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

The facts of the case lie within a narrow compass and, in our opinion , seem to be concluded by several decisions of this Court, Respondents 2 to 5 had passed the High School Examination and entered the service of the Government as Marketing Inspectors under the establishment of Food &Supplies Department on various dates and were later confirmed on these posts. In fact, to begin with, the Department itself was temporary but was later on made permanent. It may be stated here that the post of Marketing Inspector was exempted from the scope of the Public Service Commission. The next higher post in the hierarchy of the Department was that of Senior Marketing Inspector and previous to the year 1964 these posts were filled entirely by promotion from Marketing Inspectors. As respondents 2 to 5 were already confirmed in their original post of Marketing Inspector, they were promoted to the rank of Senior Marketing Inspectors with effect from September 1964 and since then had been holding the post until their further promotion as Deputy Marketing Regional Officers in Juneappears that right from 7.12.44 upto Sept. 1964 the criteria for determining the seniority of the aforesaid employees was total length of service including identical and higher scale of pay. It is not disputed that respondents 2 to 5 fulfilled both the criteria mentioned above. Sometime in 1964, however, the Government took a policy decision that so far as the cadre of Senior Marketing Inspectors was concerned, the posts would be filled by two sources, viz., (1) promotion and (2) direct recruitment in the ratio of 50:50. As a result of this decision a very large number of posts were sanctioned to accommodate the direct recruits who were to be appointed through a competitive examination held by the Public Service Commission. The Government also ordered that henceforward the posts of Senior Marketing Inspectors should be brought within the purview of the Public Service Commission. We have mentio ned this fact expressly because one of points that was raised before the High Court by the appellants was that respondents 2 to 5 had not been cleared by the Public Service Commission nor were their cases referred to it. Nothing much turns upon t his point because it was not argued before us in the appeal. Moreover, as respondents 2 to 5 were confirmed hands question of taking the formal sanction of the Public Service Commission would be more or less inconsequential and could be given subsequently with retrospective effect. We might further state another undisputed fact-the posts of the Senior Marketing Inspector at the time of the new policy taken by the Government were increased and respondents 2 to 5 who had been promoted purely in the quota when the Government decided to recruit the other 50% by direct recruitment. This fact is rather important because it distinguishes the present case from some of the decisions of this Court on which heavy r eliance had been placed by the counsel for the appellants.The principles concerning the recruitment of the promotees and the direct recruits were contained in a letter of the Government (Annexure C to the petition) relevant portion of which may be extracted thus:"I am directed to address you on the above subject and to say that the post of Senior Marketing Inspector has been placed within the purview of Lok Seva Ayog with effect from 15 April 1964. The recruitment to this post will now therefore be made on the principles indicated below:(i) 50% of the posts will be filled by promotion from amongst the Marketing Inspectors and the remaining 50% by direct recruitment through Lok Seva Ayog.(ii) Educational qualifications for direct recruitment through Ayog will be graduate of a recognised University with preference to graduate in Agriculture.(iii) Age limit is 21 to 25 years. Age limit for departmental candidate for promotion will be 40 years. Officials who start officiating as Senior Marketing Inspector before the age of 40 years will, however, be considered for promotion.(iv) All permanent Marketing Inspectors who have put in 5 years service, permanent and temporary both, will be eligible for promotion. No educational qualification has been prescribed for promotion except that no one who has not got the minimum qualification shall be eligible for promotion."

Reasoning: 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.