Case: V. B. Badami Etc Vs. State Of Mysore &amp; Ors

165 to 1847 are promotees to whom were allotted to substantive vacancies arising from 1st November, 1956 to 1st December, 1957 on the basis of their continuous service in the cadre. There was no quota rule for the period 1st November, 1956 to 1st December, 1957. Therefore, neither the promotions of those persons not their relative seniority can be disturbed.32. Persons No. 185 to 213 are promotees. Persons No. 214 to 236 are direct recruits. Persons No. 237 to 280 are also promotees. From 2nd December, 1957 when the 1957 Recruitment Rules came into existence till 10th September, 1959, when the 1959 probation Rules came into force as State promoted many persons from Class II. Two-thirds of the total vacancies for the periods 2nd December, 1957 to 10th September, 1959 were promotional vacancies. Therefore, all person promoted to those two-thirds vacancies cannot be disturbed. Those promotees who are in excess of the two thirds vacancies will be pushed down to the vacancies in the subsequent period. The remaining one-third vacancies were for direct recruitment. Direct recruits equal in number to those one-third vacancies should be placed next after the promotees placed in the first two-thirds vacancies between 2nd December, 1957 and 10th September, 1959. If direct recruits are in excess of the quota they will similarly be shifted to the subsequent period.33. The next period is from 11th September, 1959 to 26th October, 1964. From 11th September, 1959 the promotional vacancies became one-third and direct recruitment vacancies became two-thirds. The excess promotees during the previous period will be first absorbed in the promotional vacancies and thereafter promotees during the periods will be absorbed. Again, if there would be excess promotions they will be shifted to the following period.34. The important principle is that 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. The result is that direct recruitment vacancies between 11th September, 1959 and 26th October, 1964 cannot be occupied by any promotees. The fact that direct recruits were confirmed on 26th October, 1964 will not rob the direct recruit of their quota which remained unfilled from 2nd December, 1957.35. The Government confirmed the direct recruits and the appellants by adjustment of vacancies within their respective quota and determined their seniority in accordance with Rule 2(b) of the Seniority Rules. Seniority is based on confirmation as full member of the service in the substantive vacancy.36. In S. C. Jaisinghanin v. Union of India, (1967) 2 S.C.R. 703, it was said that when the quota was fixed for the two source of recruitment the quota could not be altered according to exigencies of the situation. It was held there that the promotees who had been promotee in excess of the prescribed quota should be held to have been illegally promoted. In Bishan Sarups case (supra) it was held that when it was ascertained that not more than 1/3 of the vacancies were to go to the promotees and the rest to the direct recruits, the ratio was not made dependent on whether any direct recruit was appointed in any particular year or not. The promotees were entitled to 1/3 of the vacancies in any particular year, whether or not there was direct recruitment by competitive examination in that year.37. Two principle are established in the decision referred to. One is that quotas which are fixed are unalterable according to exigencies of situation. Quotas which are fixed can only be altered by fresh determination of quotas under the relevant rule. The other is that one group cannot claim the quota fixed for the other group either on the ground that the quotas are not filled up or on the group that because there has been a number in excess of quota the same should be absorbed depriving the other group of quota.38. In Bachan Singh and another v. Union of India others, (1972) 3 S.C.R. 898, the two appellants were promoted in the years 1958 and 1959. The respondents were appointed by direct recruitment in 1962, 1963 and 1964. The respondents were confirmed in their posts before the appellants. It was held that the direct recruits were confirmed against permanent vacancies within their quota. The earlier confirmation of direct recruits though appointed later was upheld on the ground that they fell within their quota of permanent vacancies.39. Subbaramans case (supra) on which the appellants relied also held that each quota would have to be worked independently on its own force. In that case the Assistant Executive Engineers who were initially entitled to 3/4th and subsequently to 2/3rd of the vacancies while Assistant Engineers who were entitled initially to 1/4th and subsequently to 1/3rd of such vacancies were held to be entitled to their respective quotas independent of the fact whether any person from one class or the other was promoted or not. It was illustrated by saying that if there were three vacancies in a year, two would go to the Assistant Executive Engineers and one would go to the Assistant Engineers and even if there were not eligible Assistant Executive Engineers who could be promoted to fill in two vacancies belonging to their quota, one vacancy is to be filled up by promotion of an Assistant Engineer, if he was eligible. Similarly, if two vacancies belonging to the quota of Assistant Executive Engineers are to be filled by Assistant Executive Engineers for want of availability of eligible Assistant Executive Engineers the appointment of Assistant Engineers to fill in those two vacancies would be irregular because they would have to be pushed down to later years when their appointment could be regularised as a result of absorption in their lawful quota for those years.40. For the foregoing reasons, we hold that the respondents No. 2 to 24 were entitled to the vacancies within their quota which had not been filled up and they are senior to the appellants.

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

Explanation:
0[ds]22. The contention of the appellants that the respondents were recruited to temporary vacancies is wrong for these principle reasons.23. First, the cadre here consists only of permanent posts. The cadre does not consist of any temporary post. The total number of vacancies between 2nd December, 1957 and 10th September, 1959 were 59. Under the quota 39 were promotional vacancies and 20 were direct recruitment vacancies. There were in fact 59 promotees. They were 20 in excess of their quota. There was, however, no direct recruitment during that period. Again, between 11th September, 1959 and 10th September, 1965 the total number of vacancies were 208. Under the quota system 71 were promotional vacancies and 137 were direct recruitment vacancies. There were in fact 168 promotees during the period. Therefore, 97 promotees were in excess of their quota. Out of the 137 direct recruitment quota only 20 were filled up during the period. In this background it appears that when in 1962 direct recruitment was made there were 20 direct recruitment vacancies in the quota which were not filled up. The promotees, however, being 20 in excess were not entitled to confirmation against the vacancies within the quota of the direct recruits. The promotees were promoted on officiating basis. Therefore, when the respondents were appointed by direct recruitment on probation under order dated 26th October, 1962 they were required to undergo training and probation, for a period of two years. In order to meet the audit objections by reason of lack of provision in the Recruitment Rules for training reserves the Government sanctioned 20 temporary posts to accommodate the probationers for the period of their probation. On the completion of the period of training there was no renewal of the temporary posts. Therefore, the temporary posts which were created for the direct recruits during their period of probation cannot be taken into account in working out the quota rule and for adjustment of seniority.24. It may also be stated here that the promotees had not been deprived of their appointment and they had not been subjected to any revision. The implementation of the quota rule has resulted in the adjustment of seniority consistent with the quota. The confirmation had been issued in the case of promotees and direct recruits having regard to the permanent strength of the cadre and the quota.25. Second, the advertisement of the Public Service Commission inviting direct recruits stated that the posts "are likely to be made permanent". The order of appointment of the respondent as Gazetted Probationers on selection by the Public Service Commission stated that the respondents were appointed as Probationer Assistant Commissioners. The order of appointment refers obviously to the 1959 Probationers Rules.26. Third, Rule 9 of the Mysore Government Servant Probation Rules states that a probationer who has been declared to have satisfactorily completed his probation has to be confirmed as a full member of the service at the earliest opportunity in any substantive vacancy which may exist or arise in the permanent cadre of the service in respect of which he has been recruited as a probationer. This rule excludes temporary posts from the cadre. It is, therefore, impossible to hold that the direct recruits were temporary employees outside the permanent cadre of the service.In working out the quota rule, these principles are generally followed. First, where rules prescribe quota between direct recruits and promotees, confirmation or substantive appointment can only be in respect of clear vacancies in the permanent strength of the cadre. Second, confirmed persons are senior to those who are officiating. Third, as between persons appointed in officiating capacity, seniority is to be counted on the length of continuous service. Fourth, direct recruitment is possible only by competitive examination which is the prescribed procedure under the rules. In promotional vacancies, the promotion is either by selection or on the principle of the seniority-cum-merit. A promotion could be made in respect of a temporary post or for a specified period but a direct recruitment has generally to be made only in respect of clear permanent vacancy either existing or anticipated to arise at or about the period of probation is expected to be completed. Fifth, 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 cannot claim any right to hold the promotional posts unless the vacancies fall within their quota. If the promotees occupy any vacancies which are within the quota of direct recruits, when direct recruitment takes place, the direct recruits will occupy the vacancies within their quota. Promotees who were 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 a case.The quota between promotees and direct recruits is to be fixed with reference to the permanent strength of 135 junior duty posts. Persons who were allotted the junior duty posts under the States Reorganisation Act are to be accommodated within the permanent cadre strength of 135 posts. If they are in excess of the number then the excess will have to be accommodated in the promotional vacancies during the subsequent period commencing from 2nd December, 1957 to 10th September, 1959.The important principle is that 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. The result is that direct recruitment vacancies between 11th September, 1959 and 26th October, 1964 cannot be occupied by any promotees. The fact that direct recruits were confirmed on 26th October, 1964 will not rob the direct recruit of their quota which remained unfilled from 2nd December, 1957.35. The Government confirmed the direct recruits and the appellants by adjustment of vacancies within their respective quota and determined their seniority in accordance with Rule 2(b) of the Seniority Rules. Seniority is based on confirmation as full member of the service in the substantiveif two vacancies belonging to the quota of Assistant Executive Engineers are to be filled by Assistant Executive Engineers for want of availability of eligible Assistant Executive Engineers the appointment of Assistant Engineers to fill in those two vacancies would be irregular because they would have to be pushed down to later years when their appointment could be regularised as a result of absorption in their lawful quota for those years.40. For the foregoing reasons, we hold that the respondents No. 2 to 24 were entitled to the vacancies within their quota which had not been filled up and they are senior to the appellants.