Case: T.N. Saxena and Others Vs. State of Uttar Pradesh and Others

or turn, the direct recruits vacancy arose. Seniority will depend on the length of continuous officiating service and cannot be upset by later arrivals from the open market save to the extent to which any excess promotees may have to be pushed down as indicated earlier.+ + + +Seniority, normally, is measured by length of continuous, officiating service-the actual is easily accepted as the legal. This does not preclude a different prescription, constitutionally tests being satisfied.+ + + +Promotees regularly appointed during period in excess of their quota, for want of direct recruits (reasonably sought but not secured and because tarrying longer would injure the administration) can claim their whole length of service for seniority even against direct recruits who may turn up in succeeding periods.Promotees who have been fitted into vacancies beyond their quota during the period B-the year being regarded as the unit-must suffer survival as invalid appointees acquiring new life when vacancies in their quota fall to be filled up. To that extent they will step down, rather be pushed down as against direct recruits who were later but regularly appointed within their quota."7. This case clearly laid down three important principles.(1) Normal rule is that seniority should be measured by the length of continuous officiating service unless a contrary intention appears from the rules.We have already shown from the Rules framed by the Government that the length of service was determined as the prime criteria for determining the seniority.(2) Promotees regularly appointed during a particular period in excess of their quota for want of direct recruits can claim their whole length of service for s eniority even against direct recruits who may turn up in succeeding periods.(3) Promotees who had exceeded their quota would have to be pushed down to accommodate direct recruits coming after their appointment.The case of respondents 2 to 5 clearly falls within the first two principles.8. The admitted position is that respondents 2 to 5 had not exceeded their quota of 50% when they were promoted as Senior Marketing Inspectors. In fact, they were promote d as Senior Marketing Inspectors long before the Government evolved the policy of filling up the posts of Senior Marketing Inspectors by direct recruits. It is also clear that none of the respondents had encroached on the 50% quota which w as reserved for direct recruits under the new Rules framed by the Government.9. In these circumstances, therefore, it was not open to the Government to prepare a seniority list by pushing the promotees far below the position of seniority which they would legally occupy merely to accommodate the direct recruits. The rule of alternate seniority does not mean that the genuine seniority based on length of service by a previous employee should be completely overlooked or obliterated.10. Reliance was, however, placed on an earlier decision of this Court in Bishan Sarup Gupta etc. v. Union of India and Ors.11. In this case also it was clearly held that the promotees could be pushed down only if they had exceeded the q uota allotted to them. In the instant case not only the respondents 2-5 did not exceed their quota but had secured much higher promotions by the time the direct recruits came to be recruited and had to be reverted to lower posts in order t o accommodate the direct recruits. Such a gross injustice, in our opinion, cannot be countenanced by the rules or orders made by the Government nor can such a course of action be spelt out from Bishan Sarup Guptas case (supra).In B. S. Yadav and Ors. v. State of Haryana and Ors. the earlier decision of this Court in Chauhans case (supra) was reiterated and Chandrachud, CJ speaking for the Court observed thus:"Is it proper and fair to defer the confirmation of the promotees merely because direct recruits are not available at that point of time so as to enable the High Court to make confirmations from both the sources by rotation ? This, precisely, is what the High Court has done by t he impugned notification dated 25-8-1976 and that is the reason why it has not confirmed ten more promotees in Punjab, for whom vacancies are available within the quota of promotees.... ... ...What is relevant is the decision of the Court that the quota rule will be enforced at the time of initial recruitment and not at the time of confirmation ?... Seniority of promotees, according to this decision, could not be upset by later arrivals from the open market, save to the extent to which any excess promotees have to be pushed down."12. It is, therefore, clear from an analysis of the decisions of this Court cited before us that the quota rule and the rota rule must be applied in a practical fashion so as not to cause injustice to any employee. In the instant case, as the Government by virtue of the impugned seniority list had completely upset the seniority of respondents 2 to 5, the principles governing the order were directly opposed to what has been held and pointed out by this Court. The High Court, in our opinion, was fully justified in quashing the seniority list.13. Lastly, it was contended that the High Court while striking down the seniority list has not struck down the Government Order which had fixed the rota and the quota rule. As indicated above, if the rota and the quota rules are properly interpreted, as held by this Court in the cases cited above, the Government order cannot be said to be bad or legally invalid. The defect lay in the Government itself misconstruing its own order while issuing the seniority list, which error was rightly corrected by the High Court.T he Government shall now issue a fresh seniority list in the light of the observations made and principles enunciated by this Court and the High Court so as to avoid any reversion of promotees who had been promoted within their quota as senior Marketing Inspectors or above.14.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]A perusal of this letter would clearly show that the quota of the promoted Senior Marketing Inspectors was not at all touched or altered and even the age-limit for the candidates who had been promoted was extended upto 40 years and it is not disputed that respondents 2 to 5 were within thatHigh Court has rightly construed the aforesaid Rule of seniority to connote that appointments already made by departmental promotion to substantive posts would not be affected by the direct recruits coming subsequently through the Public Service Commission. Reliance was, however, placed by the appellants on the 2nd paragraph of the Rule which stated that the combined list was to be prepared by taking candidates alternately from the list of promoted candidates and direct recruits. This clause has to be interpreted rationally so as to advance the real object of the Government which was merely to enlarge the area of recruitment of Senior Marketing Inspectors without affecting the persons who had already been promoted to the higher post long before even the policy of taking direct recruits through Public Service Commission was born. Unfortunately however after the direct recruits were taken as Senior Marketing Inspectors, sometime after 1 970 they were put above respondents 2 to 5 who, by the time the direct recruits were appointed, had already been promoted even to a higher post, viz., Deputy Marketing Regional Officers. The High Court relied on a Government order setting out guidelines relating to seniority which has already been extracted above.Perhaps the Government was under the impression that as the quota of 50% was reserved for direct recruits and they had come through competitive examination with higher qualifications, they would have to take precedence over the promotees even though the promotee had occupied the post in their own quota long before the direct recruits appeared on the scence. Under this erroneous impression the Government issu ed the impugned seniority list of 1977 which has, in our opinion, rightly been quashed by the Highfirst point raised by the counsel for the appellants was that in view of the fact that the direct recruits possessed a higher qualification and were recruited through the Public Service Commission, they had to be given priority in respect of seniority over thewas further argued that as a result of the Government Orders, the direct recruits had to be adjusted alternately with the promotees even though the promotees had been appointed in their own quota long before the direct recruits joined the service. We are, however, unable to agree with this somewhat broad and ingenious argument. It is true that where there are two sources of recruitment and the Rules expressly provide that one source would have precedence over the other, then the position as contended by the counsel for the appellants would have to be accepted. In the instant case, we are unable to find any such inhibition or prohibition in the order passed by theis, therefore, clear from an analysis of the decisions of this Court cited before us that the quota rule and the rota rule must be applied in a practical fashion so as not to cause injustice to any employee. In the instant case, as the Government by virtue of the impugned seniority list had completely upset the seniority of respondents 2 to 5, the principles governing the order were directly opposed to what has been held and pointed out by this Court. The High Court, in our opinion, was fully justified in quashing the seniorityit was contended that the High Court while striking down the seniority list has not struck down the Government Order which had fixed the rota and the quota rule. As indicated above, if the rota and the quota rules are properly interpreted, as held by this Court in the cases cited above, the Government order cannot be said to be bad or legally invalid. The defect lay in the Government itself misconstruing its own order while issuing the seniority list, which error was rightly corrected by the High Court.T he Government shall now issue a fresh seniority list in the light of the observations made and principles enunciated by this Court and the High Court so as to avoid any reversion of promotees who had been promoted within their quota as senior Marketing Inspectors or above.