exercising the
power. It is well-settled that failure to record reasons
will not invalidated the exercise of power. Once the power
to relax a given, mandatory rule exists and an action in
derogation of the rule has been repeatedly taken year after
the year, it would be a permissible inference that the
action was taken in relaxation of the rule for which the
power exists and in this case is located in Rule 29(a). To
hold otherwise would be to come to rather disconcerting
conclusion that a body like the Government of India acted
deliberately in contravention of the mandatory rule from
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 22
year to year. It would as far as possible be proper to avoid
such an inference unless it is inescapable. In this case as
pointed out earlier for years 1965 to 1972 b there was no
direct recruitment and even for the later years only an
indent was placed and not recruitment done, and during all
these years a large number of persons from Grade IV were
promoted as departmental promotees to the Integrated Grade
II and III.A body like the Government of India presumably
knew that there is a statutory quota for recruitment but is
also presumably knew that it had power to relax and for
exigency of service repeatedly acted in derogation of the
quota rule, and therefore it would be permissible to infer
that the action was taken in relaxation of the mandatory
quota rule. This view which we are taking is in accord with
the decision of the Constitution Bench in Pachan Singh and
Anr. v Union of India & Ors. (1) wherein this Court held
that though the direct recruitment was made in consultation
with the Union Public Service Commission though not in
accordance with the prescribed procedure namely on the
result of a competitive examination, as the country was in a
state of emergency, the appointment and selection was made
by interview only and that such appointment by direct
recruitment was made by relaxation of the relevant rules and
the power was located in the Government of India to relax
the rules. No specific order was shown in that case
vouchsafing that the appointments were made in relaxation of
the rule but the court
(1) [1972] 3 S.C.R. 898.
458
inferred from various relevant circumstances then prevailing
that the appoints not in consonance with the prescribed
procedure for direct recruitment must have been made in
relaxation of the rules. When the question again came up in
Janardhana’s case the Court held that if direct recruitment
was made in relaxation of the relevant rules, the same
reasons will mutatis mutandis apply to hold that promotions
in excess of quota were given by relaxing the rules. It is
therefore reasonable to believe in this case that though the
quota was mandatory it was not adhered to by exercising the
power of relaxation both qua persons and posts.
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 Rule 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 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. Normandi,(1) 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
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have not control over those entrusted with the duty and that
at the same time would not promote the main object of the
Legislature, in has been the practice to hold such
provisions to be directory only, the neglect of them, though
punishable, not affecting the validity of 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 statutes of Quebec and conviction was challenged on
the ground of Mistrial held by selecting
(1)AIR 1977 P.C. 142
459
Jurors from unrevised lists. The challenge failed. Coming
home in h State of U.P. v. Manbodon Lal Srivastava(1) 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 provision 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
II and Ill were within the purview of the Union Public
Service Commission and accepting for the time being that the
Commission was not 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.
Chandan and Ors. v. State of Gujarat(2). 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.
Once the promotees were promoted regularly to
substantive vacancies even if temporary unless there was a
chance of their demotion to the lower cadre, their
continuous officiation confers on them an advantage of being
senior to the later recruits under Rule 21(4). If as stated
earlier by the enormous departure or by the power to relax,
the quota rule was not adhered to, the rota rule for inter-
se seniority as prescribed in Sec. 25(1)(ii) cannot be given
effect. In the absence of any other valid principle of
seniority it is well established that the continuous
officiation in the cadre, grade of service will
(1) [1958] S.C.R. 533.
(2) [1977]1 S.C.R., 1037,
460
provide a valid principle of seniority. The seniority lists
having not been prepared on this principle are liable to be
quashed and set aside.
Accordingly these writ petitions succeed and the rule
is made absolute. The impugned seniority lists challenged by
the petitioners have been drawn up in violation of the
provisions of Arts. 14 and 16 of the Constitution and
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therefore they are quashed. The first respondent is directed
to draw up fresh seniority list in the light of the
observations made in this judgment within a period of three
months from today. All promotions granted since the filing
of the petitions are subject to the decision herein given
and they must be readjusted to be brought in consonance
with this judgment. It the circumstances of the case, there
will be no order as to costs.
N.V.K. Petition allowed.
461