W.P.(C) Nos.9502-03/04 & 9504-08/04 Page 1 of 40 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved On: 26th August, 2010 Judgment Delivered On: 27th September, 2010 + WP(C) 9502-03/2004 ASHUTOSH AGARWAL & ANR. …Petitioners Through : Mr.R.K.Dhawan, Advocate with Mr.Rahul Grover, Advocate Versus UOI & ORS. …Respondents Through: Mr.A.K.Bhardwaj, Advocate WP(C) 9504-08/2004 J.K.TRIPATHI & ORS. …Petitioners Through : Mr.R.K.Dhawan, Advocate with Mr.Rahul Grover, Advocate Versus UOI & ORS. …Respondents Through: Mr.A.K.Bhardwaj, Advocate CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest? PRADEEP NANDRAJOG, J. 1. Vide office memorandum dated 16.07.1956, Ministry of External Affairs, Government of India, constituted „Indian W.P.(C) Nos.9502-03/04 & 9504-08/04 Page 2 of 40 Foreign Service Branch B‟ (hereinafter referred to as the „Service‟). The service consisted of two cadres; namely: general cadre and stenographer cadre and a sub-cadre; namely: Cypher sub-cadre. Various provisions were made in the memorandum for recruitment to posts in various grades. In exercise of power conferred upon it by Article 309 of the Constitution of India, Government of India promulgated Indian Foreign Service Branch „B‟ (Recruitment, Cadre, Seniority and Promotion) Rules, 1964 (hereinafter referred to as the „Rules‟). 2. It may be useful to note the relevant Rules pertaining to recruitment and seniority of the general cadre of the service:- “CHAPTER –I GENERAL ….. 3. Composition of the Service – There shall be following Grades in the Indian Foreign Service, Branch ‘B’, and they shall be classified as follows: Grade Designation Classification Character GENERAL CADRE Grade – I Under Secretaries at Hqrs. And Second Secretaries in Missions or Posts abroad. Group-A (Gazetted) Non- Ministerial Integrated Gr.II & III Attaches and Section Officers at Hqrs, Vice Consuls and Registrars in Missions or Posts abroad. Group-B (Gazetted) Ministerial W.P.(C) Nos.9502-03/04 & 9504-08/04 Page 3 of 40 Grade – IV Assistants at Hqrs. And in Missions or Posts abroad. Group-B (Non- Gazetted) Ministerial Grade-V Upper Divisional Clerks at Hqrs. And in Missions or Posts abroad. Group-C (Non- Gazetted) Ministerial Grade-VI Lower Division Clerks at or Posts abroad. Group-C (Non- Gazetted) Ministerial CHAPTER – II APPOINTMENTS AND PROMOTION TO CADRE POSTS …. 13. Recruitment to posts in the Integrated Grade II and III of General Cadre:- 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. Provided that: i) the number of vacancies to be filled by the substantive appointment of persons included in the Select List for the Integrated Grades II and III of the General Cadre, in a recruitment year, shall be proportionate to the vacancies to be filled by direct recruitment for that year; ii) if sufficient number of candidates are not available for filling up the vacancies in any recruitment year either by direct recruitment or by W.P.(C) Nos.9502-03/04 & 9504-08/04 Page 4 of 40 appointment of persons included in the Select List for the Integrated Grades II and III of the General Cadre, the unfilled vacancies shall be carried forward and added to the number of vacancies of the same mode of recruitment to be filled in next year; iii) the unfilled vacancies shall be carried forward for not more than two recruitment years, beyond the year to which recruitment relates, whereafter the vacancies, if any, still remaining unfilled belonging to one mode of recruitment, shall be transferred as additional vacancies for the other mode of recruitment. …. (2) The Select List referred to in clauses (a) and (b) of Sub-rule (1) shall be prepared in the following manner:- (i) 33-1/3 percent 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 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 officer referred to in clause (ii) is considered for promotion to Grades II and III of the General Cadre in accordance with the provisions of this rule, all persons senior to him in that Grade and belonging to the Scheduled Castes or the Scheduled Tribes, who have rendered not less than four years‟ approved service in their respective Grades shall also be considered for promotion. (3) The Controlling Authority shall from time to time, lay down the ratio in which the available vacancies in the Integrated Grade-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 W.P.(C) Nos.9502-03/04 & 9504-08/04 Page 5 of 40 ratio shall be fixed, as far as possible on the basis of the relative strength of the respective cadre posts. (14) Recruitment to Grade IV of the General Cadre:- (1)(a) 50 percent of the substantive vacancies in Grade-IV of the General Cadre shall be filled by direct recruitment on the results of an open examination held by the Commission for the purpose from time to time and remaining vacancies shall be filled by the substantive appointment of persons included in the Select List for this Grade in the order of seniority in the Select List except when for the reasons to be recorded in writing, a person is not considered fit for such appointment in his turn. …. (2) The vacancies for inclusion in the Select list referred to in Sub-rule (1) shall be filled by promotion on the basis of seniority-cum-fitness from among employees of Grade-V of the General Cadre who have rendered not less than five years approved service in that Grade….” CHAPTER – III FIXATION OF SENIORITY 21. General Provisions (1): Persons appointed to the service at the initial constitution shall have the seniority already allotted to them at that time. (2) Persons appointed to that Grade of the Service at the initial constitution shall be senior to persons appointed to that Grade at the maintenance stage. (3) Persons appointed to the Service after the initial constitution and up to the appointed day shall have the seniority already assigned to them by the Controlling Authority. (4) Notwithstanding the provisions of sub-rule (3) and (4), permanent employees of each Grade shall be ranked senior to persons who are officiating in that Grade. x x x x 25. Seniority inter se of the officers appointed to a Grade from different sources:- (1) Integrated Grades II & III of the General Cadre: (i) W.P.(C) Nos.9502-03/04 & 9504-08/04 Page 6 of 40 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 order of their relative seniority in their respective Grade. Thereafter the Department 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 will determine the seniority of persons on promotion to Grades II & III of the General Cadre. (ii) Officers substantively appointed to a Grade from the Select List for the Grade and direct recruits shall be assigned seniority inter se according to the quotas of substantive vacancies in the Grade reserved for the appointment of persons included in the Select List and direct recruitment, respectively. Provided that persons appointed substantively in a Grade in a particular year against the unfilled vacancies brought forward from previous years shall be placed below the last slot, be it for a direct recruit or for an officer included in the Select List as determined on the basis of the rotation of vacancies between direct recruits and persons included in the Select List in that year as illustrated below:- …..” 3. In the decision reported as G.S.Lamba v Union of India (1985) 2 SCC 604, the petitioners therein who were appointed to the post of Assistant in the year 1955 had raised an issue of seniority. Between the years 1976-1979 the said petitioners was promoted from grade IV to integrated grade II and III. On 25.06.1979 the Government of India published a seniority list of officers in the integrated grade II and III of general cadre, which list was objected to by the said petitioners. It was contended by the said petitioners that the said seniority list is violative of the constitutionally guaranteed equality of opportunity in the matter of public service, inasmuch as direct recruits who came into service long after the departmental promotees were regularly promoted to the aforementioned W.P.(C) Nos.9502-03/04 & 9504-08/04 Page 7 of 40 grade have been assigned seniority over the earlier promoted departmental promotees. Before objections taken by the petitioners could be dealt with by the Government another seniority list of the officers in integrated grade II & III of general cadre was published on 30.06.1983, which list was also objected by the said petitioners. Aggrieved by the issuance of the seniority list dated 30.06.1983, the said petitioners filed a writ petition under Article 32 of Constitution of India before Supreme Court. It was contended by the petitioners therein that the seniority list 30.06.83 suffers from the same vice as the seniority list dated 25.06.79 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 above the promotees like the petitioners, who have already been in service for a long time. The said petitioners contended that the impugned seniority list was drawn up on the principle of rota-quota and results in violation of Articles 14 and 16 of Constitution of India. 4. To be precise, the contention advanced by the said petitioners was 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 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 latter day recruits from that source are given deemed seniority over the earlier recruits from the other sources, it has the pernicious tendency to accord an undeserved advantage to a latter recruit over the earlier recruit and would be violative of Articles 14 and 16. That if it is held that Rule 25(1)(ii) has W.P.(C) Nos.9502-03/04 & 9504-08/04 Page 8 of 40 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 within 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 would lead to denial of equality in the matter of appointment to public service. It was submitted that 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 inextricably intertwined with the quota rule, if given effect to, would be unjust, unfair and iniquitous and thus would be violative of Article 14. 5. After having examined the relevant rules, the Supreme Court found merit in the contention(s) advanced by the petitioners therein and quashed the seniority lists dated 25.06.79 and 30.06.1983. It was directed that the government shall draw up a fresh seniority list within a period of three months from the pronouncement of the judgment in consonance with the ratio laid down in the judgment. The relevant portion of the decision of the Supreme Court may be extracted and is as under:- “12. 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 Government 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: ….. W.P.(C) Nos.9502-03/04 & 9504-08/04 Page 9 of 40 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: 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: …. 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…..Indisputably there was large scale departure from the quota rule. ….. 14. 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. 15. 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 ad hoc 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 one-sixth of the substantive vacancies in the integrated 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 W.P.(C) Nos.9502-03/04 & 9504-08/04 Page 10 of 40 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 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, stopgap or ad hoc promotion subject to availability of candidates from other sources who were entitled to fill in those vacancies and that this was done for a 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 who were promoted in excess of the quota available to that source. ….. 17. 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 corollary, it would equally be open to the Government to provide for seniority rule related to rotation of vacancies. Shortly this is called quota rule of recruitment and rota rule of seniority interlinking 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 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 W.P.(C) Nos.9502-03/04 & 9504-08/04 Page 11 of 40 advance has been made on this proposition in later decisions. … 21. The sum total of the aforementioned three judgments may be freely restated in the telling expression in A. Janardhana case1 which reads as under: (SCC p. 628, para 38) “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 relevant statutory or non-statutory rules should not be permitted by any principle of seniority to score a march over a prometee because that itself being arbitrary would be violative of Articles 14 and 16.” Now proceeding on the assumption that Rule 25(1)(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 Article 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 supported 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….. 22. 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 W.P.(C) Nos.9502-03/04 & 9504-08/04 Page 12 of 40 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 officiation in the cadre or the grade which has been statutorily recognised in sub-rule (4) of Rule 21. This is in tune with fair play and justice and ensures equality as mandated by Article 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)(ii) 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)(ii) reveals itself and becomes clear and understandable. 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 subsequent year would be always junior to the block of recruits in the earlier years. This is how Rules 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. 23. 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 W.P.(C) Nos.9502-03/04 & 9504-08/04 Page 13 of 40 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 presumably by excess recruitment from the other sources. That is clearly either non-implementation of the quota rule or malfunctioning 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 Articles 14 and 16. …. 25. 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