B.S. MURTHY & ORS versus A. RAVINDER SINGH & ORS.
[2022] 19 S.C.R. 1, Supreme Court of India, 2022
Outcome: Appeal(s) allowed (Granted)
Segment: Issues
A
B
C
D
E
F
G
H
1
[2022] 19 S.C.R. 1
1
B.S. MURTHY & ORS.
v.
A. RAVINDER SINGH & ORS.
(Civil Appeal No. 3968 of 2009)
MARCH 15, 2022
[UDAY UMESH LALIT, HEMANT GUPTA AND
S. RAVINDRA BHAT, JJ.]
Service Law — Central Excise and Land Customs Group-C
Recruitment Rules, 1979 — Determination of inter-se seniority –
Recruitment to the post of Inspectors of Central Excise was from
two channels : Direct recruitments and promotion from in service
candidates – The ratio between direct recruit inspectors (DRI) and
promoted inspector (PRI) was 3:1 – The inter se seniority was
governed by an office memo dated 22.12.1959 – In view of the
experience, the 1959 OM was changed, another OM was issued,
on 07.02.1986 – Five promoters promoted in 1983-1984 filed an
application challenging the inter se seniority list dated 08.07.1985
on the ground that the length of their continuous service was not
taken into consideration while fixing seniority – CAT directed the
department to recast seniority in accordance with the 1986 OM –
CAT referred the batch of matters to a Full Bench, on the issue as to
whether 1986 OM was prospective or retrospective – Full Bench by
its order clarified that 1986 OM only operated prospectively from
1.3.1986 – Based on the findings of tribunal seniority list of 1993
was quashed – The cadre controlling authority circulated a tentative
seniority list on 01.01.2022 which was finally published on 7.8.2002
– The list was challenged by PRI and the CAT allowed the
applications and
set aside the seniority list – Central government
and DRI filed writ petition before the High Court – 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 quota, based on indents placed by the
department with staff selection Board for direct recruitment – Length
of continuous service cannot be counted for the purpose of seniority
– It upheld the impugned seniority list dated 22.07.2002 – In appeal
by PRIs, the main issue was regarding the application of Clauses 4
and 5 of the OM of 1986, whether the ratio of the PRIs has to be
A
B
C
D
E
F
G
H
2
SUPREME COURT REPORTS
[2022] 19 S.C.R.
drawn with respect to the indented vacancies for DRIs – Held: No
appointee from any one channel (direct recruits or promotees) can
lay claim to seniority from a date before her or his appointment –
Para 5 of the 1986 OM was meant to cater to a contingency that is
of underreporting direct recruit vacancies to the public service
commission 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 – Materials on record indicate that
promotional vacancies did exist, at the relevant period, there was a
ban on direct recruitment – During that period, no requisitions were
made to the SSC for filling direct recruit vacancies – However, High
Court was wrong in concluding that by virtue of Para 5 of the 1986
OM the promotion made during the same period has to be treated
as in excess of the quota, because they were not in proportions to
the requisition for direct recruitment – This view taken by the High
Court is fallacious and it equates executive policy of not filling
vacancies, due to financial or other compulsions with deliberate
underreporting – In the Instant case, the direct recruitment through
the SSC was not resorted to because of a ban, and not due to under-
reporting – Thus the contingency envisaged under Para 5
never
arose – Not only the were promotions made within the quota, and
were regular, there were regular vacancies, within the promote quota
– No excess promotions took place during the period 1983 and
1991 – Indents/requisitions placed with, the SSC for the recruitment
of DRIs were for a part of the vacancies and not for the exact 75%
of the actual vacancies available in each year – 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 01.03.86 has to be revised only
from the date of their respective appointments but not earlier to
01.03.1986 as was done in the impugned seniority list – 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 – The consequential action,
by way of drawing and publishing a final seniority list, in
A
B
C
D
E
F
G
H
3
accordance with the present findings, shall be completed within three
months.
Allowing the appeals by PRIs, the Court
Held: 1. The main issue before this Court is regarding
application of Clause 4 and 5 of the OM of 1986 in the background
of the 1979 Rules, which provide for 75% by direct recruitment
and 25% by promotion. The 1986 OM introduced the principle
of rotation of quota along with bunching rule. The question in
this case is whether the ratio of the PRIs has to be drawn with
respect to the indented vacancies for the DRIs. The fall out of
this mode of drawing the list is that if in a particular year there
are less number of indented vacancies for DRIs or the vacancies
are under reported the PRIs lose their right of seniority as given
under 1979 Rules. [Paras 33, 34 and 35][25-B-D, F-G]
2. 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 promotee’s 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 department’s pleading, specifically
admits that the promotees were appointed against vacancies
available to the PRI quota. [Para 51][31-B-D]
3. The court, in K.V. Subba Rao & Ors. v. Government of
Andhra Pradesh held that, promotion and seniority shall be
reckoned from the date of appointment, not retrospectively from
the date when the vacancy arose. The court, in M. Subba Reddy v
A.P. State Road Transport Corporation considered a situation
where departmental candidates were given ad-hoc promotions
against direct recruit vacancies when a ban on direct recruitment
B.S. MURTHY & ORS. v. A. RAVINDER SINGH & ORS.
A
B
C
D
E
F
G
H
4
SUPREME COURT REPORTS
[2022] 19 S.C.R.
was in force. Upon later regularization (of such promotions) it
was contended that the regularizations related back and that the
promotees were to be accorded seniority over direct recruits,
who entered the service. The court rejected this argument. State
of Uttaranchal & Ors. v Dinesh Kumar Sharma 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. [Paras 52, 53 and 54][31-D-
E; 32-D, F-G]
4.  No appointee from any one channel (direct recruits or
promotees) can lay claim to seniority from a date before her or
his appointment. 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 under
reporting 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. 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
A
B
C
D
E
F
G
H
5
in fact regular vacancies, within the promotee quota. [Paras 56,
58 and 59][37-C; 38-C-D, G-H; 39-A-C]
5. The existence of PRI vacancies is a matter of objective
fact – as can be seen from the replies to the RTI queries. 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 the court therefore, have to be treated as
regular. The court is of the opinion, that the reasoning of the
High Court, in overlooking these aspects, is clearly in error. [Para
60][39-D-F]
6. 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. [Para 61][39-G-H; 40-A]
7. High Court fell into error in setting aside the order of
the CAT, which is restored. It is held that (i) No excess promotions
took place during the period 1983 and 1991. 25% of the actual
vacancies arising every year during that period were for the
promotees. No direct recruit vacancy for any year was filled by
promotees. (ii) Indents/requisitions placed with, the SSC for the
B.S. MURTHY & ORS. v. A. RAVINDER SINGH & ORS.
A
B
C
D
E
F
G
H
6
SUPREME COURT REPORTS
[2022] 19 S.C.R.
recruitment of DRIs were for a part of the vacancies and not for
the exact 75% of the actual vacancies available in each year. (iii)
The record does not bear out 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. As
a result, there is no justification for invoking para 5 of the O.M.
of 1986. The department erroneously proceeded as if 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 01.03.86
has to be revised only from the date of their respective
appointments but not earlier to 01.03.1986 as was done in the
impugned seniority list, (b) Direct recruits of 1992 could be given
seniority only in that year but not earlier, or in 1991 as was
erroneously done in the impugned seniority list; (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. The impugned judgment
and order is set aside accordingly;
the appeals by the PRIs are
allowed in the terms of the findings of the Court. The
consequential action, by way of drawing and publishing a final
seniority list, in accordance with the findings, shall be completed
within three months. [Paras 62 and 63][40-B-H; 41-A, D]
State of West Bengal & Ors v Aghore Nath Dey & Ors.
(1993) 3 SCC 371 : [1993] SCR 2 919 ; Suraj Parkash
Gupta v State of J& K (2000) 7 SCC 561 : [2000] 3
SCR 807 – held inapplicable.
Pawan Pratap Singh v. Reevan Singh (2011) 3 SCC
267 : [2011] 2 SCR 831; P. Sudhakar Rao & Ors. v U.
Govinda Rao & Ors (2013) 8 SCC 693 : [2013] 13
SCR 540 – relied on.
Devindra Prasad Sharma v State of Mizoram (1997) 4
SCC 422 : [1997] 2 SCR 930 ; K.V. Subba Rao & Ors.
A
B
C
D
E
F
G
H
7
v. Government of Andhra Pradesh (1988) 2 SCC 201 :
[1988] 2 SCR 1118 ; M. Nirmala v. State of AP (1986) 3
SCC 647 : [1986] 3 SCR 507 ; M. Subba Reddy v. A.P.
State Road Transport Corporation (2004) 6 SCC 729 :
[2004] Supp 2 SCR 7 ; State of Uttaranchal & Ors. v
Dinesh Kumar Sharma (2007)1 SCC 683 : [2006] Supp
10 SCR 1 ; AFHQ/ISOs SOs (DP) Association & Ors.
V. Union of India (UOI) & Ors (2008) 3 SCC 331 :
[2008] 2 SCR 1183 ; State of U.P. v. Ashok Kumar
Srivastava, (2014) 14 SCC 720 : [2013] 11 SCR 846;
K. Meghachandra Singh v. Ningam Siro (2020) 5 SCC
689 : [2019] 16 SCR 651; Dinesh Kumar Gupta & Ots
v High Court of Judicature, Rajasthan 2020 SCC
OnLine (SC) 420 : [2020] 10 SCR 497 ; Direct Recruit
Class II Engg. Officers’ Assn. v. State of Maharashtra
(1990) 2 SCC 715 : [1990] 2 SCR 900 – referred to.
Case Law Reference
[1997] 2 SCR 930
held inapplicable
Para 27
[2000] 3 SCR 807
held inapplicable
Para 27
[1988] 2 SCR 1118
referred to
Para 52
[1986] 3 SCR 507
referred to
Para 52
[2004] Supp 2 SCR 7
referred to
Para 53
[2006] Supp 10 SCR 1
referred to
Para 54
[2008] 2 SCR 1183
referred to
Para 54
[2011] 2 SCR 831
relied on
Para 54
[1990] 2 SCR 900
referred to
Para 54
[2013] 13 SCR 540
relied on
Para 55
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3968
of 2009.
From the Judgment and Order dated 16.03.2005 of the High Court
of Judicature of Andhra Pradesh at Hyderabad in W.P. No. 11620 of
2004.
With
B.S. MURTHY & ORS. v. A. RAVINDER SINGH & ORS.
A
B
C
D
E
F
G
H
8
SUPREME COURT REPORTS
[2022] 19 S.C.R.
Civil Appeal Nos. 3967, 3969-3982 of 2009 and Writ Petition (C)
No.1380 of 2020.
R. Basant, Sr. Adv., Dhruv Kapur, Yash Pal Dhingra, Vijinder
Kumar, Maharishi Kaler, Ms. Ritika Sethi, Nithin Pavuluri, Rama Krishna
Meka, Dashrath Singh, Ms. Kirti Khangarot, Ms. Celesty Agarwal, Ms.
Ameya Thanvi, Dhruv Kapoor, Ms. Chitrangda Rashtrav, Manvendra
Singh Rathore, Gp. Capt. Karan Singh Bhati, Advs. for the Appellants.
Ms. Madhavi Divan, ASG, V. Giri, R. Bala, A. K. Srivastava, Sr.
Advs., Vadlamani Seshagiri, Adhish Rajvanshi, Siddharth Sachar,
Shreyuss Shankar Joshi, Mrs. Bela Maheshwari, Ms. Sunita Rani Singh,
Ms. Rekha Pandey, B. Krishna Prasad, B. V. Balaramdas, Advs. for
the Respondents.
The Order of the Court was passed by
S. RAVINDRA BHAT, J.
1. The appellants are aggrieved by a common judgment and order
of the erstwhile unified High Court of Andhra Pradesh in several writ
petitions.1 The High Court allowed those writ petitions and set aside the
order2 of the Central Administrative Tribunal (CAT) in a batch of ten
original applications. The CAT’s order had allowed those applications
and directed proper fixation of inter se seniority of Inspectors of Central
Excise, as between direct recruits and promotees. The promotee
inspectors are aggrieved, and are appellants before this court.
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
1 W.P.Nos.11620/2004, 10601/2004; 13525/ 2004, 12970/ 2004, 21863/2004, 1834/
2005, 1836/2005, 1838 of 2005, 1858/ 2005, 1861/ 2005, 2011/2005, 1348/ 2005,
18149/ 2004, W.P. No.6098/2005, 6099/2005; 6100/ 2005, & 6097/ 2005; all were
decided on 16.03.2005.
2 Dated 29.12.2003
A
B
C
D
E
F
G
H
9
determination of inter seseniority 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 memo3 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 07.02.19864 (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 application5, 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
applications6 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 CAT’s 1998 order.
3 Office Memo No. 9/11/55 RSP dated: 22.12.1959
4 OM No. 35014/2/80- Estt.(D), dated: 7.2.1986
5 O.A.NO. 156/1986
6 R.A. No. 29/1994 etc.
B.S. MURTHY & ORS. v. A. RAVINDER SINGH & ORS.
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
10
SUPREME COURT REPORTS
[2022] 19 S.C.R.
4. CAT’s 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 CAT’s 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 werecovered 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
A
B
C
D
E
F
G
H
11
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
acommittee 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
30.3.20007 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 department’s 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
7 O.A.No. 429/1998, which challenged the final list of 1997
B.S. MURTHY & ORS. v. A. RAVINDER SINGH & ORS.
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
12
SUPREME COURT REPORTS
[2022] 19 S.C.R.
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;
A
B
C
D
E
F
G
H
13
(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 as certain 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 CAT’s 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.
Contentions of appellant-PRIs
13. It is urged on behalf of the PRIs by their senior counsel, Mr.
R. Basant, that the High Court overlooked the fact that the Chairperson
of the Committee which was constituted pursuant to the decision of the
Full Bench (of CAT) submitted its first report to the Chief Commissioner
by letter dated 28.3.20008 suggesting that direct recruit/promotee register
of Inspectors maintained from 1884 to 1996 should be taken as the basis
8 C.No.11/39/92/99-Estt., dated 28.3.2000
B.S. MURTHY & ORS. v. A. RAVINDER SINGH & ORS.
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
14
SUPREME COURT REPORTS
[2022] 19 S.C.R.
to arrive at number of vacancies year-wise to determine the seniority
since in terms of 1986 OM. The method of calculation of vacancies
should be based on vacancy register. The extract of the report reads as
under:
 “I have looked into ‘DR/Promotee register of Inspectors’
Hyderabad 
which 
has 
been 
forwarded 
by 
the
Commissionerate. It has been maintained systematically
showing the exact ratio of 3:1 as provided in the O.M. dated
22.12.1959 and O.M. dated 7.2.1986. There is, therefore, little
scope to doubt authenticity of this register though nosignatures
are appended. Moreover, it has been duly certified by the
Joint Commissioner (F&V) of Hyderabad Commissionerate
as having been maintained in the Establishment of Hyderabad
Commissionerate now that this register is available, it would
be better to go by it than on any assumption or principle to
determine the number of vacancies on thebasis of which the
seniority list is to be drawn up.”
14. It was submitted that the Chairperson of the Committee
submitted its second report to the Chief Commissioner on 11.10.2000
clarifying that the Special Cell’s formula of taking the actual number of
DRIs appointed to arrive at the PRI quota was narrow. Instead, it
suggested to take the indents placed to Staff Selection Commission (SSC)
together with the appointments made on compassionate grounds, inter
Commissionerate transfers, sports quota and surplus cell which were in
the
nature of direct recruitment as basis for arriving at number of direct
recruit vacancies and to arrive at PRI quota by arriving the ratio of 3:1.
15. It was urged by Mr. Basant, that the January 2002 seniority
list, completely ignored the previous directions of CAT, which had attained
finality, and proceeded to apply the 1986 OM retrospectively, in regard
to pre-1986 PRIs, as well as ad-hoc PRIs, without considering that most
such PRIs were in fact promoted within the quota available to them, under
the rules. It was submitted that the department ignored two salient facts,
first, that as many as 110 appointments were made, which were adjustable
only against the direct recruit quota (such as sports quota, compassionate
appointments and inter Commissionerate transfers). Secondly, the existence
of a ban-though partial in nature, preventing direct recruitment, was a
completely neutral fact, which could not have operated against the PRIs
while determining the inter se seniority with DRIs.
A
B
C
D
E
F
G
H
15
16. It was urged by learned senior counsel that the method of
calculation of promotee quota vacancies was flawed. The appellants
urge that the quota is to be worked out, based on the total vacancies
arising each year. This contention is supported by the 1979 Rules as well
as 1986 OM. The department’s stand that quota is to be worked out, not
on the total reported vacancies as per the vacancy register as envisaged
in the 1986 OM but on the indents placed with the SSC for DRIs is
unjustified. This position is contrary to the express terms of the OM.
Indents placed with the SSC is only one, (among others) mode of direct
recruitment. It is not the only basis for determination of quota either, for
quotas are fixed by the Recruitment rules. According to the appellants
the restricted interpretation of the 1986 OM by the department would
render it bad and violative of Articles 14 and 16 of the Constitution.
17. It is urged that the 1986 OM is an executive instruction and
hence subordinate to statutory rules formulated under Article 309 of the
Constitution. Rule 7 of the 1979 Rules empowers the department to
relax any of the rules with regard to any class or category of persons. In
this case, the Ministry of Finance, Department of Expenditure imposed
restrictions on filling up of direct recruit vacancies during the years 1984
to 1990 while exempting vacancies to be filled up purely by promotion in
terms of the relevant recruitment rules from the purview of those
restrictions. These amounted to relaxation of the Recruitment Rules in
exercise of the powers conferred under Rule 7 of those Rules. The
appellants also rely on the averments, in Paras 5(1)(c) & (d) of the
department’s counter affidavit9, admitting that filling of vacancies by
promotion, was exempt from the instructions relating to ban on
recruitment, to the following effect.
“…..Central Board of Excise & Customs has since clarified
that there were restrictions on filling up direct recruit
vacancies during the years 1984 to 1990 and the restrictions
do not apply to vacancies which are to be filled up purely by
way of promotion in terms of the relevant Recruitment Rules.”
18. The appellants then rely on the replies given by the department,
to the replies to queries (dated 29-08-2007, 30-10-2007, 13-11-2007 and
28-11-2007) made under the Right to Information Act (“RTI”). The reply
to the RTI query10
9 Dated 25th August 2008 in CA 3969-3982/2009 arising out of SLP (C) 4784/2007
10 Given on 28-11-2007 (F.No.A.60/31/RTl/2007-Ad.lllB) by Govt of India, Ministry
of Finance, Department of Revenue, Central Board of Excise and Customs
B.S. MURTHY & ORS. v. A. RAVINDER SINGH & ORS.
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
16
SUPREME COURT REPORTS
[2022] 19 S.C.R.
“the restrictions on filling up of direct recruit vacancies
imposed by the Government do not apply to vacancies which
are filled up purely by way of promotion in terms of recruitment
rules provided the resultant vacancies in the lowest level of
the cadre are not filled up during the period of the ban order”.
Likewise, the letter dated 13-11-200711 refers to two earlier letters,
(F.7 (1)-E. Coord/84 dated 20.06.1984, F.7 (1)-E-Coord/86 dated
20.05.1986 and F.7 (1)-E-Coord.186 dated 15.07.1986), issued by the
Govt. of India, department of revenue, alluding to the fact that “there
were restrictions on the filling up of Direct Recruit vacancies during
the year 1984 -1990 in terms of instructions issued by Government
of India.” The appellants lastly rely on the reply dated 29.08.200712,
which stated that
“..The 25% promotee quota vacancies of Inspectors were
worked out on the basis of actual vacancies available in each
year.…The promotee Inspectors promoted well within 25%
promotee quota.”
It is submitted therefore, that the department proceeded on a
misconception that promotions made even within the quota available
for the PRIs were to be treated as excess to the extent that indents
were not (or could not be) made for direct recruitment to the cadre,
through the SSC.
19. It was further argued by the appellants, that the department’s
interpretation of the quota rule is untenable, in that for the purpose of
reckoning
seniority, the quota for PRIs was taken to be one third of
the total vacancies available and filled by direct recruitment. This
is contrary to the rules, which provide, independently a quota of 25%
of the total vacancies. It was submitted that this interpretation, together
with the fact that existence of a ban on direct recruitment was ignored,
led the department to ignore the directions in the previous orders of
the CAT, as well as the factual report of the commissioner, which
clearly existed that the vacancy register maintained at the relevant
time, did not show that there was any under-reporting of direct recruit
vacancies.
11 F.No.A.60/3 l/RTI/2007.AD.IIl.B by the Govt of India, Ministry of Finance,
Department of Revenue, Central Board of Excise and Customs
12 F. No. I/Admn (22) Misc-42 /R.TIA/CPIO/M-I/2007/49
A
B
C
D
E
F
G
H
17
Contentions of the respondent DRIs and the department
20. It was urged on behalf of the DRIs, who succeeded before
the High Court, that the impugned judgment does not call for interference.
It is pointed out that the question of inter se seniority has been gone into
on multiple occasions, and the department interpreted the previous rulings
(which had attained finality) correctly while drawing up the seniority list.
21. It was urged that the previous seniority list (as on 01.1.1992)
dated 15.10.1997 was not challenged by the PRIs; it was impugned by
the DRIs. Therefore, PRIs cannot seek better seniority than what their
position was in the list dated 15.10.1997 as on 1.1.1992. It was urged
that the excess PRIs including the applicants were not given any seniority
positions in the seniority list dated 15.10.1997 and the appellants as well
as other excess PRIs did not challenge the said seniority list in which
they were not granted seniority and were shown at the bottom of the
list. Having not challenged the seniority list on 15.10. 1997. It was only
challenged by the DRIs as they were aggrieved by their respective ranking
positions in that list. The PRIs therefore, cannot question the positions
assigned to them in the revised seniority list. It was argued that the CAT
failed to notice this aspect, and held that it was not open for the PRIs
again at a subsequent stage to contend that they ought to have been
fixed in the seniority above 1991 and 1992 DRIs. They
cannot be allowed
to do so as the principle ofestoppel would squarely operate against them.
22. It was urged that the impugned judgment correctly appreciated
that the vacancy register at the most indicated the vacancy position in
cadre and was not meant to confer the benefit of promotion on in-service
candidates more especially when the promotions were to be made with
reference to vacancies indented for DRIs. Therefore, CAT’s observation
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 was to be identified from the vacancy register, was
untenable. It is also relevant that contrary to the premise underlying the
contentions of PRIs, there is no conflict between Para 4 and 5 of the
1986 OM. This too was appreciated by the High Court. The pertinent
issue, submit the DRIs, was whether PRIs can claim seniority over the
DRIs when they occupied the posts beyond the prescribed ratio, subject
to bunching process. Quite possibly some PRI swere promoted on
temporary basis and some were promoted on ad-hoc basis. Assuming
that they were promoted on regular basis, without properly assessing the
B.S. MURTHY & ORS. v. A. RAVINDER SINGH & ORS.
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
18
SUPREME COURT REPORTS
[2022] 19 S.C.R.
vacancies, that ipso facto could not confer any right to claim seniority
from the date of their appointment, in as much as, the seniority can only
be assigned when the vacancy crystallizes. It is always subject to the
quota rule. That is what was followed in the 1959 OM, however, a slight
change was brought in 1986 doing away with the slotting system and
replacing the same with the bunching system. The bunching process has
the effect of balancing the ratio as far as possible without much deviation
and it acts as an effective catalyst and always equalizes the inequalities
created by excess promotion or excess.
23. The respondents urge that there cannot be excess direct
recruitment in as much as only clearvacancies would be reported to
the selection agencies whereas promotions would also be given on ad-
hoc, temporary basis. In the process of fixation of seniority, there could
be variation in the dates of promotion either in the promotee cadre or
date of joining in the DRI cadre, but that should not be allowed to
uproot the entire seniority list and efforts must be made to setright the
commissions or omissions as far as practicable. The High Court also
correctly appreciated that para 5 of the 1986 OM did not cause prejudice
to PRIs by the bunching process and any promotions beyond the bunching
stage were treated as ad hoc promotions. The High Court correctly
upheld the 1986 OM and observed that it contained principles
for fixation
of seniority when the intake is from two sources. In fact, in bunching
systemthe PRIs would benefit in view of the fact that when the indented
vacancies are not filled up in toto for non-availability of DRIs for various
reasons, requisite promotions made to the extent of indented vacancies.
24. It is argued that the OMs are to be read as they are and
nothing can be imported nor interpreted contrary to their intention. Quotas
have been specifically fixed between DRIs and PRIs at 75% and 25%,
the quota of PRIs is co-relatable to the indent placed fordirect recruitment
with the SSB. Therefore, the quota has no relationto permanent strength
or vacancy position.
25. It is contended that though a vacancy may arise, or exist, it
may not necessarily be filled up immediately. Therefore, even if the
direct recruit quota has not been filled up, PRIs should be given their
share in terms of such vacancy positions. The dispute also arose with
regard to “identification” of the vacancies that is, whether it is assessed
on the basis of the indents placed by the departments or by the SSC or
on the basis of the vacancy position as reflected in the vacancy register.
A
B
C
D
E
F
G
H
19
It is pertinent to mention that DR/PRRegister is not a vacancy register
contrary to the observation that the same was said to be maintained by
the department for the said purpose. Therefore, discrepancies in such
register were highlighted to CAT in the DRIs’ review petition. One
discrepancy was that promotion were given to an individual against a
death vacancy which arose nearly 16 months after such promotion- this
too was held to be a promotion within the promotee quota and seniority
was sought to be extended to such promotion from the date of promotion
by the CAT’s order. The CAT however, dismissed the review petition on
the ground that the plea was nothing but an appeal in disguise and DRIs
were free to appeal against the verdict.
26. It is argued therefore, that the maintenance of a Register at
best, served to identify vacancies. Instead of that register, the
Departmental Promotion Committee (DPC) reports (ordering the
promotions with specific reference to nature of such vacancies against
such promotions were given for the said period) would be more authentic
in considering if promotions were made in the regular manner. However,
CAT ignored the DRIs’ pleas, in its order. It was submitted that the
vacancy register is not relevant when promotions are made but their
relevance is important at the time of fixation of seniority, as such
promotions should conform to the quota prescription under the rules, as
between PRIs and DRIs. The CAT, having observed
that quota rule had
not been broken down, should have held that promotions could have
been given only in proportion to the PRI quota on the basis of indents
placed by the department with the SSB and promotions could not be
correlated to the vacancy position. The bunching system was introduced
so as not to cause injustice to the promotee officers. The Central
Government’s clarification clearly provided that notwithstanding the
vacancies which were indented by the department Staff Selection Board
were not filled up, yet, to the extent of the indent, promotions could be
given by resorting to bunching system. Consequently, the interests of the
PRIs were fully protected.
27. The contesting respondents rely on the judgments of this court,
reported as State Of West Bengal & Ors v Aghore Nath Dey & Ors13;
Devindra Prasad Sharma v State of Mizoram14; Suraj Parkash Gupta
v State of J& K15 to argue that this court has previously ruled that
13 1993 (3) SCC 371
14 1997 (4) SCC 422
15 2000 (3) SCR 807
B.S. MURTHY & ORS. v. A. RAVINDER SINGH & ORS.
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
20
SUPREME COURT REPORTS
[2022] 19 S.C.R.
wherever public servants are promoted in excess of their quota, such
promotions would be deemed as irregular to the extent it violates the
rules. The PRIs would be eligible only to the extent DRIs are appointed,
and that the balance or excess PRIs would have to be bunched at the
bottom of the seniority list.
28. The Central Government has supported the conclusions arrived
at by the High Court. On its behalf, the Additional Solicitor General
(ASG) Ms. Madhvi Divan, urged that the relative seniority of DRIs and
PRIs has to be determined according to therotation of vacancies between
DRIs and PRIs which shall be based on the quota of vacancies reserved
for direct recruitment and promotion respectively in the Recruitment
Rules. It was urged that the record clearly bears out that while finalizing
the seniority of Inspectors for the years 1983 to 2002 as on 01.01.2002,
vide seniority list dated 22.7.2002, the promotee quota vacancies were
arrived at year wise, in terms of the indents placed to the SSC for direct
recruitment and other appointments made under direct recruit quota i.e.,
on compassionate grounds, sports quota, vacancies kept aside for inter-
Commissionerate transfers and surplus cell.
29. The Central Government also argued that in tune with the
OM of 1986 all the excess PRIs including the appellants were not given
any seniority position in the seniority list dated 15.10.1997. The appellants
did not challenge
that seniority list where they were not given any seniority
position and were only shown at the bottom of the list, they cannot
challenge their seniority position in the impugned seniority list and cannot
question their present seniority positions. The note in the seniority list
dated 15.10.1997 with reference to the excess PRIs as regards to their
seniority was self-explanatory, Therefore, the grievance of the appellants
against the present seniority list was devoid of any merit. They are not
entitled to any relief.
30. It is lastly urged that in accordance with the principle adopted
that the indents placed to SSC together with actual appointment on
compassionate grounds, sports quota and vacancies kept reserved for
Inter Commissionerate transfers while placing such indents shall be taken
as the vacancies meant for direct recruitment, it was found that 789
vacancies arose during the period 1991- 2001 which indicated that the
department could order 264 promotions -in that period. Thereafter all
the officers who were to be given seniority after 1999 including the
officers promoted against the vacancies that arose consequent to increase
A
B
C
D
E
F
G
H
21
in the promotee quota from 25 % to 33 1/3 %, since at that point of time
all the vacancies under promotee quota were filled up, have been bunched
and given seniority in the year 2000.
Analysis and 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.
32. The 1986 OM which is at the heart of the present controversy
is reproduced below:
“OFFICE MEMORANDUM
Subject: General principles for determining the seniority of
various categories of persons employed in Central Services.
As the Ministry of Finance, etc. are aware, the General
Principles for determination of seniority in the Central Services
are contained in the annexure to Ministry of Home Affairs
OM No. 9/11/55-RPS dated 22-12-1959. According to Para
6 of the said annexure, the relative seniority of direct recruits
and promotees shall be
determined according to rotation of
vacancies between the direct recruits and the promotees, which
will be based on the quota of vacancies reserved for direct
recruitment and promotion respectively in the Recruitment
Rules. In the Explanatory Memorandum to these Principles,
it has been stated that a roster is required to be maintained
based on the reservation of vacancies for direct recruitment
and promotion in the Recruitment Rules. Thus, where
appointment to a grade is to be made 50% by direct recruitment
and 50% by promotion from a lower grade, the inter se
seniority of direct recruits and promotees is determined on
1:1 basis.
B.S. MURTHY & ORS. v. A. RAVINDER SINGH & ORS.
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
22
SUPREME COURT REPORTS
[2022] 19 S.C.R.
2. While the abovementioned principle was working
satisfactorily in cases where direct recruitment and promotion
kept pace with each other and recruitment could also be made
to the full extent of the quotas as prescribed, in cases where
there was delay in direct recruitment or promotion, or where
enough number of direct recruits or promotees did not become
available, there was difficulty in determining seniority. In such
cases, the practice followed at present is that the slots meant
for direct recruits or promotees, which could not be filled up,
were left vacant, and when direct recruits or promotees became
available through later examinations or selections, such
persons occupied the vacant slots, thereby became senior to
persons who were already working in the grade on regular
basis. In some cases, where there was shortfall in direct
recruitment in two or more consecutive years, this resulted in
direct recruits of later years taking seniority over some of the
promotees with fairly long years of regular service already to
their credit. This matter had also come up for consideration
in various court cases both before the High Courts and the
Supreme Court and in several cases the relevant judgment
had brought out the inappropriateness of direct recruits of
later years becoming senior to promotees with long years of
service.
3. This matter, which was also discussed in the National
Council has been engaging the attention
of the Government
for quite some time and it has been decided that in future,
while the principle of rotation of quotas will still be followed
for determining the inter se seniority of direct recruits and
promotees, the 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. Thus, if adequate number
of direct recruits do not become available in any particular
year, rotation of quotas for purpose of determining seniority
would take place only to the extent of the available direct
recruits and the promotees. In other words, to the extent direct
recruits are not available, the promotees will be bunched
together at the bottom of the seniority list, below the last
position up to which it is possible to determine seniority on
A
B
C
D
E
F
G
H
23
the basis of rotation of quotas with reference to the actual
number of direct recruits who become available. The unfilled
direct recruitment quota vacancies would, however, be carried
forward and added to the corresponding direct recruitment
vacancies of the next year (and to subsequent years where
necessary) for taking action for direct recruitment for the total
number according to the usual practice. Thereafter, in that
year while seniority will be determined between direct recruits
and promotees, to the extent of the number of vacancies for
direct recruits and promotees as determined according to the
quota for that year, the additional direct recruits selected
against the carried forward vacancies of the previous year
would be placed en bloc below the last promotee (or direct
recruit as the case may be) in the seniority list based on the
rotation of vacancies for that year. The same principle holds
good in determining seniority in the event of carry forward,
if any, of direct recruitment or promotion quota vacancies (as
the case may be) in the subsequent years.
Illustration:
Where the Recruitment Rules provide 50% of the vacancies
in a grade to be filled by promotion and the remaining 50%
by direct recruitment, and assuming there are 10 vacancies in
the grade arising in each of the years 1986 and 1987 and
that 2 vacancies intended for direct recruitment remained
unfilled during 1986 and they could be filled during 1987,
the seniority position of the
promotees and direct recruits of
these two years will be as under:
1986
1987
1. P1
9. P1
2. D1
10.D1
3. P2
11.P2
4. D2
12.D2
5. P3
13.P3
6. D3
14.D3
7. P4
15.P4
B.S. MURTHY & ORS. v. A. RAVINDER SINGH & ORS.
[S. RAVINDRA BHAT, J.]

A
B
C
D
E
F
G
H
24
SUPREME COURT REPORTS
[2022] 19 S.C.R.
8. P5
16.D4

17.P5

18.D5

19.D6
20.D7
4. In order to help the appointing authorities in determining
the number of vacancies to be filled during a year under each
of the methods of recruitment prescribed, a vacancy register
giving a running account of the vacancies arising and being
filled from year to year may be maintained in the pro forma
enclosed.
5. With a view to curbing any tendency of underreporting/
suppressing the vacancies to be notified to the authorities
concerned for direct recruitment, it is clarified that promotees
will be treated as regular only to the extent to which direct
recruitment vacancies are reported to the recruiting authorities
on the basis of the quotas prescribed in the relevant
Recruitment Rules. Excess promotees, if any, exceeding the
share falling to the promotion quota based on the
corresponding figure, notified for direct recruitment would
be treated only as ad hoc promotees.
6. The General Principles of seniority issued on 22-12-1959
referred to above, may be deemed to have been modified to
that extent.
7. These orders shall take effect from 1-3-1986. Seniority
already determined in accordance with the existing principles
on the date of issue of these orders will not be reopened. In
respect of vacancies for which recruitment action has already
been taken, on the date of issue of these orders either by way
of direct recruitment or promotion, seniority will continue to
be determined in accordance with the principle in force prior
to the issue of this OM.
8. Ministry of
Finance, etc. are requested to bring these
instructions to the notice of all the attached/subordinate
offices under them to whom the General Principles of
A
B
C
D
E
F
G
H
25
seniority contained in the OM dated 22-12-1959 are
applicable within 2 weeks as these orders will be effective
from the next month.
sd/- Joint Secretary to the Government of India”
33. The main issue before this Court is regarding application of
Clause 4 and 5 of the OM of 1986 in the background of the 1979 Rules,
which provide for 75% by direct recruitment and 25% by promotion. 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 thefixing of inter-se seniority between the DRIs and
PRs. That was done in accordance with the executive Office
Memorandums.
34. The 1986 OM introduced the principle of rotation of quota
along with bunching rule. In its termswhen in a particular year, if against
the available vacancies, a given number of DRIs or PRIs are not available,
after the last available candidate, from a particular channel,candidates
from the other channel or quota would be bunched at the end of the list
and such seniority and will be treated as ad-hoc entrants, for the purposes
of seniority. The effect of drawing seniority lists in the manner required
of by the OM is that in a particular year, whenever the number of
candidates appointed from either source– under the rule can potentially
be treated as ad-hoc to the extent that vacancies are not reported to the
SSC in a given
year.
35. The question in this case is whether the ratio of the PRIs has
to be drawn with respect to the indented vacancies for the DRIs. The
counsel for the DRIs has argued in favour and the same has also been
done by the government while drawing the seniority list. The fall out of
this mode of drawing the list is that if in a particular year there are less
number of indented vacancies for DRIs or the vacancies are under
reported the PRIs lose their right of seniority as given under 1979 Rules.
36. As is evident from the preceding factual discussion, the genesis
of this dispute was the first round of litigation, initiated by the promotee
Inspectors – who sought for proper fixation of their seniority. This
culminated in CAT’s 1988 order. Since direct recruits were not arrayed
as parties, they preferred review applications, which were disposed of
in terms of the main 1988 order, dated 05.07.1988.
B.S. MURTHY & ORS. v. A. RAVINDER SINGH & ORS.
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
26
SUPREME COURT REPORTS
[2022] 19 S.C.R.
37. This order required the department to frame the seniority list
having regard to the OM of 07.02.1986. The order of CAT attained
finality when this Court refused to entertain a special leave petition,
directed against it, on 12.03.1990.
38. The second limb of litigation was triggered by the publication
of another seniority list of Inspectors (dated 30.04.1993) reflecting inter-
se seniority between direct recruits and promotees as on 01.01.1992.
This list was based on a retrospective application of the OM of 1986; it
was challenged by direct recruit Inspectors in a number of applications,
and review applications. These applications were heard, and on
12.07.1994, referred to a Full Bench of CAT. On 21.11.1996, the Full
Bench rendered its opinion, inter alia, holding that the 1986 could not be
applied retrospectively. The bench of CAT which then heard the
applications pending before it on merits held by its order of 13.02.1997
that the OM of 1986 could be applied only prospectively, and that the
1959 OM had to be followed for the period before the 1986 OM. It also
held that the quota rota rule had not broken down, and that the case of
PRIs who were regularised after the OM of 1986 had to be individually
examined and their seniority, determined. In the light of these observations,
the seniority list dated 30.04.1993 was quashed.
39. Review petitions and certain pending applications were disposed
of by CAT, on
28.07,1999, when it observed that the fresh seniority list –
to be prepared, should be preceded by consultations between the direct
recruits and PRIs, whose views should be considered and appropriate
recommendations, made by Commissioner level officers. This order was
sought to be reviewed, again: however, CAT disposed of those
applications, by its clarificatory order dated 30.03.2000.
40. Acting on the basis of these orders, a report was prepared
by a five-member committee (which held consultations among the
employees, and seven sittings) and submitted on 28.03.2000. The Chief
Commissioner asked the Chairperson (of the Committee) to re-examine
the issue. In its report of 11.10.2000, the Chairperson was of the view
that to determine seniority and arrive at the correct figures of the relative
quotas, it was necessary to take into account, and include appointees
made against the sports quota, those appointed on compassionate
grounds, as well as those adjusted from the surplus cells to arrive at
the vacancies allocable to the share of direct recruits – in addition to
vacancies reported to the Staff Selection Board. The Chief
A
B
C
D
E
F
G
H
27
Commissioner required the Chairperson of the Committee to submit
its final report, which it did, on 27.12.2000.
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 9.3.198816
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
4.7.198817 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
letter18 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 someof 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, itdid 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 nobody’s case, nor can it
be, that such vacancies were filled from the PRIs quota. The appointments
had to be adjusted against the DRI quotas.
16 F.No.12034/19/SCC 87 -Ad.111,B, dated 9.3.1988
17 F.No. A.12034/ SR/ 18/ SCC 88 Ad.III B dated 4.7.1988
18 F. No. A. 12034/SR I 181 SCC 88 Ad. III B.
B.S. MURTHY & ORS. v. A. RAVINDER SINGH & ORS.
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
28
SUPREME COURT REPORTS
[2022] 19 S.C.R.
44. The department’s affidavit, dated 25.08.2008 states that the
Board of Central Excise and Customs clarified that
“there were restrictions on filling up direct recruit vacancies
during the years 1984 to 1990 and the restrictions do not
apply to vacancies which are to be filled up purely by way of
promotion in terms of the relevant Recruitment Rules.”
45. The replies given by the department, to the replies to queries
(dated 29-08-2007, 30-10-2007, 13-11-2007 and 28-11-2007) under the
RTI query19
“the restrictions on filling up of direct recruit vacancies
imposed by the Government do not apply to vacancies which
are filled up purely by way of promotion in terms of recruitment
rules provided the resultant vacancies in the lowest level of
the cadre are not filled up during the period of the ban order”
.
46. In fact the letter dated 13-11-2007 refers to two earlier letters,
(F.7 (1)-E. Coord./84 dated 20.06.1984, F.7 (1)-E-Coord/86 dated
20.05.1986 and F.7 (1)-E-Coord.186 dated 15.07.1986 which also support
the existence of the ban on direct recruitment, and further state that
there were restrictions upon the appointments under the direct recruit
quota, for the years 1984-1990; the letter dated 29-08-2007 in reply to
an RTI query also admitted that the (promotions to) “25% promotee
quota vacancies of Inspectors were worked out on the basis of actual
vacancies available in each year.…The promotee Inspectors
promoted well
within 25% promotee quota.” Thus, it was established
that:
(a)
The PRIs, initially appointed on a temporary or ad-hoc basis,
were regularized in two lots: one by an order in 1985, and
137 PRIs were regularized by an order dated 27.10.1988.
(b)
The direct recruits who sought seniority over the PRIs in
this case, were appointed in 1992, against existing vacancies,
which became available for filling, after the ban (imposed
by the central government during 1984-1990) ended. The
requisition to the SSC for filling these vacancies, were
apparently made in 1991.
19 Refer to supra, f.n. 10
A
B
C
D
E
F
G
H
29
(c)
Several vacancies (which fell to the share of the DRI quota)
were not reported, to SSC, but were nevertheless filled-
against the compassionate appointment quota (to the
extent of 50 vacancies and 39 appointments against
the sports quota;
(d)
the ban against resorting to direct recruitment, did not apply
to resorting to promotion, to the extent, promotional
vacancies existed. This is evident from the affidavit of the
Central Government, as well as other materials on record.
(e)
The reply to a query, under the RTI, pointedly admitted that
the promotions made in the PRI 25% quota were well within
the permissible quota.
47. The contesting respondents and the Central Government justify
the impugned judgment, contending that the PRIs had to be treated as
ad-hoc promotees, in terms of the 1986 OM, because firstly, the
proportion in which they were appointed against promotional vacancies
were in excess of the proportion available to DRIs, given the number of
requisitions made to SSC and, secondly, that there cannot be an
assumption that the benefit of regularization to PRIs would include
seniority over the DRIs who were appointed later, but were entitled to
be treated as their seniors. These respondents have relied on the judgments
of this court in Aghore Nath Dey & Ors; Devindra Prasad Sharma;
and Suraj Parkash Gupta (referred to supra).
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 sametime 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.
B.S. MURTHY & ORS. v. A. RAVINDER SINGH & ORS.
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
30
SUPREME COURT REPORTS
[2022] 19 S.C.R.
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 that
“The 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 Court’s judgment). We confirm the view of the High
Court on this point. The result is that the promotees have to
A
B
C
D
E
F
G
H
31
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 promotee’s 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 department’s 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 Pradesh20 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 AP21 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
20 1988 (2) SCR1118
21 1986 (3) SCR 507
B.S. MURTHY & ORS. v. A. RAVINDER SINGH & ORS.
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
32
SUPREME COURT REPORTS
[2022] 19 S.C.R.
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.”
53. This court, in M. Subba Reddy v A.P. State Road Transport
Corporation22 considered a situation where departmental candidates were
given ad-hoc promotions against direct recruit vacancies when a ban
on direct recruitment was in force. Upon later regularization (of such
promotions) it was contended that the regularizations related back and
that the promotees were to be accorded seniority over direct recruits, who
entered the service. The court rejected this argument, holding as follows:
“mere inaction on the part of the Government cannot be made
a ground to contend that the quota rule has broken down. In
the present case, in the absence of direct
recruitment, the
appellants could not have got seniority over direct recruits.
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.”
54. State of Uttaranchal & Ors. v Dinesh Kumar Sharma23
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) & Ors24 distinguished
Subba Reddy (supra) specifically in the context of periods when a ban
in recruitment exists
22 2004 Supp (2)SCR7
23 2006 Supp (10) SCR 1
24 2008 (3) SCC 331
A
B
C
D
E
F
G
H
33
“28. In M. Subba Reddy and Anr., etc. v. A. P. State Road
Transport Corporation and Ors. AIR2004SC3517, 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
B.S. MURTHY & ORS. v. A. RAVINDER SINGH & ORS.
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
34
SUPREME COURT REPORTS
[2022] 19 S.C.R.
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
A
B
C
D
E
F
G
H
35
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 Singh25
considered several previous precedents, on the issue, including the
Constitution Bench decision in Direct Recruit Class II Engg. Officers’
Assn. v. State of Maharashtra26. 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.
25 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
26 (1990) 2 SCR 900
B.S. MURTHY & ORS. v. A. RAVINDER SINGH & ORS.
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
36
SUPREME COURT REPORTS
[2022] 19 S.C.R.
(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)
“Point 4
Direct recruits cannot claim appointment from the date of
vacancy in quota before their selection 
80. 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
A
B
C
D
E
F
G
H
37
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 &
Ors27 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 weredivided in the ratio 3:1 during the period
1986 to 1990 and the share of vacancywhich comes for direct
recruit were reported to SSC and the promotee quota
vacancies were filled upby 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
27 (2013) 8 SCC 693
B.S. MURTHY & ORS. v. A. RAVINDER SINGH & ORS.
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
38
SUPREME COURT REPORTS
[2022] 19 S.C.R.
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
under reporting 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 court’s 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
register
“at the
mostindicates the vacancy position in DRI/PRI cadre
and it is notintended to confer the benefit of promotion on in-
servicecandidates more especially when the promotions are
tobe effectedwith reference to the vacancies indented for
D.R.ls. Therefore, theobservation of the tribunalthat only in
case of detection of under, reporting/suppression the
bunching process had to be adoptedand in other cases the
vacancies position vis-a-vis the promotionhas 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
A
B
C
D
E
F
G
H
39
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
B.S. MURTHY & ORS. v. A. RAVINDER SINGH & ORS.
[S. RAVINDRA BHAT, J.]
A
B
C
D
E
F
G
H
40
SUPREME COURT REPORTS
[2022] 19 S.C.R.
recruitment, it did not apply to vacancies which were to be filled up by
way of promotion in terms of the Recruitment Rules.
62. For the above reasons it is held, that the High Court fell into
error in setting aside the order of the CAT, which is hereby restored.
Therefore, it is held that:
(i)
No excess promotions took place during the period 1983
and 1991. 25% of the actual vacancies arising every year
during that period were for the promotees. No direct recruit
vacancy for any year was filled by promotees.
(ii)
Indents/requisitions placed with, the SSC for the recruitment
of DRIs were for a part of the vacancies and not for the
exact 75% of the actual vacancies available in each year.
(iii)
The record does not bear out 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. As a result, there is no justification for invoking
para 5 of the O.M. of 1986. The department erroneously
proceeded as if 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 01.03.86 has to be revised only from the
date of their respective appointments but not earlier to
01.03.1986 as was done in the impugned seniority list,
(b) Direct recruits of 1992 could be given seniority only in
that year but not earlier, or in 1991 as was erroneously 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
A
B
C
D
E
F
G
H
41
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
has 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.
63. The impugned judgment and order is accordingly set aside;
the appeals by the PRIs are allowed in the terms of the above findings.
The consequential action, by way of drawing and publishing a final
seniority list, in accordance with the present findings, shall be completed
within three months. The writ petition is also disposed of in the above
terms. There shall be no order on costs.
Ankit Gyan
Appeals allowed.
(Assisted by : Iram Jan, LCRA)
B.S. MURTHY & ORS. v. A. RAVINDER SINGH & ORS.
[S. RAVINDRA BHAT, J.]