ition No 1938 of 1981 Under Article 32 of the Constitution of India M K Ramamurthy and P P Singh for the Petitioners
M C Bhandare Raju Ramalchandran R R Garg V J Francis and NM Popli for the Respondents
Normally a resolution of such a dispute these two well known groups of service employees would necessitate considereation of various decisions relating to the quota and rota rule and such other allied matters
We have been relieved of this exercise because We feel that the dispute in this case can be resolved on facts unaided by precedents on such matters
The counsel on both sides advisedly therefore restrained themselves from citing the relevant authorities before us
Now the facts All the 39 petitioners are promotees to the post of Assistant in the Indian Council of Agricultural Research for short the society  the 1st respondent herein
The second respondent is the Union of India and respondent Nos 3 to 31 are direct recruits to the same post
Respondent Nos 32 to 88 are also promotees and have been impleaded as proforma respondents
3 The petitioner originally belonged to the service of the Central Secretariat Government of India Ministry of Agriculture
The Society was a part of that department till 1 4
1965 on which date the Government of India decided to re organise the 1067 Society into a fully autonomous organisation with its own secretariat
The petitioners opted to join the service in the Society on such re organisation
Respondent Nos 3 to 31 were directly recruited after an open competitive test held by the Society in 1967 and 1911A seniority list was prepared by the Society in 1976 showing the relative positions of the promotees and the direct recruits
The provocation for filing the writ petition was the publishing of a second seniority list by the Society by its Memorandum No 27 581 Estt
II dated 741981
This list brought changes in the earlier list and pushed down the promotees from the positions they occupied in that list
The prayer in the writ petition is to quash this seniority list on the ground that it violates Article 1 and 16 of the Constitution of India and to stay its implementation
The Petitioners  case is that they came into the Society by virtue of the option exercised by them and that they are entitled to seniority on the basis of the length of their service from the date of option
According to them recruitment rules laying down the terms of service in the Society were not avilable then and as such seniority had to be fixed on length of service
The case of the contesting respondents is that seniority has to be fixed not with reference to the date of the reorganisation of Society and the date of option exercised by the petitioners but from the date of their appointment on a regular basis
They seriously disputed the case of the petitioners that they were entitled to seniority from the date they exercised their option
According to them the petitioners have to establish that they were duly appointed in the service on a regular basis when they exercised their option to claim seniority on the strength of length of service from the date of their option
We must confess that there was considerable confusion both on the side of the petitioners and on the side of the Society and the Government regarding the existence of rules regulating the conditions of service in the Society
Things proceeded in the Society on the basis that there were no recruitment rules in existence till 1974 while the factual position is that rules were in existence from 1964
It was on this wrong aasumption the that seniority list was prepared on 2nd February 1979
In that list seniority was reckoned with reference to length of service
It was after realising that a mistake had been committed and that rules in fact existed that the impugned list was drawn up on 7th April 1981
1068 6
The petitioners have given a comparative statement as Annexure 9 showing the manner in which the new list has worked to their detriment
This Annexure show
the relative potions of the promotees and the direct recruits in the 1976 list and in the 1981 list
To cite two or three examples direct recruits who were placed at serial Nos 4 20  83 in the 1976 list have gone up as seria Nos 2 10 and 22 respectively in the 1981 list
While preparing the 1976 list a deemed date of appointment in the grade was adopted to calculate the length of service
The petitioners case is that the direct recurits never questioned their placement in this list and therefore cannot oppose with any justification the petitioners  request for quashing the impugned list
Though this submission  is wholly not unfounded the petitioners cannot succeed merely on the inaction on the part of the direct recruits but have to satisfy the Court of a right in them to entitle them to seniority from the date they opted and came into the Society s service
It is this aspect of the case that needs examination by us in this writ petition
In this case we do not have the usual picture of great injustice glaring in the face of promotees being eased out of their places by direct recruits after a long lapse of time
Here we are dealing with a small Society with a limited number of employees and the dispute relates to a short period from 1965 to 1973
The petitioners cannot in this case put forward either the case of a wholesale reduction of their places legitimately due to them or the collapse of the quota and rota system as was the case in some of the decided cases
The short point here is as to when the petitioners were regular appointed in the grade of Assistants and as to whether the petitioners  rightful places have been robbed by the Society and the direct recruits by the impugned seniority list
The petitioners were originally Upper Division Clerks with the Agricultural Department of Government of India
They came to Court with the definite plea that their seniority was fixed on the basis of the principles applicable to Government service in the absence of any rules framed by the society regulating their service conditions
It is stated in the petition that they made representations to the authorities for laying down of clear principles to determine the inter se seniority between them and the direct recruits and as a consequence the Government of India issued a Memorandum dated 20th April 1970 asking the Govern ment employees to give their option by 30th April
1970 and 1069 reiterating at the same time that the inter se seniority of the ministerial staff under the reorganised Council would be fixed on the basis of the date of appointment made on a regular basis
It is significant to note that the petitioners have not produced a single of their appointment orders for this Court to be satisfied as to then they were appointed as Assistants on a regular basis while a specimen appointment order of direct recruits has been produced
Still the petitioners insist that the crucial date for determining the inter se seniority is 1 4 1965 the date on which the Society was reorganised
We find it difficult to accept the contention that the length of service has to be reckoned from 141965 or from the respective dates when they entered the service of the Society on exercise of their option when the Memorandum produced by them has clearly stated that the inter se seniority will be fixed on the basis of the date of appointment in the grade on the regular basis
We have looked into the Memorandum Annexure 4 dated 20th April 1970
It clearly states that the date for exercise of option has been extended to 30th April  1970 and that the principles determining the inter se seniority of the ministerial staff in the reorganised Council was considered by the Society in consultation with the Ministries of Law and Home Affairs and Finance and that it was decided that the seniority of the ministerial staff in the reorganised Council would be fixed on the basis of  date of appointment to the grade on a regular basis 
 This statement in the Memorandum which finds a place in paragraph 8 of the Writ Petition also shows according to us the hollowness of the contention of the petitioners that seniority has to be fixed with reference to the date on which option was exercised by them
Direct recruitment to the post of Assistants in the Society was made by holding competitive examination in 1967 and 1971
Upper Division Clerks like the petitioners who were working with the Agricultural Dept Govt
Of India could very well have appeared for this competitive examination and got themselves directly recruited as Assistants on successfully passing the competitive examination
We are told that some of the petitioners in fact appeared for the competitive test without success
Though this statement made by the counsel for the respondents at the bar was not disputed by the petitioners  counsel we do not propose to rely on it since it is not a matter on record
Those who were successful at the competitive examination and the interview were offered the posts of Assistant by regular appointment as per appointment order produced as 1070 Annexure 5 issued by the Society containing the terms of appointment
As already indicated the petitioners have either by design or by oversight failed to make available to us their orders of appointment on a regular basis in the grade when they exercised option
It is against this background that the challenge to the 1981 list has to be considered
If the petitioners can satisfy us that they had greater length of service in equivalent grade than the direct recruits they are entitled to succeed
If they fail the list has to stand despite the fact that the earlier list was not challenged by the direct recruits
We do not have on record anything to show when the petitioners were regularly appointed in the grade of Assistants
In the absence of this evidence can the petitioners succeed  As already stated the Society and the Union Government were originally under a misapprehension that no rules existed governing the service conditions in the Society
The petitioners have produced a Memorandum Annexure 3 dated 21st August 1967 which throws considerable light on the dispute involved in the case
lt is stated therein that the Government of India have approved of the reorganisation of the Indian Council of Agricultural Research into an office wholly controlled and financed by the Indian Council of Agricultural Research with effect from a date to be appointed shortly
As a consequence of the above decision the various posts existing as Government posts in the said Secretariat will be abolished with effect from the aforesaid date and corresponding number of posts in various cadres will be created as nongovernment posts under the Society
Paragraph 2 of this Memorandum reads The Indian Council of Agricultural Research has however agreed to take over such officers as belong to the CSS holding posts of Section Officer s grade and Grade IV only CSSS and CSCS employed on date in the Department of Agriculture and its attached offices including the Indian Council of Agricultural Research as are willing to serve the Council
The Indian Council of Agricultural Research will of course select from amongst the persons opting for its service only the number of persons required by them keeping in view the total number of existing posts in the various cadres borne on the Govern _ 1071 ment side of the Indian Council of Agricultural Research
 Clause VI of Para 2 reads as follows The inter se seniority of the staff in Indian Council of Agricultural Research shall be determined in accordance with the rules to be framed for the purpose taking into account among others the principles governing the seniority under the Central Government
 From the passages extracted above it becomes clear that appointments are to be regularly made to various grades only with effect from a date to be appointed after 21st August 1967 the date of the Memorandum which means that the deemed date of appointment mentioned in the 1976 list cannot be relied upon by the petitioners to project a case of their length of service from that date
The petitioners placed strong reliance on the Memorandum Annexure 4 dated 20th April 1970 and in particular to the following It has also been decided that 1st April 1965 shall constitute the crucial date for determining the inter se seniority of the staff finally merging into the reorganised Council
Accordingly a combined inter se seniority list will be prepared for each grade of the persons on the basis of the above principle in accordance with the position obtaining in respect of each individual as on 1st April 1965 and all regular vacancies arising in the Council with effect from 1st April 1965 upto date meant to be filled by promotion including those which have been filled up on ad hoc basis will be filled up on a regular basis from the 1 inter se seniority list drawn up in the manner indicated above
Relying on this the petitioners attempt to contend that their seniority should start from the date they exercised option and that this is correctly reflected in 1976 list
This submission overlooks the fact that even at that time there were rules in existence prescribing a ratio of 1 1 between promotees and direct recruits
In addition to this it has to be noted that here also filling up of vacancies on a regular basis is emphasised
1072 13
The Petitioners cannot therefore seek support from this to press a case of seniority from the date of exercise their options or from the deemed date of appointment
Rights can accrue to them as members of the new service only from the date they are regularly appointed in the grade
The impugned list instead of continuing the mistake committed in the 1976 list has only corrected the mistake
We find from the records that the Union Government and the Society were originally in error in their assumption that no rules existed for regulating the service conditions in the Society
We have at page 91 as Annexure 6 rules relating to the Indian Council of Agricultural Research before its reorganisation
The said rules show that the posts of Assistants can be fill d up 50 by direct recruitment and 50 by promotions
In other words for every promotee there should be a direct recruit also
As is seen in the Handbook for personnel officer the relative seniority of direct recruits and promotees shall be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on the quotas of vacancies reserved for direct recruitment and promotion respectively in the Recruitment Rules
New recruitment rules for verious posts in the Society including Assistants with which we are concerned came into force with effect from 191974
Under these rules in the number of posts available for Assistants 50 was to be by way of promotion from amongst the UDCs
having rendered at least 5 years approved service in the grade on the basis of seniority cum fitness subject to rejection of the unfit on the recommendations of the DPC and 50 by direct recruitment on the basis of the results of competitive examination held by the ICAR
This method of recruitment was to be with effect from 111976
The method of recruitment before this date is also indicated in these rules
It is provided in these rules that vacancies arising between 2981973 and 31121975 will be filled wholly 100 by promotion
This means that vacancies prior to 291973 will be filled up in accordance with the 1964 rules and vacancies between 2981973 and 31121975 will be filled by the promotees alone and thereafter in the ratio I 1
From these rules it is evident 1073 that the Society was conscious of the claims of the promotees and hence safeguarded their interests by providing 100 posts for them between 2981973 and 31121975
By doing so justice was done to them in a great measure
The petitioners have no grievance that in preparing the 1981 list which is impugned in this writ petition a departure has been made to their detriment without adhering to the quota provided in the rules
Their only grievance is that the earlier list was changed without taking into account the deemed dates of appointment
We have already indicated that in the absence of satisfactory proof of the date of appointment of the petitioners in the Grade as assistants in the Society the petitioners cannot successfully urge before us a violation of Article 14 and 16 of the Constitution of India
A look at the list prepared in accordance with the above rules fortifies our conclusion that no great injustice was done to the promotees in the preparation of the list
As one goes through the list one finds that the gap between the promotees and the direct recruits is of a very short duration and not wide as in other cases
It is true that direct recruitment was made first only in 1967
However to world out the quota system an earlier date of appointment had to be given to the direct recruits
This could not be avoided
This according to us has not done any great injustice to pursuade us to give relief to the petitioners
The dislocation was limited only to a period between 1965 to 1967 and 1967 to 1971 aod not to a fairly long period of time
E In our Judgment therefore the petitioners are not entitled to succeed
The writ petition fails and is dismissed
The parties are directed to bear their costs NVK Petition dismissed


Summary:
The 39 petitioners in the writ petition were promotees to the post of Assistant in the Indian Council of Agricultural Research first respondent
The Nos 3 second respondent was the Union of India and respondent Nos 3 to 31 were direct recruits to the same post
Respondent Nos 32 to 88 were also promotees and impleaded as proforma respondents
The petitioners contended that they belonged to the service of the Central Secretariat Department of Agriculture and the society was a part of that Department till 141965 on which date the Government of India decided to re organise the society into a fully autonomous organisation with its own Secretariat
The petitioners opted to join the service in the Society on such re organisation
Respondent Nos 3 to 31 were directly recruited after an Open competitive test
The seniority list was prepared by the Society in 1976 showing the relative positions of the promotees and the direct recruits
A second seniority list was published by the Society on 741981 and this list brought changes in the earlier list and pushed down the promotees from the positions they occupied in that list
The petitioners contended that this seniority list should be quashed on the ground that it violated Article 14 and 16 of the Constitution as recruitment rules laying down the terms of services in the Society were not available seniority had to be fixed on length of service
They were also entitled to seniority on the basis of the length of their service from the date of they came into the Society by virtue of the option
The case of the contesting respondents was that seniority has to be fixed not with reference to tho reorganisation of the Society but on the date of their appointment on a regular basis and that the petitioners had to establish that they were duly appointed in the service on a regular basis when they exercised their option
Dismissing the Writ Petition
1065  HELD 1
In the absence of satisfactory proof of the date of appointment of the petitioners in the grade as assistants in the Society the petitioners cannot successfully urge violation of Article 14 and 16 of the Constitution
No great injustice was done to the promotees in the preparation of the list
Goeing through the list one finds that the gap between the promotees and the direct recruits is of a very short duration and not wide as in other cases
Direct recruitment was made first only 1967
However to work out the quota system an earlier date of appointment had to be given to the direct recruits
This could not be avoided
This has not done great injustice to the petitioners
This dislocation was limited only to a period between 1965 to 1967 and 1967 to 1971 and not a fairly long period of time
1073 C E 2
The memorandum Annexure 4 dated 20th April 1970 clearly states that the principles to determine the inter sc seniority of the ministerial staff in the reorganised Council was considered by the Society and that it was decided that the seniority of the Ministerial staff would be fixed on the basis of date of appointment made on a regular basis
 The contention of the petitioners that seniority has to be filed with reference to the date on which option was exercised by them has no basis
1069DE 3
Direct recruitment to the post of Assistants in the Society was made holding competitive examination in 1967 and 1971
Upper Division Clerks like the petitioners who were working with the Agricultural Department could very well have appeared for this competitive examination and got themselves directly recruited as Assistants on successfully passing the competitive examination
Some of the petitioners in fact appeared for the competitive test without success
Those who were successful at the competitive examination and the interview were offered the post of Assistant by regular appointment
1069F H 4
Relying on Annexure 4 Memorandum dated 24470 the petitioners  attempt to contend that their seniority should start from the date they exercised option and that this is correctly reflected in 1976 list
This submission overlooks the fact that even at that time there were rules in existence prescribing a ratio of 1 I between promotees and direct recruits
In addition to this it has to be noted that here also filling up of vacancies on a regular basis is emphasised 1071 G H 5
The Union Government and the Society were originally in error in their assumption that no rules existed for regulating the service conditions in the Society Annexure 6 are rules relating to the Indian Council of Agricultural Research before its reorganisation
The said rules show that the posts of Assistants can be filled up 50 by direct recruit also
The handbook for personnel officer shows that the relative seniority of direct recruits and promotees shall be determined according to the rotation of vacancies between direct recruits and promotees which shall based on the quotas of vacancies reserved for direct recruitment and promotion respectively in the Recruitment Rules
New recruitment rules came into effect from 191974
This method of recruitment was to be with effect from 111976
It further provided that vacancies arising between 2981973 and 31121975 were to be filled wholly 100 by promotion This 1066 means that vacancies prior to 2981973 and 31121975 will be filled up in accordance with the 1964 rules and vacancies between 2981973 and 3112 1975 will be filled by the promotees along and thereafter in the ratio 1 1
From these rules it is evident that the Society was conscious of the claims of the promotees and hence safeguards their interests by providing 100 posts for them between 2981973 and 31121975
By doing so justice was done to them in a great measure
1072 C E G H 1073