WA 276/2005 BEFORE THE HON’BLE THE CHIEF JUSTICE(ACTING) BEFORE HON’BLE MR JUSTICE HN SARMA JUDGMENT AND ORDER Being aggrieved by the judgment and order dated 10.3.2005 passed by the learned single Judge in WP(C) No 82/2003, the unsuccessful writ petition ers have yet made another attempt to challenge the inter-se seniority list dated 10.4.2003 fixing the inter-se seniority between the petitioners and the private respondents who were respectively appointed under Rule 6(a) and 6(b) of the Miz oram (Finance and Accounts Service) Rules, 1991, (hereinafter referred to as 19 91 Rules ). 2. We have heard Mr DK Misra, learned senior counsel assisted by Mr B Chakravorty for the appellants, Mr AK Sarma, learned GA, Mizoram and Mr AK Go swami, learned senior counsel for the private respondents. 3. The facts as emerging from the pleadings of the parties that are considered necessary for the purpose of disposal of this appeal are as follows. 4. The State Public Service Commission published an advertisement o n 26.3.97 inviting applications for filling up of 12 Nos vacancies in Junior Gra de Mizoram Finance and Accounts Service, in terms of the requisition made by the State of Mizoram. In the said advertisement it is specifically mentioned that o ut of 12 vacancies, 3 vacancies would be filled up by direct competitive examina tion and 9 vacancies would be filled up by limited departmental examination. How ever, in partial modification of the advertisement, the Commission extended the last date of submission of application till 17.7.97 and also published the subje cts of competitive examination vide advertisement No dated 3.7.97. Pursuant to t he aforesaid advertisement, the appellants and the private respondent Nos 3, 4 a nd 5 had duly filed their applications offering their candidature for limited de partmental examination and direct competitive examination. The Public Service Co mmission after completion of the process made necessary selection for the posts so advertised and selected and recommended the appellants for being appointed un der the category of limited departmental examination candidates, pursuant to whi ch they were appointed vide notification dated 16.10.97 to the post of Junior Gr ade Mizoram Finance and Accounts Service. The private respondent Nos 3, 4 and 5 who had applied for the post under the category of direct recruitment through th e competitive examination were also selected and recommended by the Public Servi ce Commission on 16.12.97, pursuant to which they were appointed in the Junior G rade Mizoram Finance and Accounts Service on 30.3.98. 5. While both the appellants and the private respondents were servi ng in the same cadre after recruitment in the manner as aforesaid in terms of Ru le 6(a) and 6(b) of 1991 Rules, a provisional inter-se seniority list of various categories of officers under the Mizoram Finance and Accounts Service including the Junior Grade was published on 6.8.2001 wherein the names of the appellants were placed above the private respondents. The private respondent Nos 3, 4 and 5 having filed their objection against the said provisional inter-se seniority li st, the same was modified vide notification dated 7.5.2002 by which the name of the private respondent No 3 has been placed below the appellant Nos 1 and 3 wher eas the private respondent No 4 was placed below the appellant Nos 3 and 4 and t he private respondent No 5 was placed before the appellant Nos 5 and 6. Aggrieve d by the modified inter-se seniority list dated 7.5.2002, both the appellants an d the private respondents had filed objection. Thereafter the authority on 31.10 .2002 published a further provisional inter-se seniority list of Junior Grade M izoram Finance and Accounts Service vide notification dated 31.10.2002 placing t he private respondent No 3 above the appellant Nos 1 and 2 and private responden t No 4 above the appellant Nos 3 and 4 and the private respondent No 5 above the appellant Nos 5 and 6. Not being satisfied with the said provisional inter-se s eniority list dated 31.10.2002, the appellants objected to the same by filing re presentation on 14.11.2002. Upon receipt of the said representation, concerned a uthority published the final inter-se seniority list on 10.4.2003 maintaining th e position as reflected in the provisional inter-se seniority list dated 31.10.2 002, which is the subject matter of dispute in the writ proceeding. 6. The provisions relating to recruitment and conditions of service including fixation of seniority of the concerned officers are regulated and gui ded by a set of statutory Rules, namely the Mizoram (Finance and Accounts Servic e) Rules, 1991, as cited above. Although the aforesaid Rules have been replaced by a set of Rules known as the Mizoram (Finance and Accounts Service) Rules, 200 1, but the dispute raised in the writ petition as well as in the present appeal would be regulated and guided by 1991 Rules and there is no dispute in the respe ct at the Bar. Rule 5 of the 1991 Rules provides that there shall be four grades , namely (a) Selection Grade, (b) Junior Administrative Grade, (c) Senior Grade and (d) Junior Grade and all the posts in the service shall be Mizoram Finance & Accounts Service (Group A) Gazetted posts. The method of recruitment to the ser vice provided in Rule 6 falling under Part- III of the 1991 Rules, which is as f ollows: 6. Recruitment to the service after the commencement of these rules shall be by the following methods, namely- (a) 25 percent of the substantive vacancies in the Junior Grade which may oc cur from time to time, in the authorised permanent strength of the service, shal l be filled by direct recruitment through a competitive examination in the manne r specified in Part-IV of these rules. (b) The remaining such substantive vacancies shall be filled by selection in the manner specified in Part- V of these rules from amongst those substantively borne on the cadre of Sub- Treasury Officers, Auditors, Divisional Accountants, Treasury Accountants and Superintendents of Accounts in the Departments of Food & Civil Supplies and Transport under the Government of Mizoram in consonance wi th their respective Recruitment Rules framed by the Government. . 7. The procedure for selection for appointment is 25 percent substa ntive vacancies by direct recruitment in the Junior Grade is prescribed in Rules 8 and 9 falling under Part IV of the Rules. Similarly, procedure for recruitmen t by selection to the remaining category of 75 percent of posts by way of promot ioin through limited departmental examination is prescribed under Rule 11 fallin g under Pat V of the Rules. 8. Rule 27 makes it incumbent upon the Government to prepare a seni ority list as determined in the manner prescribed therein. Rule 27(3) of the Rul es makes provisions for relative seniority of direct recruits and of promotees, which shall be determined according to rotation of vacancies between direct recr uits, and of promotees, which is based on quota of vacancies reserved for direct recruits and selection under Rule 6 of the Rules. 9. Mr DK Misra, learned senior counsel, submits that that the appel lants and the private respondents were recruited from two different sources by t wo different selection procedures initiated on the basis of different advertisem ents, the appellants have been selected and appointed in the year 1997 whereas t he private respondents have been appointed in the month of March, 1998 and there has been break down in the quota system contained in the Rules and as the respo ndents have failed to maintain the quota / rota system in the recruitments as co ntained in Rule 6 of the Rules, the provisions of Rule 27(I) would come into pla y according to which the appellants having selected and appointed earlier to the private respondents, their position in the seniority list ought to have been pl aced above the private respondents. 10. Refuting the contention of the appellants, Mr AK Goswami, learne d senior counsel appearing for the private respondents, submits that the selecti on to the posts in question was made by the Commission on the basis of the initi al advertisement No 29 of 1996 dated 26.3.97 wherein it was specifically mention ed that two categories of vacancies would be filled up, three by way of direct r ecruitment through competitive examination and nine by limited departmental exam ination. Subsequent notification dated 3.7.97 being advertisement No 6 of 1997-9 8 is only the modified form of advertisement No 29 of 1996 dated 26.3.1997, by w hich the last date of submission of applications was extended and also the sylla bus of competitive examination was published and the private respondents having selected and appointed against the quota fixed for direct recruitment, their sen iority should be fixed in terms of Rule 27(3) of the Rules. The learned counsel further submits that there has been no breakdown of quota / rota system in the f acts and circumstances of the present case and the respondent authorities have r ightly published inter-se seniority list upon proper and correct interpretation of the relevant service rules. The learned single Judge having rendered the deci sion by considering all prose and cons of the matter, it requires no interferenc e in this appeal. The learned GA, Mizoram, Mr AK Sarma, endorsing the submission s made by Mr Goswami further referred to the affidavit filed by the State on 13. 8.2008 disclosing number of officers recruited since the commencement of 1991 Ru les both by way of direct recruitment and by promotion through the limited depar tmental examination and submits that there has been no breakdown of quota rules and the same had been maintained by the authorities. May be at some point of tim e there occurred a slight variation but there is no total break down of the quot a rule, submitted by Mr Sarma. 11. Submissions of the counsels received the due attention of the Co urt. In order to appreciate the contention made on behalf of the appellants, we have carefully scrutinized the provisions of the Rules as well as the related ad vertisement for the posts. As indicated hereinbefore, provision in Rule 6 is sub stantive in nature specifying the quota for the direct recruits to the extent of 25 percent as well as for promotion by way of selection to the remaining 75 per cent. The procedure for competitive examination for appointment against 25 perce nt of quota vacancies is prescribed in Rules 8 and 9. Rules 11 and 12 provide fo r procedure for recruitment by selection of 75 percent of the substantive vacanc ies of the Junior Grade. The initial advertisement for filling up of 12 vacancie s out of which three vacancies were under 25 percent direct recruitment quota an d nine vacancies by way of limited departmental examination was made on 26.3.77. This advertisement was partially modified vide advertisement No 6 of 1997-98 is sued on 3.7.97 whereby the last date of submission of applications was extended upto 17.7.97 from 9.5.97 as originally fixed. In the advertisement No 6, the sy llabus for competitive examination was also published. Subsequent advertisement No 6 dated 3.7.97 is not independent one but is a continuation and part and parc el of the original advertisement No 29 of 1996 dated 26.3.97. 12. The scope and relevant criteria for selection for appointment u nder both the categories are necessarily different, the source of recruitment b eing different ; one being from fresh candidates and the other from the experien ced departmental candidates. Accordingly, it is but natural that results of such examination may not be published simultaneously. As a result, although the Comm ission published the result of limited departmental examination recommending the appellants on 10.9.97 pursuant to which they were appointed on 16.10.97, the pr ivate respondents were recommended on 16.12.97 and were appointed on 30.3.98. T he same, however, would not make any difference as sought to be projected by the appellants. Recommendations for both the categories were made, in fact, pursuan t to the same advertisement dated 26.3.1997 and on that count the claim of the a ppellants to have a marched over the seniority of the private respondents is no t tenable. Consequently, the submission of Mr Misra that the provision of Rule 2 7(I) of the Rules would be applicable for determining inter-se seniority of the appellants they having joined prior to the private respondents fails, on the fa ct of their placement in appropriate position as per rotation. 13. Referring to the list of Junior Grade Officers recruited since t he year 1991 to 1997 as reflected in the list submitted by the State respondents by way of affidavit, Mr Misra next submits that perusal of the said list would disclose that the quota in respect of promotion and direct recruitments had not been maintained by the authorities and the net result of such failure is a total break down of the quota Rules, making thereby the rota rules non-applicable. In support of his contentions, the learned counsel has referred to the following d ecisions of the Apex Court. 1) A Janardhan Vs Union of India and others, reported in (1983) 3 SCC 601, 2) PS Mahal and others Vs Union of India and others, reported in (1984) 4 SCC 545, 3) G S Lamba and others Vs Union of India and others, reported in (1985) 2 SCC 604, 4) Suraj Prakash Gupta and others Vs State of J & K and others, reported in (2000) 7 SCC 561. 14. We have scrutinised the said list referred by Mr Misra wherein w e find that in 1991 six officers were appointed by way of promotion and in the y ear 1993, the number of such promotees were three. There is no direct recruitmen t in the year 1991 and 1993. In the year 1994 and 1997 the number of direct recr uit officers were two and number of promotees were eight, respectively. The app ellants were appointed by way of promotion wherein the respondent Nos 3, 5 and 6 were appointed by way of direct recruitment. Although in the year 1991 and 1993 there were slight deviation in appointment in the quota of direct recruitment b ut the same was sought to be maintained and balanced in the year 1994 by appoint ing two persons by direct recruitments against their 25% quota. Subsequent there to, however, when the turn of the appellants and the respondents came in, the re spective quota were maintained. 15. In the case of Janardhana (supra), on the fact and circumstances of that case, the Apex Court observed that the recruitment was made in relaxati on of the quota rules. Once the quota rule is relaxed rota rules goes and in the absence of any other rules coupled with any executive instruction, continuous o fficiation would be only criteria for determination of inter-se seniority. Even where the recruitment to a service is from more than one source and a quota is fixed for each service, the appointment is made to meet the exigencies of servic e exceeding the quota from the easily available source of promotees because the procedure for making recruitment from the market by direct recruitment is long, prolix and time consuming. The government for exigencies of service and for eff icient administration, promotee person easily available because in a hierarchica l service one hopes to move upward. After the promotee is promoted and continuou sly renders service and is neither found wanting nor inefficient and is discharg ing his duty to the satisfaction of all. a fresh recruit from the market, years after promotee was inducted in the service, comes and challenges all the past re cruitments made before he was borne in service and some decisions especially the ratio in Jaisinghani case (AIR 1967 SC 1427) and as interpreted in two BS Gupta cases ((1973) 3 SCC 116) gives advantage to the extent of the promotee being pr eceded in seniority by direct recruit who enters service long after the promotee was promoted. When the promotee was promoted and was rendering service, the dir ect recruit may have been in school or college going boy. He emerges from the ed ucational institution, appears at a competitive examination and starts challengi ng everything that had happened during the period when he has had nothing to do with service. Accordingly, the Apex Court observed that it is, therefore, time t o clearly initiate a proposition that a direct recruit who comes into service af ter the promotee was already unconditionally and without reservation promoted an d whose promotion is not shown to be invalid or illegal according to relevant st atutory or non-statutory rules should not be permitted by any principle of senio rity to score a march over a promotee because that itself is arbitrary and would be violative of Articles 14 and 16. In P S Mahal (supra), the Apex Court observed at paragraph- 32 o f the judgment that there is no inherent vice in the quota rule being operated through the rotational rule of seniority. Where the rotational rule is to be ado pted and relative seniority of the promotees has to be determined on the basis o f a roster maintained in accordance with the quota rule. When promotion of an of ficer is made within his quota, he is fitted against the vacancy reserved for pr omotees from his source and his seniority is reckoned from the date when such va cancy arose. But this rotational rule of seniority can work only if the quota ru le is strictly implemented from year to year. As pointed out by Palekar, J, in B ishan Sarup Gupta Case (AIR 1972 SC 2627), some slight deviation from the quota rule may not be material but if there is enormous deviation, other consideration s may arise. It is further observed that if the rotational rule of seniority is to be applied for determining seniority amongst officers promoted from different sources, the quota rule must be observed and deviation from the quota rule in m aking promotions is bound to create hardship and injustice and result in impermi ssible discrimination. In G S Lamba (supra), the Apex Court reiterating the observations made i n Janardhana case (supra) as indicated above, observed from the facts of that c ase that the provision prescribing quota of direct recruits and promotee was put in a cold storage for a long time. The contention of the petitioner in that cas e, inter alia, was that there was massive departure from the quota and rota rule , the seniority rule was inextricably intertwined with the quota rule, if given effect to would be unjust, unfair and would be violative of Article 14. In that case, the promotees were although appointed regularly, they were allowed to occu py the position fixed for direct recruits for long period and accordingly, it wa s held that it must be admitted that the relevant recruitment rule was relaxed i n their favour. In Suraj Prakash Gupta (supra), it was held that the authority in not making any direct recruitment after 1984 and by restricting direct recruits to 1 0% rather than the permissible 20% and by deliberately promoting the Junior Engi neers to the other 10% quota of the direct recruits, the State government had ac ted in a biased manner. Under the relevant rules when suitable candidate are not found for promotion, the posts are to be filled up by direct recruits vice vers a. It was held that there must be evidence that suitable candidates were not ava ilable for direct recruitment. Such non-availability cannot be inferred when as a fact not even a reference by an advertisement was made. In the said facts it w as held that there was no breaking down of the quota rule. 16. In the awake of the pronouncement of the Apex Court noted above and the facts that have emerged from the pleadings of the present case and takin g note of the number of officers promoted and appointed from both the quota from 1991 till 1998, we do not find that there has been enormous deviation in making appointment so as to come to a finding the quota rule has broken down as sought to project by Mr Misra. Little deviation will not be sufficient enough to arriv e at the conclusion by the writ court that the respondent authorities have blata ntly violated the quota rule as provided under section 6 of the 1991 Rules. Ther e is wide gulf of difference between little deviation and total violation of par ticular provision of Rule justifying interference. We are of the opinion that th e facts and circumstances of the case as alleged do not disclose that there has been total violation of quota Rules in the instant case. 17. In view of above discussions and findings, it is now to be consi dered whether the impugned inter-se seniority list is liable to be interfered wi th or not. Although nine vacancies were advertised for appointment by way of lim ited departmental examination to fill up 75 percent quota under Rule 6(b), only 8 officers were appointed and one vacancy could not be filled up due to lack of qualified candidate. Hence, in terms of the advertisement No 29 of 1996 dated 26 .3.1997, eight persons were recruited against 75 percent quota and three officer s were appointed against 25 percent quota of direct recruitment. The mandate of the Rules is that 25 percent of the vacancies would be filled up by way of direc t recruitment and the remaining 75 percent by way of limited departmental examin ation and, as such, the first position in the seniority list in a block of four goes to the direct recruits. Consequently, the fixation of the seniority positio n of the respondent Nos 3, 4 and 5 at serial Nos 12, 16 and 20 of the final inte r-se seniority list cannot be faulted with. It is further pertinent to note that both the appellants and the private respondents are beneficiaries of the same r ecruitment process initiated vide advertisement No 29 dated 26.3.1997. 18. In view of the foregoing discussions, we do not find any merit in this appeal, consequently, the appeal stands dismissed. 19. No costs.