vil Appeal No 16 13 of 1990
From the Judgment and Order dated 14
1987 of Patna High Court in Civil Writ Jurisdiction Case No 4097 of 1985
196 RK Garg Praveen Swarup and Pramod Swarup for the Appellants
MK Ramamurthi LR Singh BB Singh DP Mukherjee and MP Jha for the Respondents
The Judgment of the Court was delivered by RAY J
Arguments heard
Special Leave granted
This appeal on Special Leave is directed against the Judgment and Order dated April 1 1987 passed by the High Court Patna m CWJC No 40971985 allowing the writ petition in part
The subject matter of the writ petition is the gradation list dated 91
1986 of the Inspectors of Excise by which the Government of Bihar has finally fixed the inter se seniority of the petitioners respondents in this Appeal who were promoted vis a vis the respondents Nos 3 and 4 appellants in this appeal who are promoted to posts of Inspectors of Excise in 5 quota for promotion from the posts of Upper Division Assistants of Excise Department in the said Civil Writ Petition
The matrix of this case in short is that the appellants Nos 1 and 2 who were respondents 3 and 4 of the writ peti tion were promoted to the posts of Excise Inspectors from among the Upper Division Assistants of the Excise Department against the vacancies of the year 1974 75 and they joined as Inspectors of Excise on May 7 1976
The respondent Nos 3 and 4 who were Sub Inspectors of Excise were promoted on 24474 in the vacancy of the year 1974 75 by the Commis sioner of Excise Bihar
In the gradation list prepared by the Government on January 9 1986 the appellants were shown as seniors to the respondents even though the respondents were promoted from selected Sub Inspectors of Excise and they joined the posts of Excise Inspectors earlier than the date when the appellants were promoted as Excise Inspectors
This has been challenged by the respondents on the ground that there is an apparent error committed by the State in showing the respondents juniors to the appellants in the gradation list
The gradation list was challenged mainly on two grounds namely 1 the State Government has no jurisdiction to determine the seniority of Excise Inspectors and the only competent authority for determining the same was the Excise Commis sioner who has neither determined the seniority nor prepared the gradation list
197 2 The respondents petitioners of the writ petition have continuously officiated for years together in the vacancy of direct recruits and merely because the respondents were appointed against the vacancy of direct recruits they could not be pushed down for determining the seniority and shown junior to the contesting appellants
The writ petition was allowed by the High Court holding that the respondents were not appointed in the 5 quota set apart for being filed up by promotion from the posts of Upper Division Assistants in the Excise Department inasmuch as this quota was notified by the Government on March 31 1975 even though the Government passed order providing 5 of the total vacancies to be filled by the promotion from among the selected Upper Divi sion Assistants and selected Head Clerks
It has therefore been contended that the petitioners Nos 3 and 4 respond ents Nos 3 and 4 in this appeal cannot be shown as juniors to the appellants
Moreover it has been alternatively urged that these respondents having been promoted to the posts of Inspectors of Excise in the quota of direct recruitment for several years they could not be pushed down and the appel lants who joined on promotion to the posts of Inspectors of Excise subsequently cannot be shown as senior to the re spondents Nos 3 and 4 in the said gradation list
The High Court Patna after hearing the parties held that the re spondents Nos 3 and 4 who were appointed in the vacancies of the promotees of the year 1974 75 and who joined as Inspectors on 2441974 cannot be made juniors to appellants Nos 1 and 2 who were promoted and joined two years later on 75
The High Court allowed the writ petition in part by quashing the gradation list Annexure 15 and directed the Government to draw up a fresh gradation list in the light of observations made therein
It is against this judgment and order passed in CWJC No 409785 the instant appeal on special leave has been filed by the appellants
The only question that falls for consideration in this appeal is whether the appellants who claim to be promoted to the posts of Inspectors of Excise in the 5 quota set apart for promotion to the posts of Inspector of Excise from among the Upper Division Assistants of the Excise Department against the vacancies of the year 1974 75 had been promoted in this quota
In order to decide this question it is relevant to refer to certain provisions of the Bihar Excise Act 1915 as well as Rules 1  4 of the Inspectors of Excise Recruitment Rules 1936
198 Section 27 of the Bihar Excise Act 1915 hereinafter referred to as Act defines Excise Commissioner as the Officer appointed under Section 7 sub section 2 clause a of the said Act
Section 7 Sub Section 2a provides that the State Government may appoint an officer who shall sub ject to such control as the State Government may direct have the control of the administration of the Excise Depart ment and the collection of the excise revenue
Section 72a further provides that the State Government may delegate to the Board the Commissioner of a Division or the Excise Commissioner all or any of the powers conferred upon the State Government by or under this Act except the powers conferred by Section 89 to make Rules
Section 72f provides that the State Government may withdraw from any officer or person all or any of the powers of duties con ferred or imposed upon him by or under this Act
By Notifi cation No 417 dated January 15 1919 in exercise of the powers conferred under the Act the Lt Governor in Council was pleased to make clause ii of the Notification order to the effect that there shall be an Excise Commissioner who shall subject to the control of the Board will have through out the province of Bihar the control of the administration of the Excise Department and the collection of excise reve nue
It has also been provided in clause iv of the Notifi cation that the power to appoint by promotion Inspector of Excise was delegated to the Excise Commissioner by the Government
Thus it is clear and apparent that the Excise Commis sioner has been delegated the powers by the State Government to appoint by promotion from selected Sub Inspectors of Excise but no here it has been mentioned in any of those provisions that the Excise Commissioner has been vested with the power of determining the seniority of the Inspectors of Excise
Therefore the submission that the seniority list or the gradation list prepared by the State Government is unauthorised being beyond the powers of the State Government is unsustainable and the gradation list that has been pre pared on January 9 1986 by the State Government is legal and valid as upheld by the High Court
It is necessary to refer to the recruitment rules to determine seniority
Rule 1 of Excise Recruitment Rules 1936 reads as follows 1
Inspectors of Excise and Salt shall be appointed i by direct recruitment by the Board of Revenueor 199 ii by promotion of selected Sub Inspectors by the Commissioner of Excise and salt
Not more than 25 per cent of the vacancies shall ordinarily be filled by direct recruitment but with the approval of the Board of Revenue on the recommendation of the Commissioner of Excise this proportion may on any occa sion be increased to 50 per cent
Later on by Notification No 1451 dated 23
1945 published in the Bihar Gazette on March 7 1945 the expression not more than in the last paragraph of Rule 1 has been delet ed
Subsequently by Government Notification SO 411 dated 31st March 1975 published in the Bihar Gazette Extra ordinary Issue on that day after clause 2 or rule 1 clause 3 has been added and it reads as follows by promotion from among selected confirmed Upper Division Assistants of the Excise Commissioner s office and selected confirmed Head Clerks of the District Excise Offices
By the said notification the following has been added at the end of rule 1 Atleast 5 per cent of the total vacancies shall be filled by promotion from among the selected Upper Division Assistants and selected Head Clerks Thus on a perusal of the said rule as amended clearly it indicates that 25 of the total vacancies for the post of Inspectors of Excise shall be filled by direct recruitment 70 shall be filled by promotion from among the selected Sub Inspectors and 5 shall be filled by promotion from among the confirmed Upper Division Assistants of the Excise Commissioner s Office and confirmed Head Clerks of the District Excise Offices
The 25 quota of direct recruits can be relaxed and increased to 50 per cent
It is signifi cant to note in this connection that no provision has been made in the said rules for relaxation of the quota of promo tees
The necessary question arises if the promotion from Sub Inspectors of Excise to the post of Inspectors of Excise have been made in excess of the quota of the promotees in the vacancy of direct recruits and later on direct recruit ment has been made the promotees can in such circumstances be treated to be juniors to the direct recruits or not
This question was under consideration before this Court in the case of VB Badami vs State of Mysore AIR 1980 SC 1561
In this case The Mysore Administrative Service 200 Recruitment Rules 1957 classified class 1 posts into two categories senior scale posts and the junior scale posts
Two thirds of the junior class I posts were filled by promo tion from Class II officers and the balance one third by direct recruitment by the Public Service Commission
By the Mysore Recruitment of Gazetted Probationers Rules 1959 the quota for direct recruitment to the Mysore Administrative Service was increased from one third to two thirds for a period of five years as a consequence of which the quota for promotees had been reduced to one third Rule 17b of the 1957 Recruitment Rules empowered the Government to fill up posts temporarily by promotion against vacancies for direct recruits but such promotees were liable to be reverted after the appointment of direct recruits
In January 1972 a Gradation List was published in which the direct recruits respondents were shown as senior to the appellants
The appellants challenged the seniority of the respondents in writ petitions on the ground mainly that the respondents were recruited only to the 20 temporary posts created and that the appellants and 51 others were appointed to 59 permanent vacancies
The appeal was dis missed by this Court and it has been observed as follows The principles generally followed in working out the quota rule are i Where rules prescribe quota between direct recruits and promotees confirmation or substantive appoint ment can only be in respect of clear vacancies in the perma nent strength of the cadre ii confirmed persons are senior to those who are officiating iii as between per sons appointed in officiating capacity seniority is to be counted on the length of continuous service iv direct recruitment is possible only by competitive examination which is the prescribed procedure under the rules
In promo tional vacancies the promotion is either by selection or on the principle of Seniority cum merit
A promotion could be made in respect of a temporary post or for a specified period but direct recruitment has generally to be made only in respect of a clear permanent vacancy either existing or anticipated to arise at or about the period of probation is expected to be completed v if promotions are made to vacancies in excess of the promotional quota the promotions may not be totally illegal but would be irregular
The promotees can not claim any right to hold promotional posts unless the vacancies fall within their quota
If the promo tees occupy any vacancies which are within the 201 quota of direct recruits when the direct recruitment takes place the direct recruits will occupy the vacancies within their quota
Promotees who are occupying the vacancies within the quota of direct recruits will either be reverted or they will be absorbed in the vacancies within their quota in the facts and circumstances of the case and vi as long as the quota rule remains neither promotees can be allotted to any of the substantive vacancies of the quota of direct recruits nor direct recruits can be allotted to promotional vacancies and vii quotas which are fixed are unalterable according to exigencies of the situation
They can only be altered by fresh determination of quotas under the relevant rules
One group either on the ground that the quotas are not filled up or that because there had been a number in excess of the quota the same should be absorbed depriving the other group of quota
 It thus emanates from the said Judgment of this Court that when promotion has been made in excess of the quota the promotees who have been promoted in the quota of direct recruits will be pushed down and will be absorbed in the quota of promotees of subsequent years and the direct re cruits made within their quota would be deemed to be senior to those promotees recruited in excess of their quota
In the case of A Janardhana vs Union of India  Ors  the question of determination of seniority between the direct recruits to the post of Assistant Execu tive Engineer AEE and the promotees from the post of Assistant Engineer fell for consideration
The Military Engineer Services Class I Recruitment Promotion and Sen iority Rules 1949 Rules for Short were brought into operation on or from 14
Under Rule 3 and 4 of 1949 Rules the recruitment to MES Class I was to be made from two sources namely by competitive examination in accordance with Part II of the Rules and by promotion in accordance with Part III of the Rules
Rule 4 prescribed a quota of 91 between direct recruits and promotees
During the years 1962 1963 and 1964 particularly and until the year 1969 the Class I Service Rules were not statutory in character
The Union Government relaxed the Rules both in regard to recruitment by interview and in regard to the quotas fixed by the Rules for direct recruitment and recruitment by promotion to Class I Service
The 1949 Rules and the subse quent amendments thereto acquired statutory flavour in character by incorporation only in 1969 and till then they were mere administrative instructions
202 It was due to emergency situation in the market of recruitment of engineers between 1959 and 1969 and the dire need of urgently recruiting engineers which led the Govern ment to make recruitment m relaxation of quota rule by foregoing the competitive examination and promoting subordi nate ranks to Class i Service
Appellant and similarly situated persons were thus promoted to meet the dire need of service in relaxation of the quota rule
It has been observed by this Court that when recruitment is from two independent sources subject to prescribed quota but the power is conferred on the Government to make recruitment in relaxation of the rules any recruitment made contrary to quota rule would not be invalid unless it is shown that the power of relaxation was exercised mala fide
It was also observed that the recruitment made to meet the exigencies of service by relaxing the quota rule the promo tion in excess of quota would be valid
It had further been observed that once the quota rule was fully relaxed between 1959 and 1969 to suit the requirements of service and the recruitment made in relaxation of the quota rule and the minimum qualification rule for direct recruits was held to be valid no effect could be given to the seniority rule enunciated in Para 3iii of Appendix V of the 1949 Rules which was wholly interlinked with the quota rule and could not exist apart from it on its own strength
This was im pliedly accepted by the Union Government and was implicit in the seniority lists prepared in 1963 and 1967 68 in respect of AEE because both those seniority lists were drawn up in accordance with the rule of seniority provided in Army Instruction No 241 of 1950
It has been further held that there was no justification for redrawing the seniority list affecting persons recruited or promoted prior to 1969 when the rules acquired statutory character
Therefore the 1974 seniority list was liable to be quashed and the two 1963 and 1967 seniority lists must hold the field
In Shri OP Singla and another vs Union of India  Ors  the question of inter se seniority between promotees and direct recruits came up for consideration before this Court
Delhi Higher Judicial Service was consti tuted on May 15
It was governed by the Delhi Higher Judicial Service Rules 1970
Rule 7 provides that the recruitment to the service will be made from two sources ie by promotion on the basis of selection from members of the Delhi Judicial Service who have completed not less than ten years of service in the Delhi Judicial Service and by direct Recruitment from the Bar 203 provided that not more than 13rd of the substantive posts in the service shall be held by direct recruits
The senior ity of direct recruits vis a vis promotees shall be deter mined in the order of rotation of vacancies between the direct recruit and promotees based on the quota of vacancies reserved for both categories
Rule 7 provided that the first available vacancy will be filled by a direct recruit and the next two vacancies by promotees and so on
It has been observed that persons who are appointed or promoted on an ad hoe basis or for fortuitous reasons or by way of a stop gap arrangement cannot rank for purposes of seniority with those who are appointed to their posts in strict conformity with the rules of recruitment whether such latter class of posts are permanent or temporary
It has also been observed that persons belonging to the Delhi Judicial Service who are appointed to temporary posts of Additional District and Sessions Judges on an ad hoc basis or for fortuitous reasons or by way of a stop gap arrangement constitute a class which is separate and dis tinct from those who are appointed to posts in the Service in strict conformity with the rules of recruitment
In view of this the former class or promotees cannot be included in the list of seniority of officers belonging to the Service
It has therefore been held that those who are appoint ed to the post of Additional District and Sessions Judges on ad hoc basis for fortuitous reasons cannot be taken into consideration in determining the seniority of the members of the Service
In the case of GS Lamba  Ors
vs Union of India  Ors
  the question of inter se seniority between direct recruits and promotees cropped up for consid eration before this Court
The Indian Foreign Service Branch B  was constituted in 1956
The statutory rules Indian Foreign Service Branch B Recruitment Cadre Seniority and Promotion Rules 1964 were enforced on or from May 6 1964
It provided for recruitment from three sources 1 direct recruitment on the result of a competitive exami nation held by the Union Public Service Commission 2 substantive appointment of persons included in the selective list promoted on the basis of a limited competi tive examination held by the Union Public Service Commission and 204 3 Promotion on the basis of seniority 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 1 16th of the substantive vacancies to be filled in by direct recruitment 2 3313  of the remaining 56 of the vacancies to be filled on the basis of results of the limited competitive examination and 3 the remaining vacancies to be filled in by promotion on the basis of seniority
The petitioners were selected by the Union Public Serv ice Commission on the basis of the merit 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 of 1956 they were offered an option whether they would like to join the IFS 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 inte grated 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
This list was assailed by the petitioners on the ground that it is discriminatory and is consequently violative of Article 14 and 16 of the Constitution
This Court upheld their contention and quashed the seniority list
The Union Government was directed to prepare a fresh seniority list
In the instant case direct recruitment had not been presumably made in excess of the quota and the promotees were appointed to substantive vacan cies in the service and they had been holding the posts for over 6 to 8 years
In the seniority list that was prepared the direct recruits who were promoted much later to the promotees in excess of their quota were shown senior to the promotees it has been held that once the promotees were promoted regularly and they have been officiating for a number of years the continuous officiation confers on them an advantage of being senior to the later recruits under Rule 214
It has been further observed that if there has been an enormous departure from the quota fixed by exercis ing the powers to relax the quota rule was not adhered to the rota rule for inter se seniority as prescribed in 205 Rule 25i and ii cannot be given effect
In the absence of any other valid principle of seniority it has been held that continuous officiation in the cadre grade or service will provide a valid principle of seniority
It has been held that where the direct recruitment had not been made according to the quota for years and promo tions have been made in excess of the quota and the promo tees were appointed in the vacancies of the direct recruits and work for a number of years the quota rule cannot be given effect to and the promotees cannot be shown as junior to the direct recruits in the seniority list
Continuous officiation in the cadre grade or service will provide a valid principle of seniority
Seniority List was therefore quashed and set aside
In the case of Narendra Chadha vs Union of India  there was a quota rule for filling up the vacancies from two sources by direct recruitment as well as by promotion
The direct recruitment was not made for number of years and the posts of direct recruits were filed up by promotion
The promotees were allowed to function in the promoted posts for 15 to 20 years
Thereafter direct re cruitment was made
There was a rule which empowers the Government to relax the quota
It was held that whenever a person is appointed in a post without following the rules prescribed for that appointment to the post he should not be treated as a person regularly appointed to that post
Such a person may be reverted from that post but in a case where persons have been allowed to function in higher posts for 15 to 20 years without due deliberation it would be unjust to hold that they had no claim to such posts and could be reverted unceremoniously or treated as persons not belonging to the service at all particularly where govern ment is endowed with the power to relax the rules to avoid injustice
It has been held by this Court that continuous officiation of the promotees could be justified on the basis of the rule 16 on the presumption that the Government had relaxed the rules and appointed the promotees to the posts in question to meet the administrative requirements
In the instant case undoubtedly the Government made an order on 2031974 for reservation of 5 of the posts for recruitment by promotion from among selected confirmed Upper Division Assistants of the Commissioner s Office and the selected confirmed Head Clerks of the District Excise Of fices
Pursuant to that order the Government later on published a Notification SO 411 in the Bihar Gazette on March 31 1975 stating therein about the quota of 5 of total vacancies reserved for the promotion of the selected Upper Division 206 Assistants to the post of Inspectors of Excise
It has been urged by the learned counsel appearing on behalf of the respondents that the respondent Nos 3 and 4 being promoted and appointed as Inspectors of Excise from the 75 quota for promotion from selected SubInspectors of Excise in April 1974 they cannot be shown as junior to the appellants in the seniority list inasmuch as the appellants were appointed on 751976
It has been further submitted in this connec tion that the appointment of the appellants on promotion from the 5 quota of the vacancies available in 1974 cannot be made
It has also been submitted that the Notification referring to the 5 quota for promotion of Upper Division Assistants cannot be deemed to be a quota in respect of vacancies for the year 1974 75
As such quota cannot be enforced unless and until the reservation of 5 quota of vacancies is published in the official gazette for informa tion of the public
In support of this submission the deci sion in Harla vs State of Rajasthan  was cited at the Bar
In this case on 1112
1923 the counsel passed a resolution which purported to enact a law called The Jaipur Opium Act and the only question was whether the mere passing of the resolution without promulgation or publication in the Gazette or by other means to make the Act known to the public was sufficient to make it a law and enforce the same
There was an amendment of Section 1 of the Jaipur Opium Act to the effect that it shall came into force from 191924
The Act was never published in the Gazette
It was held that the Jaipur Laws Act 1923 which required the whole of the Act to be published instead of publication of only one section will not validate the same
In the instant case the Government made an order reserving 5 of the total vacancies in a year for being filled in by promotion from the selected Upper Division Assistants and Notification to that effect was published in the Gazette in March 1975
This Notification related to the vacancies for the year 1974 75 ie the year ends on March 31 1975
It is perti nent to refer to the specific averments made by Excise Commissioners Government of Bihar on behalf of the re spondent Nos 1 and 2 The State of Bihar and Commissioner cum Secretary Excise and Prohibition Government of Bihar
It has been stated in paragraph 3 of the Counter Affidavit That the promotion of the petitioners were caused in the Quota of 5 which was given to the petitioner by a Notifica tion dated 313
1975 which is annexed in the petition as Annexure A but due to the noting given in the File firstly by the Member of Board of Revenue on 203
1974 and the 207 same has caused promotion to the petitioner which should not have been done unless there is a notification in effect to the noting given by the State Government
 Noting given by the Board is reproduced herein below quota in the cadre of Excise Inspector is given from the cadre of confirmed Upper Division Clerks Excise Commissioner s office and confirmed Head Clerks of District offices
 It has been further stated that in the year 1976 the Secre tary of the Commission Excise Department gave a note whose English translation is given below As stated at page 22 of the notesheet that the pay scale of Upper Division Assistants is more than the Head Clerks and therefore they will rank senior on that basis
So first of all the question of promoting Sarvasri Awadh Prasad Singh and Ram Vriksh Pd
Singh s against the vacancy at Roster 67 and 68 has to be considered
The question of promotion of Sarvasri Vidyadhar Ghatwari and Devendra Narain Pd would be considered against future vacancies and therefore it is proposed to keep their names in the waiting list Sd Ravikishore Narain 264
1976 It has been further stated in paragraph 5 of the said affi davit that the Excise Commissioner accordingly passed an order in the year 1976 which is dated 55 1976 promoting the petitioner in accordance with the quota
The English translation of the same is as follows  So far the question of promotion of AssistantsHead Clerks is concerned the rule has been framed in 1974 and for the first time promotion is being given on this account
I have carefully gone through the above rules and from perusal of the file it would appear that only 5 of the total vacan cies shall be filled in by the promotion
In the rule the word 2 at least has come perhaps inadvertantly in at least 5
There is no such mention in the file
On this basis as has been mentioned in the note of the Secretary only two posts have to be filled up from the quota of 208 Assistants
So far as the persons by whom the filling up of the vacancies are concerned I agree with the note of the Secretary marked Kh  in the notesheet ie at present Awadh Prasad Singh and Ram Brikh Pd
Singh should be promoted
The name of Vidyadhar Pd
and Devendra Narayan Pd should be kept in the waiting list
 It has been further stated that the Notification giving 5 quota which is annexed in the petition as Annexure A from the grade of AssistantHead Clerks came into picture only on 3131975 on the basis of order made by Government in March 1974
However the petitioners were promoted on the vacan cies caused in the year 1974 75 because the decision was taken in the year 1974 itself and accordingly the Department carried out the same and accordingly a Gradation List was prepared
A counter affidavit has also been filed on behalf of the respondent Nos 6  7 that is promotees Inspectors of Excise
It has been stated in paragraph 6 that the rules of recruitment of Inspectors of Excise were modified by Notifi cation No 411 dated 313
There was no provision in the Excise Act and Rules for appointment of Inspectors of Excise from among selected Assistants of Commissioner s office and Head Clerks of the District Excise offices prior to this Notification
This Notification for the first time required the Department of Excise to fill at least 5 of the total vacancies by promotion from among the confirmed Upper Division Assistants and selected Head Clerks
The respond ents were promoted as Inspectors of Excise from Sub Inspec tors of Excise vide Order 2091 dated 2441974 in their own quota and joined the promotional posts on 15
It has also been stated that the appellants were appointed Inspec tors of Excise in the year 1976 and joined on 75
Apparently there was no quota for appointment of Inspectors of Excise from among Assistants and Head Clerks in the year 1974 and the averments made by the respondent State or appellants to this effect is mala fide ridiculous and false
The appellants being appointed in the year 1976 by virtue of the Notification which came into existence on 313
1975 cannot claim this vacancy of 1974 and hence seniority allotted to them by the respondent State was in flagrant violation of law laid down by the Supreme Court and hence the High Court rightly allowed the CWJC No 409785 against the appellants herein
In the supplementary rejoinder affidavit on behalf of the appellants it has been stated in paragraph 4 that the State of Bihar has 209 proved the appellants right to promotion on a vacancy that occurred in 1974 by the following clear admissions made by the State of Bihar in its counter affidavit
So far the question of promotion of Assistants or Head Clerks is concerned the rule has been framed in 1974 and for the first time promotion is being given on this account However the petitioners were promoted on the vacancies caused in the year 1974 75 because the decision was taken in the year 1974 itself and accordingly the Department carried out the same It has also been stated in paragraph 5 of the said Rejoin der That the Government who was clearly conscious of the rights created by the decision to amend the Rules taken in 1974 and in accordance with the decision a Notification was issued later in March 1975
But the ministerial failure to make the Notification conformed to the decisions taken in 1974 is no more than a clerical error and the Government therefore rightly promoted the petitioner within their quota against the vacancies occurred in 1974 by its Order
 1t has been further stated in paragraph 10 of the said rejoinder That there is a provision of seniority of Excise Inspector in Rule 6 of Recruitment Rules vide notification No 54 dated 311936 for Excise Inspector
It is clearly stated that the seniority of all Inspectors on confirmation will be determined in accordance with Government Order No 6509A dated 12121934 which is still in force
Besides there are also Government instructions with regard to seniority such as letter No 15784 dated 2681972
The High Court ought to have considered the Rules of seniority when the case related to the seniority of Excise Inspector
 In paragraph 11 it has been further averred That in view of the clear admission of the Government the petitioners are entitled to the benefit of promotion with effect from as against the vacancies of 1974 as fixed by the Government and the High Court order is liable to be set aside and the appeal may be allowed
 210 It thus appears from a perusal of the Affidavit in counter sworn by the Commissioner of Excise on behalf of the State of Bihar the respondent Nos
I and 2 that the order creating 5 of the vacancies for promotion from the posts of confirmed Upper Division Assistants and selected Head Clerks have been made by the Notification dated 313
1975 though according to the noting given in the File by the Member Board of Revenue on 203
1974 on the basis of the Govern ment Order the petitioners appellants of this appeal were promoted in the vacancies of the year 1974 75 by order of the Excise Commissioner dated 551976
Therefore the argument on behalf of the respondents in this appeal that the appellants were promoted against the 5 quota in respect of the vacancies of the year 1975 76 is not sustainable
The appellants having been appointed in the quota of 5 out of the vacancies of 1974 75 are entitled to be shown as senior in the gradation list prepared by the Government on 91
We have already mentioned hereinbefore that the re spondent Nos 3 and 4 were promoted from the selected Sub Inspectors Excise that is in the 5 quota reserved for promotion from the Upper Division Assistants of the Excise Department
In accordance with the decisions rendered by this Court in the case of VR Badami vs State of Mysore supra the respondent Nos 3 and 5 who were promoted to officiate in the 5 quota of Upper Division Assistants and confirmed Head Clerks are to be pushed down as soon as the appellants have been recruited in the said quota to the posts of Inspectors of Excise in 1976 inasmuch as the promo tion though not illegal is irregular and the promotees are to be accommodated in the vacancies of subsequent years in their quota
1t is only in the case of Narendra Chandha vs Union of India supra exception was made by this Court to the aforesaid decision on the ground that the quota was broken down or not adhered to as there was no recruitment from the quota of direct recruits for a period of 15 to 20 years and the promotees were allowed to officiate in the quota of direct recruits for a long period of 15 to 20 years in such circumstances it was held that in view of Rule 16 empowering the Government to relax the quota rules the promotees officiating in the vacancies of direct re cruits were presumable permitted to do so in relaxation of the quota as such the seniority will be determined from the date of their continuous officiating in the said posts
Similar view has been expressed in GS Lamba s case supra
In the instant case there was no rule for relaxa tion of the quota nor the respondent Nos 3 and 4 who were promoted from selected Excise Sub Inspectors to the Inspec tors of Excise in the 5 quota of Upper Division Assistants in 1974 officiated till 751976 when the appellants joined as Inspectors of Excise from their 5 quota
It cannot be said in such circumstances 211 that the quota has not been filled up for a long period nor can it be said that the respondents 3 and 4 who were promot ed in excess of their quota have worked as Inspectors of Excise for long time and as such the respondents Nos 3 and 4 cannot claim to be seniors to the appellants
Moreover it is evident from the affidavit of the Commissioner of Excise on behalf of the State of Bihar that the 5 quota of vacan cies were brought into being by the Board of Revenue of March 20 1974 though there was delay in notifying the same in the Gazette till 313
Nevertheless it has been subsequently averred that the appellants were promoted from the said 5 quota of vacancies of the year 1974 75
In these circumstances on a conspectus of the decisions referred to hereinbefore as well as of the Government Order reserving 5 quota of vacancies on 203
1974 and subsequent Notification of the same on 313
1975 the only conclusion that follows is that the appellants being promoted as In spectors of Excise from the 5 quota of vacancies of the year 1974 75 they were rightly shown as seniors in the gradation list prepared by the Government on 91
The findings of the High Court to the effect that the appellants were not promoted in the 5 quota of vacancies for the year 1974 75 is wholly wrong
Accordingly the gradation list prepared by the Government on 91
1986 showing the appel lants as seniors to the respondents are quite legal and valid and so the same is upheld
We therefore set aside the judgment and order passed by the High Court in CWJC No 4097 85
In the facts and circumstances of the case there will be no order as to costs
SB Petition allowed


Summary:
The two appellants had joined as overseers in the PWD of the respondent Madhya Pradesh State
Thereafter they were appointed as Junior Engineers
The grievance of the appel lants is with regard to their seniority in the next promo tional post viz that of Assistant Engineer
Recruitment Rules which govern the promotional post lay down that the Departmental promotion Committee is required to consider the names of all eligible candidates on merits and judge their suitability in all respects on merit cum seniority basis
The DPC is also required to arrange the names of all the selected candidates in the order of their merit
In the case of exceptionally meritorious junior he is given a higher number in the selection list
This list is sent to Public Service Commission for its approval
After approval the list becomes the select list and the promotions are made from this list serial wise
Under the Rules to be eligible to be considered for promotion to the post of Assistant Engineer a Junior Engineer has to have an experi ence of two years as Junior Engineer
As the State Govt
wanted a certain number of Assistant Engineers but enough number with requisite qualifying serv ice were not available so taking resort to the Rule of Administrative Exigency contained in the proviso to Rule 191 of the Rules the Govt
promoted some Junior Engineers including both the appellants is Assistant Engineers on July 22 1971 on purely ad hoc basis
On August 7 1972 respond ents 40 to 63 were appointed as Assistant Engineers by direct recruitment and on November 22 1972 respondents 2 to 39 and the appellants were selected as Assistant Engineers by the DPC
On the same date the State Govt
issued an order of appointment of the appellants and respondents 2 to 39 in which appellant No 1 was shown at 132 serial No 14 and appellant No 2 at serial No 28
The State Govt
thereafter prepared a seniority list of Assist ant Engineers as per the order of November 22 1972
The appellants challenged the seniority list before the High Court by a Writ Petition
The High Court dismissed the Writ Petition
Hence the present appeal
Dismissing the appeal this Court HELD Under the Rules to be eligible to be considered for promotion to the post of Assistant Engineer a Junior Engineer has to have an experience of two years as Junior Engineer
133G In the instant case unless the DPC makes the selec tion none can be appointed as Assistant Engineer regularly
The appellants were ineligible to be appointed as Assistant Engineers initially
Their appointments were made specifi cally under the power given to the Government to make ad hoc appointments for administrative exigency
The appointment orders made it clear that the appointments were in the said Special Circumstances and that they will not be deemed to determine seniority for any purpose whatsoever
138C D Once it is held that the appellants were appointed on ad hoc basis what comes into play is the proviso to Rule 191 which permitted the Government to make such ad hoc appoint ments for purely administrative exigencies
139D Baleshwar Dass  Ors
vs State of UP  Ors etc
 1981 1 SCR 449 and GP Doval  Ors
vs Chief Secre tary Government of UP  Ors   re ferred to