Case: B.S. MURTHY &amp; ORS Vs. A. RAVINDER SINGH &amp; ORS

2. Recruitment to the posts of Inspectors of Central Excise is from amongst two channels- one, direct recruitment and the other, by promotion from in-service candidates: in accordance with the provisions of the Central Excise and Land Customs Group-C Recruitment Rules, 1979 (hereafter the 1979 Rules or the Rules) framed by the President of India under proviso to Article 309 of Constitution of India. The ratio between the direct recruits and the promotions - from amongst various in-service cadres on the ministerial line- was fixed under the Rules at 75%:25% (or 3:1). The Rules however, did not provide guidance for determination of inter se seniority of direct recruit inspectors (DRIs) and promotee inspectors (PRIs). Seniority lists were prepared on the basis of executive instructions issued by the Government of India from time to time. It is an undisputed fact that inter se seniority was governed by an office memo (Office Memo No. 9/11/55 RSP dated: 22.12.1959) dated 22.12.1959 (hereafter 1959 OM) stipulating general guidelines to determine the seniority of various category of employees in the Central Secretariat. The Central Excise Department too followed it. The 1959 OM stipulated that seniority was determinable by the order indicated at the time of initial appointment (and not date of confirmation). Permanent Officers of each grade were to be ranked seniors to those officiating to that grade. The inter se seniority of the direct recruits was to be determined by the order of merit in which they are selected for such appointment on the recommendations of the U.P.S.C. or such selecting authority. Paras 2-5 of the 1959 OM provided the principles for determining inter se seniority of direct recruits and promotees. In the light of experience, the 1959 OM was changed, and another OM was issued, on 07.02.1986 (OM No. 35014/2/80- Estt. (D), dated: 7.2.1986) (hereafter 1986 OM).3. Five Revenue Inspectors, from the promotion cadre (hereafter called generically also- apart from PRIs as promotees), promoted in 1983-1984 filed an application (O.A.NO. 156/1986), challenging the inter se seniority list dated 08.07.1985 (hereafter the 1985 list) issued by the department on the ground that the length of their continuous service was not taken into consideration while fixing seniority. This application however did not implead the direct recruit employees; it was allowed on 05.07.1988 (hereafter CAT 1988 order). CAT directed the department to recast seniority in accordance with the 1986 OM after giving notice to the affected parties. A revised list was thereafter issued. DRIs, whose seniority was affected by the revised seniority list filed review applications (R.A. No. 29/1994 etc) in the disposed of applications. The CAT reiterated its main order, dated 05.07.1998 (hereafter CAT review order). The department then issued a final seniority list (as on 1.1.1992) on 30.4.1993 (hereafter 1993 final list). Those promoted before 1986 also requested the department to fix their seniority in terms of the CATs 1998 order.4. CATs 1998 order was in the context of the 1986 OM, which was in- applicable to pre-1986 PRIs. Thereafter, the matter was referred to the Central Board of Excise and Customs (CBEC), which apparently clarified that the procedure of fixation of seniority notified in 1986 OM was to be applied to pre- 1986 promotees too. A seniority list was then prepared in respect of the officers appointed prior to 1986 on the lines of 1986 OM. At this point, the DRIs filed Review application in R.A. No. 103/1993 against the 1993 final list.5. The CAT, in an order doubted the basis of its previous decision and referred the batch of matters to a Full Bench- on the issue as to whether 1986 OM was prospective or retrospective. The Full Bench by its order clarified that the 1986 OM only operated prospectively from 1.3.1986. On the basis of the finding of the Full Bench, the tribunal heard the review applications along with O.A. Nos. 1323/ 1993, 285/ 1994 and OA 906/1994. It is noteworthy that the Central Government preferred a Special Leave Petition to this court, against the CATs order in O.A.NO. 156/1986 which was dismissed as time-barred.6. The tribunal considered the matter and the cases were disposed of by a common order dated13.2.1997 recording the following conclusions:(i) The O.M dated: 07.02.1986 was prospective;(ii) Pre- 07.02.1986 inter-se seniority was to be regulated in accordance with 1959 OM;(iii) There was no break-down of the quota rule: The 1959 O.M. was to be followed.(iv) Cases of those who officiating as Inspectors prior to 01.03.1986 but regularised after that date had to be individually decided after determining the nature of officiation, nature of the post, (to which officiation related) and the provisions of OM of 1959 and could not be generalised.(v) Pre 01.03.1986 cases where the selection process -for direct recruitment- but where appointment was made after that date were covered by the OM dated: 7.2.1986.7. Based on these findings, the 1993 final list was quashed; the department was directed to prepare another list, afresh. To comply with the order, a special cell headed by the Superintendent of Central Excise was formed. A new final seniority list (dated 15.10.1997-hereafter 1997 list) was issued based on recommendations of the special cell; it was declared as final on 1.1.1992. This 1997 final seniority list became the subject of scrutiny in RA 56/ 1998 in O.A.No.1323/1993 filed by the PRIs. These review applications were dismissed by an order dated 27.8.1999. CAT was however of the opinion that the matter had to attain a quietus to the long pending issue; it suggested the setting up of a committee consisting of senior Commissioner as chairman to arrive at consensus duly associating the representatives of DRIs and promotees. Any difference of opinion, was to be recorded in the note and final decision was to be left to the Chief Commissioner, who is the cadre controlling authority.8. In due compliance with the order, a committee was formed. The CAT, in the meanwhile, disposed of the pending proceedings on 30.3.2000 (O.A.No. 429/1998, which challenged the final list of 1997) taking note of the status report by the department, regarding preparation of the seniority list, based on the submission that the final decision of the Chief Commissioner was awaited.9. The cadre controlling authority, considering the seniority list prepared by the committee circulated a tentative seniority list as on 01.01.2002 calling for objections. These objections were overruled and the final seniority list was published on 7.8.2002. This list was questioned by the promotees, who filed O.A. No. 938/ 2002 etc. The PRIs plea was that the seniority list finalised was not in conformity with the directions issued by CAT in O.A.NO. 1323/ 1993 as well as the principles in the 1959 and 1986 OMs. The department as well as the unofficial respondents, that is, DRIs, resisted the proceedings. The departments position was that the procedure adopted was valid, in accord with the rules and that the vacancy position from time to time was taken into consideration. The DRIs contended that in fact PRIs occupied more than 25% quota and that the litigation was needlessly continued.10. CAT, in its order dated 29.12.2000, considered the submissions and the record, and held that:(i) The direct recruit/promotion Register of Inspectors, maintained in the office and forwarded to the Hyderabad-I Commissionerate was an authentic document which discloses the actual vacancies that arose in each year during the period from 1984-1991 and the exact ratio of 3:1 of DR and PR quota respectively;(ii) There were no excess promotions during the years 1983 to 1991; 25% of actual vacancies arising every year during that period were for the promotees. No direct recruit vacancy for any year was filled by promotees;(iii) The indents placed with, the Staff Selection Commission for the recruitment of DRs were only for a part of vacancies (due to partial, ban etc.) and not for the exact 75% of the actual vacancies available in each year. There were no instances of suppression or under-reporting of vacancies available for direct recruits out of the permanent cadre strength in any year, to help the promotees. There was consequently no justification for invoking para 5 of the O.M. of 1986. The department wrongly inferred that there were excess promotions by wrongly estimating the promotee quota on the basis of the indents placed for direct recruitment;(iv)(a) The date of appointment of direct recruits the date for counting seniority- it is not from the date of receipt of the dossiers from the recruiting authorities or the date of recommendation. Resultantly seniority of direct recruits appointed after 1.3.86 is to be revised only from the date of their respective appointments but not earlier to 1.3.1986 as is wrongly done in the impugned seniority list,(b) Direct recruits of 1992 were to be given seniority only in that year but not in 1991 as was wrongly done in the impugned seniority list;(v) The seniority of five applicants in O.A.NO. 156/86 originally fixed in terms of the order, had to be restored and could not be altered.(vi) Those promoted ad hoc basis in any year in the vacancies available to them were eligible for seniority from the date of their continuous officiation, if -they were promoted within their eligible quota of that year under the Recruitment Rules;(vii) Those promoted in 1983 against 17 posts diverted from Shillong, were entitled to seniority in terms of 1959 O.M;(viii) Of 137 promotees regularised on 27.10.1988, seniority of those applicants regularised under the earlier order in 1985 is to be fixed prior to 1.3.1986, on the said earlier date of their regularisation in 1985;(ix) Seniority of promotees functioning in temporary posts not forming part of the cadre, is to be fixed from the date of promotion/ appointment.11. Accordingly, the CAT allowed the applications and set aside the seniority list prepared as on 01.01.2002. The department was directed to revise and refix the seniority list in the cadre of Inspectors in tune with the findings and the order dated 13.2.1997 in O.A.NO. 1322/1993. Another direction to ascertain number of vacancies, which arose each year for working out DRIs and PRIs in the ratio of 3:1 on the basis of the direct recruit/promotion Register maintained during the 1991-1994 as well as the remaining period subsequent to 1999- on the basis of the authentic records maintained in the office was issued.12. Aggrieved by CATs order dated 29.12.2003 the DRIs and the Central Government filed writ petitions before the High Court, which resulted in the impugned judgment. The High Court held that the vacancy register had no relevance for the purpose of promotion of in-service candidates and such promotions could be only in proportion to the respective quota, based on indents placed by the department with the Staff Selection Board for direct recruitment. It also held that length of continuous service followed by regularisation cannot be counted for the purpose of seniority since the quota rule had not been infringed. It also held that validity of 1986 OM was not challenged in the applications by the promotee inspectors. It therefore, upheld the impugned seniority list dated 22.07.2002.

Reasoning:
31. The rules in question, that is, 1979 Rules prescribes that recruitment to the post of Inspectors is from two sources: direct recruitment (to the extent of 75% of the cadre) and promotions (to the extent of 25% of the cadre). Promotions are made from seven feeder grade cadre posts: Upper Division Clerks (UDCs)/Steno Grade III; UDCs with a total of 13 years combined experience as UDCs and Lower Division Clerks (LDCs); Stenographers Grade II; Stenographers Grade II or Grade III with combined experience of 12 years; Woman Searcher with 7 years experience; Draftsman with seven years service in the grade. The rules are silent about the principle on which inter se seniority of DRIs and PRIs is to be fixed.In terms of the rules, ratio for the two sources is three candidates from the direct recruitment channel and one candidate from the promotional channel has to be resorted to. As mentioned earlier there is no governing rule meant to guide the fixing of inter-se seniority between the DRIs and PRs. That was done in accordance with the executive Office Memorandums.41. The record in the present discloses that the Central Board of Excise and Customs had issued three directions, with reference to filling up vacancies in the cadre of Inspectors. The first letter dated 9.3.1988 (F.No.12034/19/SCC 87 -Ad.111,B, dated 9.3.1988) directed the department to fill up only 12 vacancies as on 1.2.1988 out of 20 vacancies available for direct recruitment. The second letter dated 4.7.1988 (F.No. A.12034/ SR/ 18/ SCC 88 Ad.III B dated 4.7.1988) directed the respondents to fill up only 18 posts by direct recruitment out of 37 posts available as on 28.2.1989. The last, and third letter (F. No. A. 12034/SR I 181 SCC 88 Ad. III B) dated 29.3.1989 directed the department to fill up only 15 vacancies by direct recruitment against 27 anticipated vacancies up to 28.02.1989. A cumulative reading of these three letters would indicate that for the relative period, though 84 vacancies arose (were available) during the period (1988-89), only 45 were permitted to be filled up.42. The other important aspect is that at the relevant time, only 10% of the direct recruit vacancies could be filled by compassionate appointment, in terms of the extant policies. However, during the same period 50 compassionate appointments were made. Similarly, 24 vacancies were filled by appointments under the sports quota. 39 vacancies were filled by inter Commissionerate transfers. Thus, in all 123 vacancies earmarked for DRIs were filled through these modes (i.e. compassionate appointment, sports quota and inter Commissionerate transfers).43. From the above facts it is clear that for some of the years, there was a partial ban on filling up of vacancies by DRIs and in addition to those, appointments were also made through different modes but the same were not reported. The department position in adopting such practices is not of an unbiased employer; it is clearly erroneous. On one hand the department contends that the PRIs vacancies were to be in proportion to those reported vacancies of the DRIs- to the SSC and on the other hand, it did not report the correct number of vacancies recruited against the DRI quota, such as those appointed under the compassionate appointment quota and the sports quota. It is nobodys case, nor can it be,that such vacancies were filled from the PRIs quota. The appointments had to be adjusted against the DRI quotas.48. The decision in Aghore Nath Dey was one where the claim was by persons granted ad- hoc, temporary appointments for a fixed period, which was extended from time to time till their regularisation on 26-2-1980, by relaxation of the condition of selection by the Public Service Commission, which was an express condition of their ad hoc appointment and a requirement for regular appointment under the 1979 Rules. The court held that assuming the relaxation was valid, they could be treated as regularly appointed only with effect from 26-02-1980 upon relaxation of conditions, and their resultant absorption in the cadre of Assistant Engineers, based on a rule framed at the same time under Article 309 providing for fixation of their seniority from that date. In such circumstances, this court, held that there was no foundation for the claim that they could be treated at par with the direct recruits, regularly appointed prior to 26-2-1980.49. In Devindra Prasad Sharma the rules governed the situation, instructing that inter se seniority was to be fixed in accordance with the ratio applicable, under the rules, for the two channels, from the date of appointment. This court held thatThe statutory rule 25(iii), as indicated above, clearly postulates that the inter se seniority of the direct recruits and the promotees has to be determined in accordance with quota and rotation. Accordingly, seniority was rightly determined as per the respective dates of appointment. Therefore, the rotation has to be considered as per the date of appointment and in accordance with the vacancy under the rules. Otherwise, the rule of rota- quota unduly gets disturbed.50. Suraj Prakash Gupta was a case, where the government relaxed the conditions, and regularized the services of ad-hoc promotees who were given appointment, against the vacancies that had to be filled by direct recruits. This court held, in such circumstances that:..the Government was merely carried away by sympathy to the promotees. By not making direct recruitment after 1984, by restricting direct recruits to 10% rather than permitting 20% and by deliberately promoting the Junior Engineers to the other 10% quota of the direct recruits, the State Government had definitely acted in a biased manner. There is any amount of justification for the grievance of the direct recruits that the State had passed an omnibus order on 2.1.98 regularising all ad hoc promotees (Electrical Wing) without consulting the Commission, by way of deemed relaxation, in a wholly arbitrary manner, counting the entire ad hoc service of promotion. Their illegal occupation of direct recruitment quota was not even noticed. Their eligibility or suitability was not considered. It is probable that even those who had bad ACRs were regularly promoted. The requirement of following quota for each year was not respected. The regularisations order dated 2.1.98 was therefore bad and was therefore rightly quashed by the High Court. (This declaration is confined to Assistant Engineers and Assistant Executive Engineers (Electrical Wing) - as stated under Point No. 2 of the High Court Courts judgment). We confirm the view of the High Court on this point. The result is that the promotees have to go through the Service Commission for getting into the gazetted category of Assistant Engineers. The Assistant Engineers have to go through DPC for promotion as Assistant Executive Engineers.51. Clearly in two judgments (Aghore Nath Dey and Suraj Prakash Gupta) the promotions were made in disregard of the rules; even in excess of their quota, and against direct recruit quota. In Aghore Nath Dey, the promotees claim was to seniority prior to their regularization – which was achieved through a special rule, inserted by way of amendment. The claim was that seniority should be given to the promotees, over the direct recruits, who had been appointed earlier. In Suraj Prakash Gupta, promotions were made in excess of the quota and as against posts that should have fallen due to direct recruits, in their quota. The ratio in these decisions is inapplicable, because there is nothing to indicate that the promotees (who were regularized in 1988) exceeded their quota. Furthermore, the departments pleading, specifically admits that the promotees were appointed against vacancies available to the PRI quota.52. This court, in K.V. Subba Rao & Ors. v. Government of Andhra Pradesh 1988 (2) SCR 1118   held that, promotion and seniority shall be reckoned from the date of appointment, not retrospectively from the date when the vacancy arose. M. Nirmala v State of AP 1986 (3) SCR 507   is a judgment, where the government issued an order, banning recruitment. Stop gap, ad-hoc promotions were given, to many employees, in 1974; they were eligible to be considered for regular promotion only after two years, subject to passing a test. Many of them sought relaxation, which was granted; they were ultimately regularized in 1978 without the test. They sought shifting of the date of promotion, to an earlier date, which this court held, was inadmissible:In 1973, the ban on recruitment through Public Service Commission was partially lifted. By G.O. Ms. No. 725 dated December 28, 1973, the Government of Andhra Pradesh directed the Public Service Commission to conduct a special qualifying test for recruitment in. Group IV services with a view to regularising the temporary appointments made during the ban period. One of the conditions of eligibility for appearing at the said qualifying test was, as fixed by the Public Service Commission, two years of service as on 1.1.1973. As the petitioners were appointed after April, 1974, the question of their appearing at the said qualifying test did not arise. It appears that those who appeared at the said test were all absorbed in the regular service. On the representation of the temporary employees who were not absorbed, the Public Service Commission conducted another special qualifying test as directed by the Government by G.O. Ms. No. 787 dated November 9, 1976. The petitioners could not avail themselves of the said test as they had not put in two years of service as on 1.1.1976 as fixed by the Public Service Commission.54. State of Uttaranchal & Ors. v Dinesh Kumar Sharma 2006 Supp (10) SCR 1 was a decision, where this court held that the seniority is to be reckoned not from the date when the vacancy arose, but from the date on which the appointment is made to the post. The judgment in AFHQ/ISOs SOs (DP) Association & Ors. V. Union of India (UOI) & Ors 2008 (3) SCC 331  distinguished Subba Reddy (supra) specifically in the context of periods when a ban in recruitment exists28. In M. Subba Reddy and Anr., etc. v. A. P. State Road Transport Corporation and Ors. AIR 2004 SC 3517 , relied upon by Mr. L. N. Rao, learned senior Advocate appearing on behalf of AFHQ Civil Service (Direct Recruits-Gazetted) Officers Association, this Court while dealing with inter se seniority between direct recruits and promotees to the posts of Assistant Traffic Manager (for short ATM) and Assistant Mechanical Engineer (for short AME) in A.P. State Road Transport Corporation, held that rota rule is inbuilt in the quota prescribed in Item 3, Annexure A (Section B) to A.P. SRTC Employees (Recruitment) Regulations, 1966 and could not be deviated from. In that case, the appellant promotees were promoted to the posts of ATMs/AMEs temporarily under Regulation 30 as there were no direct recruits available. They were promoted subject to being reverted to substantive posts on approved candidates becoming available. Regulation 34(6) states that the revertees shall subsequently be considered for repromotion against the quota of vacancies reserved for promotees. Therefore, one has to read Regulation 3 of the A.P. SRTC Employees (Service) Regulations, 1964 with Regulations 30 and 34 of the Recruitment Regulations. It is only when such revertees are repromoted as per Regulation 34, they can be deemed to have been appointed to the posts of ATM or AME. Therefore, when the appellants were tentatively appointed to the post of ATMs/AMEs originally for want of direct recruits and to the posts reserved for direct recruits, it cannot be said that they were first appointed to that category within the meaning of Regulation 3 of the Service Regulations. Therefore, seniority had to be fixed between the direct recruits and the promotees strictly in accordance with the quota provided for in Item 3 of Annexure A (Section B). The said Regulations prescribe a quota of 1:1, which leads to rota for confirmation. The contention of the appellants before this Court was that they had a right to be promoted within their quota during the years 1981 to 1987, when vacancies for promotees quota became available. M. Subba Reddy, appellant in that case, was regularized from 27.12.1986 vide order dated 9.9.1988, when no direct recruits were available and, therefore, it was improper for the Corporation to place direct recruits above the promotees. The appellant submitted that in such a case the quota in Item 3(1) of Annexure A to the Recruitment Rules would not apply; that the said item prescribed only quota and not rota for seniority and that the direct recruits could not claim appointment from the date of vacancy in their quota before their selection . They added that seniority was dealt with only by Regulation 3 of the Service Regulations, 1964 and not by Regulation 34 of the Recruitment Regulations, 1966. That in view of the 15.9.1995 amendment, Regulation 34 referred to only allocation of vacancy and not for determination of seniority. A total ban for direct recruitment was imposed by the State from the year 1977 to 1988 and, thus, the purported quota-and-rota rule contained in Item 3 of Annexure A could not have been given effect to. The majority view of this Court was that where there is inaction on the part of the Government or employer or imposed ban on direct recruitment in filling up the posts meant for direct recruits, it cannot be held that the quota has broken down. We, with respect, do not support the view of the learned Judges that in the facts and circumstances of the case the quota has not broken down because of inaction on the part of the Government in imposing ban in filling up the posts meant for direct recruits. The appellants in the said case were promoted in a regular manner having been regularized in service with retrospective effect. Their services were not regularized from the date of their initial ad hoc promotion but with effect from the date when the vacancies became available. Their services after regularization would not be by way of a stop- gap arrangement. The direct recruits who were appointed in the years 1990 and 1991, in terms of Item 3 of Annexure A would be considered to have been appointed only after their successful completion of training. They were borne in the cadre in the years 1990-91 and, thus, prior thereto they cannot claim seniority. The learned third Judge, dissenting with the learned two Judges, has held that the direct recruit can claim seniority from the date of his regular appointment, he cannot claim seniority from a date when he was not borne in the service. Thus, the direct recruits of 1990 and 1991, by reason of the impugned seniority list, could not have been placed over and above the appellants-promotees because the purported quota and rota rule contained in Item 3 of Annexure A could not have been given effect to because the State Government had imposed total ban for direct recruitment from the year 1977 to 1988. In such a situation, the said quota rule became inoperative. We agree with the dissenting view of the learned Judge that in the facts of the case, the quota rule became inoperative because the direct recruits were borne in the cadre when they were appointed against the vacancies meant for them.The judgment in Pawan Pratap Singh v. Reevan Singh [2011 (2) SCR 831 - a view followed later, in State of U.P. v. Ashok Kumar Srivastava, (2014) 14 SCC 720  and, more recently, endorsed in K. Meghachandra Singh v. Ningam Siro (2020) 5 SCC 689  that seniority should not be reckoned retrospectively unless it is so expressly provided by the relevant Service Rules. The Supreme Court held that seniority cannot be given to an employee who is yet to be borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime. Also Dinesh Kumar Gupta & Ots v High Court of Judicature, Rajasthan 2020 SCC OnLine (SC) 420] considered several previous precedents, on the issue, including the Constitution Bench decision in Direct Recruit Class II Engg. Officers Assn. v. State of Maharashtra (1990) 2 SCR 900.  The correct position was summarized by Lodha, J. in the following manner:(i) The effective date of selection has to be understood in the context of the service rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be.(ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.(iii) Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules.(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.55. In a concurring opinion, Aftab Alam, J. reiterated the position and alluded to additional authorities on the subject and said:To the decisions referred to on this point in the main judgment I may add just one more in Suraj Parkash Gupta v. State of J and K (2000) 7 SCC 561] . The decision relates to a dispute of seniority between direct recruits and promotees but in that case the Court considered the question of antedating the date of recruitment on the ground that the vacancy against which the appointment was made had arisen long ago. In para 18 of the decision the Court framed one of the points arising for consideration in the case as follows:18. ... (4) Whether the direct recruits could claim a retrospective date of recruitment from the date on which the post in direct recruitment was available, even though the direct recruit was not appointed by that date and was appointed long thereafter?This Court answered the question in the following terms: (Suraj Parkash Gupta case)Direct recruits cannot claim appointment from the date of vacancy in quota before their selection80. We have next to refer to one other contention raised by the Respondent direct recruits. They claimed that the direct recruitment appointment can be antedated from the date of occurrence of a vacancy in the direct recruitment quota, even if on that date the said person was not directly recruited. It was submitted that if the promotees occupied the quota belonging to direct recruits they had to be pushed down, whenever direct recruitment was made. Once they were so pushed down, even if the direct recruit came later, he should be put in the direct recruit slot from the date on which such a slot was available under the direct recruitment quota.These decisions were reiterated, and followed in a three-judge bench judgment in P. Sudhakar Rao & Ors. v U. Govinda Rao & Ors (2013) 8 SCC 693  which ruled that seniority cannot be given to any appointee from a date anterior to his or her appointment, in the cadre.56. From the above discussion, it is clear that no appointee from any one channel (direct recruits or promotees) can lay claim to seniority from a date before her or his appointment. That being the position in law, it would be now necessary to consider the reasons which weighed with the High Court to hold that the promotees (in regular and substantive capacity from 1988) had to make way for direct recruits, who were appointed in 1991-92. Simply stated, the High Court was of the opinion that promotees had to be treated as occupying posts in excess of the quota allocated to them, on an application of the 1986 OM. Now, as a matter of fact the materials on record establish that there were promotee vacancies at a time when the ban on direct recruitment was in force (during 1984-1990). To the query dated 11-06-2007, the Commissionerate concerned, at Hyderabad stated, in its reply dated 30-08-2007, as follows:In this Commissionerate whatever vacancies occurred in a year, the same were divided in the ratio 3:1 during the period 1986 to 1990 and the share of vacancy which comes for direct recruit were reported to SSC and the promotee quota vacancies were filled up by holding DPC.The same letter also stated that:..the 25% promotee quota vacancies were washed (sic worked) out on the basis of actual vacancies available in each year.The reply further stated that all the promotions were made on regular basis. The rationale for the argument that promotions are to be treated in excess of the promotee quota, is that the requisite number of vacancies falling to the share of direct recruitment were not reported to the SSC. For this logic, Para 4 and Para 5 of the 1986 OM were relied upon.57. As is apparent, Para 4 is procedural, and talks of a vacancy register, which would contain a running account of the vacancies arising and being filled from year to year. This was deemed necessary, because of the Para 3 of the same OM which entails the procedure of bunching rule.58. Hence, it is essential to keep in mind that Para 5, (which has been the basis of the High Court judgment, to hold that the PRIs were in excess of their quota) was meant to cater to a contingency that is of underreporting direct recruit vacancies to the public service commission (in this case, the SSC) which resulted in an unfair advantage to promotees who would steal a march over such direct recruits, appointed later. It was in such contingencies, that is, of under-reporting vacancies, that the consequence of deeming promotions to be ad-hoc could be resorted to. If one keeps this perspective in mind, the correct direction of inquiry, (which in this courts opinion was undertaken by CAT) was to see what were the number of regular vacancies relative to the quotas, with specific reference to the vacancy register. This approach, however, was discredited by the High Court, which held that the vacancy registerat the most indicates the vacancy position in DRI/PRI cadre and it is not intended to confer the benefit of promotion on in-service candidates more especially when the promotions are to be effected with reference to the vacancies indented for D.R.ls. Therefore, the observation of the tribunal that only in case of detection of under, reporting/suppression the bunching process had to be adopted and in other cases the vacancies position vis- a-vis the promotion has to be identified from the vacancy register is untenable.59. As discussed, the materials on record indicate that promotional vacancies did exist, at the relevant period. There was a ban on direct recruitment. The reasons for the ban are now obscure; but the fact remains that it was in force for six years (1984-90). During this period, undoubtedly, no requisitions were made to the SSC for filling direct recruit vacancies. However, the linear logic, applied by the High Court, to conclude that by virtue of Para 5 of the OM of 1986, the promotions made during the same period had to be treated as in excess of the quota, because they were not in proportion to the requisitions for direct recruitment. This view is plainly fallacious, because it equates executive policy - of not filling vacancies, due to financial or other compulsions with deliberate underreporting, meant to result in unfair advantage to the PRIs. In the present case, direct recruitment through the SSC was not resorted to because of a ban, and not due to under-reporting. Thus, the contingency visualized in Para 5 never arose. Not only were promotions made within the quota, and were regular (as they were preceded by proceedings of the Departmental Promotion Committee, and culminated in regularization, in 1988), there were in fact regular vacancies, within the promotee quota.60. The existence of PRI vacancies is a matter of objective fact – as can be seen from the replies to the RTI queries (see f.n.10-12 supra). Those vacancies fell to the share of PRIs, in terms of the 25% quota earmarked for them, under statutory rules. In such circumstances, to say that those promoted, by resort to DPCs and regularized later, should be treated as ad-hoc promotees, would be contrary to express rules. In other words, by giving effect to Para 5 of the 1986 OM, (and treating the promotions as ad-hoc for purposes of inter se seniority), the statutory rules are virtually given a go bye. It is also contrary to the stated objective sought to be achieved by Para 3 of the 1986 OM, which is to present practice of keeping vacant slots for being filled up by direct recruits of later years, thereby giving them unintended seniority over promotees who are already in position, would be dispensed with. The promotions of the PRIs before this court therefore, have to be treated as regular. This court is of the opinion, that the reasoning of the High Court, in overlooking these aspects, is clearly in error.61. The other aspect – which the High Court ignored, is that a number of vacancies were filled from amongst the quota for compassionate appointment, and the sports quota. They were not reported to the SSC. In such circumstances, to treat the promotees as exceeding the quota set apart for them (though as a matter of fact, they were accommodated within the quota) is not warranted. Furthermore, the materials on record also show that though there was a ban on direct recruitment, it did not apply to vacancies which were to be filled up by way of promotion in terms of the Recruitment Rules.