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T.N. SAXENA & OTHERS

STA'TE OF U.P. & OTHERS

May1, 1982

[S. MURTAZA FAZAL ALI AND A, VARADARAJAN, JJ.J

U.P. Government Servict-Sentorit)!·-Recruilment from.two Jources-Prtr mottf$ appointed first and direct recruits much later-Seniority of prOmotees based on length of service not affected by later induction of direct recruits.

According to the relevant orders of the State Government, seniorily in service was generally to be determined. from the date of substantive appoint.

ment }n a substantive vacancy but. where appointments to a service were made D both by promotion and direct recruitment, a combined waiting list was to be prepared by taking candidates alternately from the . lists of prorrioted candidates and direct reccuits aod appointments made in accordance with that combined list.

The posts of Senior Marketing Inspector under the Food & Supplies Department of U.P. were l:'eing filled up entirely by way of promotion from the category of Marketing Inspector. But, with effect fratµ April 15, 1964, the State.

Government decided to fill up these posts by way of promotion as well as direct • recruitment in the ratio of 50:50. ·

Respondents 2 to S w; o had entered service as Marketing Inspectors were I promoted as Senior Marketing Inspectors in September, 1964,, in the quota of promotees. The appellants, who were direct recruits to the post of Senior Mar~ keting Inspector were appointed much later but were placed above respdndents ,2 to Sin the sniority list of Senior Marketing Inspectors issued in 1977 which resulted in the reversion df respondents 2 to 5 from the posts of Deputy Market~ ing Region~! Officers to which.they had been further promoted in 1974. .

Allowing the petition of respondents 2 to 5, the High Court quashed tho G seniority list holding that appointments already made by departmental promotion . to fUbstantive posts would not be affected by the direct recruits coming subscqu.ently through tho .Public Service Commission ..

In appeal, the appellants contended that the direct recruits had to be ad. justed alternately with the proniotees even though the promotees had been

appointe~ in their owp quota Ion~ before the direct l'Cl'ruits join"!. service, H

SUPREME COURT REPORTS . [1982) 3 s.c.R.

A Dismissing the appeal,

HELD l. The promoteeSiwere CntitJed tO maintain their seniority as from the date of their promotion and it was 'not open to the Government to prepare a seniority Jist by pushing the promotees far below the position of seniority which they would legally occupy merely to accommodate the direQt recruits.

The rule of alternate seniority does not mean that the genuine seniority based on length of service should be completely overlooked. [726 G] ·

2. The normal rule is that seniority should be measured by the length of continuous officiating service unless a contrary intention appears from the rules.· In this Case, according to the orders issued by the Government, the length of service was the prime criterion for determining seniority. [726 A-B]

~- Promotees regularly appointed durig a particular period within the quota of promotees can claim their .whole lepgfh of service for the purpose' of seniority as against direct recruits who may turn up in succeeding periods. [726 C]

Bishan Sarup Gupta v. Union of India & Ors., [1975] 1 S.C.R. 104 held inapplicable; N.K. Chauhan & Ors. v. State of Gujarat & Ors. [19(7] I S.C.R.

D 1037 and B.S. Yadav & Or~. v. State. of Haryana & Ors., [1980] 1S.C.R.1024 referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3148 of 1979.

Appeal by special leave from the judgment and order dated the 18th May, 1979 of the Allahabad High Court in Writ Petition

No. 1372 of 1977. ""

Dr. Y.S. Chita/e and A.K. Srivastaw1 for the Appellant.

R.K. Garg, G.N. '])ikshit, V.J. Francis, D.K. Garg, S. Dikshit and Ashok Grover for the Respondents. _,

The Judgment of the Court was delivered by

FAZAL ALI, J. This appeal by special leave is directed against a judgment dated 18.S.79 of the Allahabad High Court quashing the impugned seniority list dated 4.4.77 issued by the Government of

U.P. (hereinafter referred to as the 'Government') which resulted in the reversion of respondents 2 to 5 to lower posts.

The facts of the case lie within a narrow com'pass and, in our opinion, seem to be concluded by several decisions of this Court, ,

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I T.N. SAXENA v. U.P.. STATll (Fazal Ali, i.) 721 ' Respondents 2 to 5 had passed the High. Scltool Examination llnd entered the service of the Government all Marketing Inspecton

nnder the establishment of Food & Supf1Jies Department on various dates and were later confirmed on these posts. In fitct, lo begin

with, the Department itself was temporary but was later on made permanent. It may be stated here that the post of Marketing Inspector 'Was exempted from the scope of the Public Service Commission. The . next higher post in the hierarchy of the Depart~ men! was that of Senior Marketing Inspector and previot11 to the . year 1964 these posts were filled entirely by promotion 'from Marketing Inspectors. As respondents 2 to 5 were already confirmed in their original post of Marketing Ifispector, they were pr.omoted to the rank of Senior Marketing Inspectors with effect from September 1964 and since then had been holding the post until their.further promotion as Deputy Marketing Regional Officers in June 1974.

It appears that right from. 7.12.44 upto Sept. 1964 the criteria for determining the seniority of the afore$aid 'employees was total length of service including identical and high'er s'cafo, of pay. It is !, lOt disputed that respondents 2 to 5 fulfilled botli the criteri~

mentioned above.

Sometime in 1964, however, the Government took a policy decision that so far as the cadre bf Senior Mitketing

Inspectors was concerned, the posts would Ile fille'd by tlvo sources, viz., (I) promotion ancl'{2) direct recruitinei\i in !lib ratio of 50:50.

As a result. of this &Cisiol\ a very large number of posts were sancti()ned to accommodate the direct recruits who . were , to be appointed through a competitive examination hefd by the Public

Service Commission. The Government also ordered that hence- . forward the posts of Senior Marketing Inspectors shoufd be brought within the purview of .the Public Service Commfssion. We have -"--- mentioned this fact expressly because oneof points that was raised • ' before the High Curt by the appellants was that. respondents 2 to 5 had not been cleared by the Public Service Commission nor were their cases referred to it.

Nothing much turns upon this point because it was not argued before us in the appeal.

Moreqver, as respondents 2 to 5 were confirmed hands question of taking the formal sanction of the Public Service Commission would be i; nore or less inconsequential and could be given subsequently with retrospective effect. We might further state another ,.undi.sputed fac!-the posts' of the Senior Marketing Inspector at. the bme f the ew policy taken by the Government wer~ il!9re11:se4 !\nd respondents 4 tQ

SUPREME COURT REPORTS

(1982) 3 S.C.R; • 5 who had been promoted purely in the quota when the Government decided to recruit the other 50% by direct recruitme11t. This fact is rather important because it distinguishes the present case from some of the decisions of this Court on whiCh heavy reliance bad been placed by the counsel for the appellants.

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.The principles concerning the recruitment of the promotees and tbe direct recruits were contained in a letter of the Government (Annexure C to the petition) relevant portion of which may be ' extracted thus :

"I am directed to address ou on the above subject and to say that the post of Senior Marketing Inspector has been placed within the purview of Lok Seva Ayog with effect from 15 April 1964. The recruitment to this post will now therefore he made on the principles indicated below:

(i) 50% of the posts will be filled by promotion from amongst the Marketing Inspectors and the remaining 50% by direct recruitment . through Lok Seva Ayog.

(ii) Educational qualifications for direct recruitment through Ayog will be graduate of a recognised University with preference to graduate in Agriculture.

(iii) Age limit is 21 to 25 years. Age limit for departmental candidate for promotion• will be 40 years. dfficials wbo start officiating as Senior Marketing Inspector before the age of 40 years will, however, be considered for promotion.

(iv) All permanent Marketing Inspectors who have put in 5 years service, permanent an<;! temporary both, will be eligible for promotion. No educational qualification has been prescribed for promotion except that no one who has not got the minimum qualification shall be eligible for promotioJl." _

A perusal of this letter would clearly show that the quota of

. "" the promoted Senio; Marketing Inspectors was not at all touched or altered and even the age-limit for the candidates who had been

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T.N. SAXENA v. b.!>. STATll (Fazai Ali, J.)

promoted was extended upto 40 years and it is not disputed that respondents 2 to 5 were within that age-limit.

Regarding the question of seniority, which is the fundamental point in issue in the appeal, the Rules provide thus :

• "(xi) Seniority

Seniority: in service shall generally be determined from the. date of substantive appointment to a service or from the date of the order.of appointment in a substantive vacancy. In special cases seniority may be determined in accordance with the conditions which may suit a particular service. If two or more candidates are appointed on the same date, their seniority will be determined according to ' the order in which their names are mentioned in the appointment order.

Where appointments to a service are made both by direct recuritment and promotion, a combined waiting list_ would be prepared of the candidates recruited by both the sources and appointments made in accordance with that combined list. The combined list is to be prepared by taking candidates alternatley from the lists of promoted

candidate~ an<l direct recruits." ~

The High Court has rightly construed. the aforesaid Rule of seniority to connote that appointments already made by departmlltltal promotion to substantive posts would not be-affected by the

dirct recruits coming subsequently through the Public Service Commission.

Reliance was, however, placed by the appellants on the 2nd paragraph of the Rule which stated that the combined list was to be prepared by taking candidates alternately from the list of promoted candidates and direct recruits. This clause bas to be interpreted rationally so as to advance the real object of the Government which was merely to enlarge the the area of recruitment of Senior Marketing Inspectors without affecting the persons who had already been promoted to the higher post long before even the policy of taking direct recruits through Public Service Commission was ilorn. Unfortunately however after the direct recruits were taken as Senior Marketing Inspectors, sometil!le after . 1970 they were put above respondents

724 stJl>llEMll cotJk't REP6kts (198~) j s.C.k

2 to 5 who, by the time the direct recruits were appointed, had already been promoted even to a higher post, viz., Deputy Marketing Regional Officers. The High Court relied on a Government order setting out guidelines relating to seniority which has already been extracted above.

Perhaps Jhe Government was under the impression that as the quota of 50% was reserved for direct recruits and they had come through competitive examination with higher qualifications, they would have. to take precedence over the promotees even though the promotee bad occupied the post in their own quota long before the direct recruits appeared oi; i. the scence. Under this erroneous impression the Government issued the impugned seniority list of 1977 which has, in our opinion, rightly been quashed by the High Court.

D The first point raised by the counsel for the appellants was

that in view of the fact that the direct recruits possessed a higher qualification and were recruited through the Public Service Commission, they bad to be given priority in respect of seniority over the promotees.

It was further argued that as a result of the Government Orders, the direct recruits bad . to be adjusted alternately with . the promotees even thqugh the promotees had been appointed in their own quota long before the direct recruits joined the service.

We are, however, unable to agree with this somewhat broad and ingenious argument. It is true that where there are two sources of, recruitment and the Rules expressly provide that one source would have precedence over the othe).', then the position as con.tended by the counsel for the appellants would have to be accepted. In the instant case, we are unable to find any such inhi.bition or prohibition in the order passed by the Gov.ernment. In fact in N.K. Chauhan and Ors. v. State of Gujarat anti.Ors. (1) to w.bich one of us (Fazal Ali, J.) was a party, it was clearly laid down that so long as the promotees do. not exceed their quota.they were entitled to maintain their seniority as from the date 0f, their promotion, where this Court made the following observations:-

(!) ,[1977] I S.C.R. 1037.

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't.N. SHAii v. U.P. STATB (Pazal Ali, J.i

"'(_he; qlJp~ ru)~ !Ws not, inevJtablx, iµyoke the

l\PP.li~1Vi11n. qf; .Qle rota,. ru.le. Tl)e impct of this position is thJt if sufficiontn11mber of direct recruits have not been 'rorthon:iing.in the years since 1960 tq fill in

the, ratio. due to them and those deficient vacancies h!lye, b~~I) fi!led u, P, by proll)9tees, 11\ter dir~trecruits

ca, qno~ c!ailll 'deerni; d' dJl; t~~ oJ 11ppointme11t for senio

rity in serviee with ~!feet from the time, acc, Qrding to -

1 the rota or tum, the direct recruits vacancy arose.

SepioritY, wjll 4~Pe, t!_4 on te lngtJi of co, ntin119us qljicialti; ig, sc:_cy, ic\l a,\l,\l: cJ!, lµIQt b~ Qlilet by:l, aer, arrivals

frQJ1lAl~ QRefl.ipAret:s!lo, v, e t9_ th~ exteQt t9, Wi\ch any

f, es, s, J:lrolii, ote~$,~ ljj\, v.e; to Iii;. pusl)ed dqwn as indicated earlier. ·

+ + • ;+

'Seniority, normally, is.. mured by length of conti- 0 nuous, officiating service:_the actual is easily accepted as the legal, This doe's not preclude a different prescription, constitutionally tests being satisfied,

+ + + +

Prom9J~, re&ula!l1'1 appointed .dµriog, period A in

ex~~- Q); thi;..i.li.qll.9!1'. for.- waJ1t1of dire<:t recruits (rea BllOllbly,. sqll&IJbi" not,. sei; ure.d lll!d:because tarrying lql}l!Fr w.pµtd h, ljurMhe..administration) cap c!aim their whole length 0£, sje for, seniorit~" even,.against direct recruits who may tum up i)J succeeding periods .

Pr11motees w)10 hl)ve been_ fitted into va, c!lDCies beyoµd_ thejr quotadurin11 the perjod B-the year beiqg 1

regr, ded a~ the U)lit-must sufi'.r surviva) a,~ invaJ.id

apppinee~ acquiring new life when_ vacan_cies in. thi.r quota fall to be filled up. To that extenttbey willslep down, rather be pushed down as against direct recruits

W, h.<;\ we~. 11!.lr b11t regl\ll\dY appointe.d wi\bi11; their quQt.11.:' ·

This case clearly laid down three important p.rincip)e•.

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{lii~J 3 S.C.ll..

(1) Normal rule is that seniority should be measured by

the length of continuous officiating service unless a contrary intention appears from the rules.

We have already shown from the' Rules framed 6y the Government that the length of service was deter mined as the prime criteria for determining the senio- . rity.

(2) Promotees regularly appointed during a particular period in excess of their quota for want of di.rec! recruits can claim their whole length of service for senio rity even against direct recruits who may turn up in succeeding periods.

(3) Promotees who had exceeded their quota would have to be pushed down to accommodate direct recruits D coming after their appointment.

F ..

The case of respondents 2 to 5 clearly falls within the first two principles.

The admitted position is that respondents 2 to 5 bad not exceeded their quota of 50% when they were promoted as Senior Marketing Inspectors. In fact, they were promoted as Senior Marketing Inspectors Jong before tbe Government evolved the policy offilling up the posts of Senior Marketing Inspectors by direct recruits, It is also clear that none orthe respondents had encroacl; i ed on the 50% quota which was reserved for direct recruits under tbe new Rules framed by the Government.

In these circumstances, tlierefore, it was not open to the Government to prepare a seniority list by pushing the promotees far below 1he position of seniority which they would legally occupy merely to accommodate the direct recruits.

The rule of alternate seniority does not mean that the genuine seniority based on length of . service .by a previous employee should be completely overlooked or obliterated. . '

Reliance was, however, placed on an earlier .decision Of this Court in Bishan Sarup Gupta etc. v. Union of India and Os.(')

(I) (1975] I SCR 104.

T. N; SAXE~A v. U.P. STATB (Faza/ Ali, J.) 727

In this case also it was clearly held that the promotees could be pushed down only if they had exceeded the quota allotted to 'them.

In \he instant case not only the respondents 2-5 did not exceed their quota liut had secured , much higher pr.omotions by the time the direct recruits cameto be recruited and had to be reverted . to lower posts in order to accommodate. the direct recruits. Such a gross injustice, in our opinion, cann6t l\e countenanced by the rules or orders made by the Govern111ent11or can such a course of

aqion be spelt out from Bishan Sarup Gupta's case (supra) .

In B.S. Yadav and Ors. v. State of Haryana, and Ors.(1) the earlier decision of this CourfTllChquhan's dase (supra) was reiterated 11nd Chandrachud, CJ speaking for the Court orbserved thus :

"Is it proper and fair to.defer the confirmation of the projilotees merely because direct recruits are not available at that point of time so as to able the High Court to make confirmations from both the sources by rotation ?

This, precisely, is what the High Court has done by the impugned notification dated 25-8-'1976 and that is the. . reason why it has not confirmed ten more promotees in

Punjab, for whom vacancies are available within the quota of promotees. '

What is relevant is the decision of the Court that the quota rule will lie enforced at the time of initial recruitment. and not a:t the time of confirmation? ... .-. Seniority of promotees, according to this decision, .could not be upset by later arrivals from the open market, save to the extent to which any excess promotees have to be pushed down.''

It is, therefore, clear frqm an ana]ysis of the decisions of this Court cited before us that the quota rule and the rota rule must be applied in a practical fashion so as not to cause injustice to any employee. In the instant case, as the Government by virtue of the impugned seniority list had com'pletely upset the seniority of respondents 2 to 5, the principles governing the order were directly opposed to what has been held and pointed out by this Court.

The

,.\- (I) [1980) l S.C.R. 1024.

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728 SUPREME 'c6Ultr REPORTS '11982) 3 s.c.R_.

High Court, in our opinion, was fully justified in qushing the '"°' seniority list. •

Lastly, it was contended that the High Court while s!kikiilg down the seniority list has not struck down tlie GoV'etnmeilt 'Orcltr which bad nxed the rota and Wk 'quota rule. As indicate~ above, if the rota and the quota rules are properly interpreted, as h'eld by this Court in the cases cited above,. the Governmeht order canilOt 'be said to be bad or legally invalid. The defect Jay in the Govern' ment itself misconstruing its own order while issuing the seniority list, wbicb error was rightly 'corrected by the High Court. .

The Government shall now issue a fresh seniority liit lo 'the light of the observations made and principles enunciated by this Court and the High Court so as to avoid any revenioo of promote!s Who had been promoted within their quota as senior Marketing InsJ*ctors or abtlve.

D For the reasons given above, all the contentions raised &y the appellants are overruled and the a\)peal fails and is dismissed but in the circumstances without any order as to costs.

H.L.C.

Appeal dismissed.

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