'r-··

. 431

G.S. LAMBA & ORS.

UNION OF INDIA & ORS.

March !21985

[D.A; DESAI AND v. KHALID, JJ.] , c

cons(itution of India, 1950 Articles 14 and 16

Service-Constitution of-Recruitment from more then one source and quota prescribed for each source-Quota rule of recruitment inter linked with rota rule of seniority,__iJeviation and departure in implementation of service rule-Interference whether artises. f!D

Indian Foreign Service, Branch•n• (Recruitment, Cadre," Seniority and Promotion) Rules 1964, Rules 13,21 (4) and 25 (i) (ii) & 2F and 29(a).

Pro1notees and direct recruits-Fixation of seniorty-Promotees promOted to substantive vacancies on temporary basis-Continuous officiation whether confers advantage of seniority over-later recruits.

Power of relaxation of statutory 5ervice rules-Fai/Ure to record reasons -:Whether quota fixed for direct recruitment catJ be' r"elaxi!d.

The Indian Foreign Service Branch 'B' was constitued in 1956~ The statutory rules Indian Foreign Service Branch 'B' (Requitment, Cadre, Seniority and Promotion) Rules, 1964 came into force from May 6, 1964.

Commencing from the advent of the Rules, recruitment from three sources were made (i) direct recruitment on the result of a competitive examination held by the Union Public Service Commission,

(ii) substantive appointment of persons included in the selective list promoted on the basis of a limited c9mpetitive examination held by the U.P.S.C. and (iii) Promotion on the basis of seniority.

Rule 13 provided for recruitment to posts in the integrated Grades II and III of the General cadre, and that temporary vacancies shall be filled by appointment of persons included in the selec"t list.

Rule 21 laid down a general. provision for fixing of seniority, while sub-rule (4) thereof, prOvided that persons promoted or recruited on the basis of an earlier selection or recuitroent; shall be senior to those promoted or recruited on the basis of an earlier

~G

., H

.>.

SuPR~Mll COURf R~POR fs ti 9~51 3 s c.fL

selection or recruitment, shall be senior to those promoted or recruited. on the basis of a subsequent selection or recruitn1ent.

Rule 22 to 24 provided for seniority inter-se of direct recruits, and seniority interse of officers promoted to a grade on the recommendations of a departmental promotion committee.

Rule 25 provided for seniority inter-se of the officers appointed to a grade from different sources.

By a notification dated February 12, 1975, Rule 13 was amended to provide that recruitment to the three different sources of integrated Grades II and III to be: (i) !/6th of the subantive vacancies to be filled in by direct recruitment, (ii) 33!% of the remaining 5/6 of the vacancies to be filled on the basis of results of the limited competitive examination, and (iii) the remai ning vacancies to be filled in by promotion on the basis of seniority.

The petitioners in the Writ Petitions were selected by the Union Public Ser vice Commission according to the merits obtained at the examination of Assis~ tants conducted for the purpose for appointment to the post, and allocated to the _Ministry of External Affairs.

After the initial constitution of the service in .1956, they \\'.!?re offered. an Option whether they would like to join the I.F.S.

Branch 'B' in grade IV.

They opted and were inducted into the service. Later, they were promoted between 1976 and 1979 ffom grade IV to theintegrated grades II and III .

The Government of India published a seniority list of the integrated grades II and III as on June 25, 1979 and before objections taken by .the petitioners to the seniority list were dealt with, another seniority list was . published on June 30 1983.

The petitioners assailed the aforesaid seniority lists as violative of the constitutionally guaranteed equality of opportunity in the matter of public service in asmuchas direct recruits who crune into the .service long after the dePa.rtmental . pre:mts ere regularly promoted have been assigned seniority over the earlier prornoted departmental promotees.

It was further contended, that the seniority list of June 30, 1983 was objectionable as it leaves blank spaces for fliture recruits either as direct recruits or by limited departmental . examination and who are yet to come into the service to be placed over promo

teeslike, the petitioners _wJ:io were already in service for a long time.

The seniority lists having bCen drawn up on the principles of quota-rota and on fhe .facts of the case and the relevant rules were violative of Articles 14 and 16.

The writ petitions were cont_ested by the Central Governments contending that the seniority lists were drawn up in accordance with the principles governing seniority in the grade as per Rule 25, and that were recruitment to a service was . from more than one source and each source was assigned a quota of vacancies,

-the siniority was to be determined according to rota keepirig in view the available vacancies to each source. While departmental promotion is made after the Depa"rtmentill Promotion Committee makes recommendations recruitment "through examiDation is ti.me consuming there is a time gap between publication ' of results and joining of candidates and it is therefore not practically possible

-· to striCtly adhere to the quota in any particular year.

The Administration

" . •! a:i WlaA v. lrntON

 ovel'C11iie this difficulty by rotation of vacancies cnsurinz that over a period of

~. A ; time the required quota was fully met.

Bia~ spaces _were left in the seniority liSt-for _giving seniority to persons who have still nOt joined service and are likely to join at an . uncertain date. This process , would not push down the niority of the petitioners as they would occupy the same serial No •. in the seniority list.

When the Wrlt Petitions were being heard, Respondent No. 26 appeared and contested 'the claim Of thC petitioners contending that all Assistants in

Gcide IV who put in _ tbC required numbei of Years of servicC were eligibtefor participating in . the_ limited departmental : examination; promotions baSed on the result ot such an exanlination would therCfore not be violative of Art. 14 ,. Delay in holding of the examination cannot wo"rk to the disadvantage of those. who had taken the examination and qualified for promotion and therefore they ', should be accommodated in the vacancies \vhich had come into existence and where available for the quota from -the date the vacancies came into existence .• :-.The two 1sCniority- lists were consequently valid and in consonance with the

statutory niles. ·. -

Allowing the Writ Petitions,

HELD :

(1) The impugned seniority lists challenged by the petitioners have been· drwan up in violation ·-of the provisions of Arts. 14and16 of_the Constitution and therefore they are quashed.

The first respondent is directed to draw up fresh seniority list. All promotions - granted since the filing o(. the petitions must be readjusted.

(460BCJ

• E

Jn the inst.int. case;; _direct"- recruitment . had not been made for; years.

LiinitCd Competitive CxaminatioD. had atS:o not been held for years.. Promotions from the select list had been presumably in excess of the quota but the promo ,- ' tees were appoint"ed to substantive vacancies in the service and had been holding the posts as in the case of the petitioners for over 6 to .8 years. The promotions were not styled as temporary, adhoc or stop gap.

The impugned seniority

... F lists"were dnlwn up by rotatina: vacancies for each source, ana jf no_ recruitment was made from that source in a given year, the place in the list available to that source was kept open and a later recruit at any distance of.time fromthat source would be assigned that place over persons who were already recruited from other sources and would be working in_ substantive vacancies •. The direct ; recruit thus scores a march over a promoteC. . The seniority list is consequently : , violative of Articles 14 and 16 and therefore deserves to be quashed. .-: 1 c _ ,.

(453E ; C-DJ

(2) Once the promotees were promoted regularly to substantive vacancies Cveri if temporary unless "therC was a cha"oce of their demotion to the

- lower cadre, there_continuous-omCiation confers on -them an' advantage of

bCing senior to the later recruits under Rule 21(4)~ If by the enormous depar lure or by the power to relax, the -quota"iu!C:was not adhered to,- the rota rule

,, H

ti 9ssi 3 s.c.R.

for inter-se seniority as prescribed in Rue 25(i){ii) cannot"-be given.effect." Jn the absence of any other valid principle of seniority it is well established' that continuous officiation in the cadre, grade or service will provide a valid principle of seniority.

The seniority lists having not been prepared on this principle are liable to be quashed and set aside.

[459G-H ; 460A]

(3) Where recruitment to a service or a cadre is from more than one source, the controlling authority can prescribe quota for each source. where the quota is prescribed, a rule of seniority by rotating thC: vacancies can be a valid ru1e-for seniority.

However if the rule of seniority is inextricably inte~ twined with the quota rule and there is enormous deviation from the quoia rule, it would be unjust, inequitous and unfair to give effect to the rota rule.

!45613-C] ...

A. Janardhana v. Union of India & Ors. [1983] 2 SCR 936. B.S. Gupta

v. Union of India [1975] Suppl.

SCR 491., A.K. Subramana v. Union of India [1973] 2 SCR 979., P.S. Mohal and Others v. Union of Indio & Ors.

AIR 1984 SC 1291., O.P. Sing/a and Anr. v. Union of India & Ors. AIR 1984 SC 1595., S.C. Jaisinghania v. Union of India & Ors. [1967] 2 SCR 703., Bishan Sarllp Gupta etc v. Union of India & Ors. (1~75} l SCR 104, referred to.

(4) What is known in service Jurisprudence as seniority according to continuous officiation in the cadre from the grade has been statutorily recognised in Rule 21(4).

This is in tune with fairplay and justice and ensures equality as mandated by Art. 16.

[454E]

(5) A block o, f recruits in a given year coming from three independent sources may be integrated inter-se according to quota and rota. The block in a subsequent year would be always junior to the bloc of recruits in the earlier years. This is how Rules 21(4) and 25(i) (ii) can be harmoniously read and it is unquestionable that they operate in two different situations and both have to be given effect to.

[455A-B]

(6) Rule 29(A) confers power to relax any of the provisions of the 1964 Rules and this also comprehends Rule 13(1) which prescribes quota.

When the power to relax any Of the provisions is exercised, the ContrOlling Authority must be of the opinion that it is necessary of expedient so to do for reasons to be recorded in writing.

Failure to record reasons will not invalidate the exercise of power.

Once the power to relax a: mandatory rule exists and act_ion in derogation Or the rule has been repeatedly taken year afteryear~ itWOuld be a permisible inference that the action was taken in relaxation of the rule for which the power exists.

(457B-C}

Bachand Singh and Anr, v. Union of India & Ors. [1972] 3 SCR 898., Montreal Street Railway Company v. Normandi, AIR 1977 P.C. 142., State of U.P. v. Manboden Lal Srivastava (1958} SCR 533, N.K. Chandan .and Ors. v.

State af Gujarat [1977] 1 SCR 1037, referred to.

It s. w.iBA v. UNION (besal, },) 435 ,1 _.

ORIGINAL JURISDICTION

Writ Petilion (Civil) No. 13248 lO 13257 of 1983 ·

(Under Article 32 of the Constitution of India)

Madan Bhatia and Sushi/ Kumar for the Petitioners.

N.C. Talukdar, M.K. Ramamurthy, . R.N. Poddar, A.K. Nag,. and M.A. Rehman for the Respondents. . •.

Respondent No. 26 in person. ,,

The Judgment of the Court was delivered by

DESAI, J. We are back to square one. The same rigmarole of unending disputes as to inter-se seniority between jlromotees, , direct recruits and recruits as per the result of the limited competi' :·

tive examination with quota-rota as the guiding star for determinfog' inter se seniority are put in the lap of the Court. _

This time the service is the Indian For.eign Service Branch. 'B' ('IFS 'B' for short). This service. was constituted by the memo ran-: . dum of Govt. of India, Ministry of External Affairs dated July)6, .,

1956. The service was consisted of two cadres; a general cadre and two sub cadres l) Stenographer sub-cadre and 2) Cypher sub-cadre forming what is styled as special cadre. The general cadre com,. prises6 grades. Various provisions were made in the, Memorandum, for recruitment to various grades. Para V proVided for general conditions of eligibility for appointment in the service at the initial : constitntion. Para VI provided that recruitment to grade I, !Land III of the general cadre will be made on the recommendations of the _Senior Selection_ Board . of which the h.airman ~Ill b~ the Chairman of the Unton Pubhc Service Comm1ss10n or h1s.nom10ee. • Selec.tion to other grades will be made by the Junior Selection Boa; d in consultation with Union Public Service Commission. Para VIII-.. proviped for in\er se seniority of persons selected . for grades I, n. and III.of the general cadre. Appendix to the Memoran<l_um .sets . - out sanctioned strength of posts in various grades of1FS. 'B' and 'the. scales :of:PJ!Y attached to each grade.

A /.

G-'

Petitioners were selected by the Union Public Service Commis- siori according to the merits obtained at the examination conducted• for the purpose in 1955 for appointment to the post 9f Assistant, and were allocated-to the Ministry of External Affairs. After' ihc ·· H ii . ' -_._ .....

0 t, C

G .~

sui!R!lME CdiiRf REPORtS h9ssj 3 s.c.it

initial constitution of the service in 1956 petitioners were offerred an option whether they would like to join IFS 'B' in Grade IV at the time of its initial constitution. The memorandum constituting the service provided that future maintenance of the service would be governed by the rules to be promulgated for the purpose by the Central Govt. Accordingly by its notification dated May 6,1964, the Govt. of India, Ministry of External Affairs in exercise of all the powers conferred by Art. 309, promulgated Indian Foreign Service Branch 'B' (Recruitment, Cadre, Seniority and Promotion) Rules, 1964 ('1964 Rules' for short). By the afore-mentioned rules, grades II and III were integrated and the grade was styled as integrated grade II and III in general cadre.

Petitioners came to be 'promoted between 1976-1979 from grade IV to integrated grade II and III. The Govt. of India published. a seniority list of officers in the integrated grade II and. III of the general cadre of'IFS 'B' as on June 25,1979. Petitioners con-. tend that the seniority list is violative of the constitutionally guaranteed 'equality of opportunity in the matter of public service inas much as direct recruits who came into service long after the deparimenfal promotees were regularly promoted to the aforementioned grade have been assigned seniority over thO"earlier promoted depart- : mental promotees. Before objections taken by the petitioners to .. the seniority list were dealt with the Central Govt. in supersession : of seniority list dated June 25,1979 published another seniority list of the officers in integrated grade II and III of IFS 'B' as on June 30, 1983. Petitioners contend that the seniority list dated June' 30,1983 suffers from the same vice and is all the more objectionable inasmuch as it leaves blank spaces for future recruits either as . \ direct rdcruits or by limited departmental examination and who are yet to come into service to be placed over promotees like the . petitioners who have already been in service for a long time. The petitioners contend that the impugned seniority list appears to have been drawn up on the principle of quota-rota and that in the facts of this case and the relevant rules it is violative of Art. 14 and 16 of the Constitution. Petitioners also assert that if Rule 25(1)

(ii) i~ not. construed harmoniously with Rule 2i of the 1964 Rules, Rule 25(1) (ii) would be violative of the gurantee. of

equalty enshrined in Art.

16. To be precise, the contention is that where there is recruitment to a cadre from more than one source and the recruitment has to conform to the quota prescribed for each source, simultaneously interlinking the inter-se seniority in respect

b. S. tAMBA v. UNION (bestiJ, J.)

of recruits entering service from different sources to the quota for each source, if the quota reserved for any source is not filled in for a long time and the vacancies allotted to .the source arc carried forward and the later day recruits from that source are given deemed seniority over the earlier recruits from the other sources, it has the pernicious tendency to give an undeserved advantage to a later recruit over the earlier recruit and it would be violative of Arts .. 14 and 16. If it is held that Rule 25(1) (ii) has precedence oyer Rule 21, then Rule 25(1) (ii) is unconstitutional inasmuch as failure to recruit enough number of perso.ns to the extent of the quota reserved for the source in a reasonable time, in the. absence of any power to carry forward vacancies available to that source, the rota rule of seniority would be discriminatory in character and lead to denial of equality in the matter of appointment to public service. It was submitted in such a situation the rota rule would break down under the weight of massive departure from the quota rule, and the seniority rule being inextricable inter-twined with the quota rule if given effect to would be unjust, unfair and inequitous and would be violative of Art. I 4.

The Under Secretary in the Ministry. of External Affairs filed an affidavit-in-opposition. Averment in Para II of the petition that petitioners were working as permanent section officers in the integrated Grade II and III in the general cadre of the IFS '.B' was not controverted. After referring to Rule 13 of the 1964 Rules, it was stated that both the impugned seniority lists were. drawn. up in accordance with the principles governing seniority in the grade as per Rule 25. It was stated that where recruitmenMo a service or cadre is from more than one source and each source is assigned a quota of vacancies, in order to do justice to recruits from all sources, the seniority is to be determined according to rota keeping in view the available vacancies to each source. It was conceded that in integtated grade II and III, the recruitment is done from three

ifferent channels and quotas have been fixed for all these channels; but the recruitment is not done at the same time.

While the departmental promotion is made after departmental promotion committee makes recommendations, the recruitment through examination is time-consuming because there is a .time gap between publication of results and joining of candidates. It was further stated that it is not practically possible to strictly adhere to the quota in any particular year because candidates nominated by the Union Public Service Commission may even decline to join service and additional candi-

• •

Cl '

d G

I H

t.1

c.,

D ,,

F '

. I

438 Surui.!E COURT Rili>oa±S

!· < l. 1 ,. l198Sl 3 s.c.il.

dates can be taken from subsequent examinations only. It was further submitted that the administration overcomes this difficulty by adhering to the quota by rotation of vacancies ensuring that over a period of time, the quota requirement is fully met.

The two impugned seniority lists were sought to be sustained on the footing that t, y and large quota was adhered to and a slight delay or variation in time schedule would not permit an inference that as the quota

rule was not adhered to, the rota rule of seniority cannot be given effect. Replying. to the averments made in the petition that vacancies allotted to each source and not filled in at the relevant time were being carried forward for years and that when the carried forward.vacancies were filled, the recruits were giveu retrospective deemed date for seniority relatable to the coming into existence of the vacancy for that source without such a provision being found in . the relevant rules, it was stated that vacancies have been carrieo forward, if at all because of the non-availability of the candidates and in the absence of a stipulation in the relevant rules permitting diversion of vacancies from one quota to another, it was inevitable that the quota of vacancies allotted to a source have to be carried forward. Replying to the averments that in the impugned seniority list blank spaces have been left open for giving seniority to persons who have still not joined the service and are likely to join at some uncertain date, it was submitted that this process would not push down the seniority of the petitioners as they would occupy the same serial No. in the senioriiy list. ' When the matter was being heard in the Court, one Radhey Shyam Aggarwal, respondent No. 26 in the petition appeared and filed his affidavit.

He was recruited to Grade IV IFS 'B' in 1964 through the open competitive examination held by Union Public Service Commission. He was promoted to integrated Grade II and III on the result of the limited departmental competitive examination held by the Union Public Service Commission in 1977. He stated that all Assistants in the Grade IV who have put in the required number of years of service are eligible for participating in limited departmental examination and that as the equality in this behalf is guaranteed to all those similarly situated, such holding of examination arid promotion based on the result of the examination would not violate Art. 14. Referring to Rule J3, he stated that the recruitment to the integrated Grade II and III is from three independent sources with quota of vacancies assigned to each, the quota should be more or less adhered to so as not to give any unintended benefit

G. s. LAMBA v, UNION (Desai, J.) 439

to individuals entering through. the source of recruitment over others. It was stated that accepting the contention of the petitioner would tantamount to giving unintended benefit to the promotees promoted in excess of the quota temporarily. It was further stated that delay in holding of the examination cannot work to the disad- ; vantage of those who have taken the. examination and qualified for promotion and therefore they should be accommodated in the vacancies which have come into existence and were available for the quota from the date the vacancies. came into existence notwithstanding the fact that the examination was held at a later date and the results were published still later and appointment was made thereafter. In short, he submitted that the two seniority lists were valid and in consonance with the statutory rules.

Before we proceed to examine the contention of the petitioners on merits, it is necessary to refer to the rules of recruitment and seniority relevant to Integrated Grade II and III. Rule . 13 which provides for recruitment to posts in the Integrated Grade II and III of the general cadre reads as under :

"13. Recruitment to posts in the Integrated Grades II. and III of the General Cadre :

(a) One sixth of the substantive vacancies, in the Integrated Grades II and III of the General Cadre shall he filled by direct recruitment on the results . of competitive examinations held by the Commission for this purpose from time to time. The remaining vacancies shall be filled by the substantive appointment of persons included in the Select List for the Integrated Grades II and III of the General Cadre. Such appointments shall be made in order of seniority in the Select List except when, for r.easons to be recorded in.writing, a person is not considered fit for such appointment in bis turn.

(b) Temporary vacancies in the Integrated Grades II and III of the General Cadre shall be filled by the appointment of persons included in the Select List for the Integrated Grades II and III of the General Cadre. Any vacancies remaining unfilled thereafter shall be lil!e\I first from among the persons

,, A

~ .. :

SUPREME COURT REPORTS

[1985) 3 S.C.R.

approved for inclusion in the Select List and thereafter by the temporary promotion on the basis of seniority subject to (he rejection of the unfit of permanent officers of Grade IV the General Cadre and Grade II of the Cypher SubCadre who have rendered not less than eight years of approved service in any one grade or the two Grades and are within the range of seniority. Such promotions shall be terminated when persons included in the Select List for the Integrated Grades II and II I of the General Cadre become available to fill vacancies.

(2) The Select List referred to in clauses (a) and (b) of subrule {I) shall be prepared in the following manner:

(i) 33-1/3 per cent of the quota for inclusion in the

Select List shall consist of persons to be promoted on the basis of a limited competitive examination to be held by the Commission for this purpose from time to time ; and

(ii) the rest of the promotion quota for inclusion in the Select List shall consist of persons to be promoted on the basis of seniority subject to the rejection of the unfit of the officers of the Grade IV of the General Cadre and Grade II of the Cypher Sub-Cadre who have rendered not less than eight years of approved service in any one Grade or both the Grades.

Provided that if any person appointed to such a Grade is considered for promotion to the Integrated Grades Ir and III of the General Cadre in accordance with the provisions of this sub-rule, all persons senior to him in that Grade shall also be considered notwithstanding that they may not have rendered eight years of approved service in that Grade or Grades, as the case may be.

(3) The Controlling authority shall, from time to time lay ·

\)own t)le ratio i11 w)lich the available vacancies in the

G. s. LAMBA v. UNION (Desai, J.) 44t

Integrated Grades II and Jll of the General Cadre shall .be filled from Grade ~V of the General Cadre and Cypher Assistants of the Cypher Sub-Cadre. This ratio shall be fixed, as far as possible, on 'the basis of the relative strength of the respective cadre posts.

Illustration : If the strength of Grade. IV of the General Cadre is 720 and that of the Cypher Assistants of the Cypher Subcadre 120, the ratio for .promotion shall be 6 : !."

~ Chapter III contains provisions for fixation of seniority in different

-v grades. Rule 21 lays down a general provision for fixing of C

seniority. Sub-rule 4 is relevant, which reads as under : . • 1

'"21. (4) Subject to the other provisions of this rule, persons promoted or recruited earlier on the basis of earlier selection or recruitment shall tie senior to those prom°' ted or recruited on the basis of subsequent selection or recruitment.''

Rule 22, 23 anci 24 provide for seniority inter-se of direct recruits, seniority inter-se of officers promoted on the results of limited competitive examination and seniority inter-se of officers promoted to a grade on the recommendations of a departmental promotioµ committee respectively but .amongst themselves. Then comes Rule 25 which provides for seniority interse of the officers appoin; ted to !1 grade from different sources. It reads as under : ·

 "25. Seniority lnter-seor the officers appointed to a Grade from different sources. "

(!) Integrted Grade II & III of the General Cadre ..

(i) The eligible persons in Grade IV of the General Cadre and Cypher Assistants of th.e Cypher Sub- Cadre shall be arranged in separate lists in the order on their relative seniority in their, respective Grades. Thereafter the Departmental Promotion

Committee shall select persons for promotion from each list upto the prescribed quota as. indicated in rule 13 and arrange all the persons selected from

th.e twp )ists in a COl)So)i(lated order of merit which H

SUPREME COURT REPORTS !19851 3 s.c.R. ' . will determine the seniority of.persons on promotion to Integrated Grades II and III of the General Grade.

(ii) Direct recruits to a Grade and persons substantively appointed to the Grade from the Select List for the Grade shall be assigned seniority interse according to the quotas of substantive vacancies in the Grade reserved for direct recruitment and the appointment of persons included in the Select List, respectively."

i 964 Rule have been enacted in exercise of power conferred by the proviso to Art. 30~ of the Constitution and are thus indisputably statutory in character. Recruitment to Integrated Grade II and III of the general cadre is from two independent sources namely (i) direct recruitment on the result of a competitive examination held by the Union Public Service. Commission for this purpose from time to time and (ii) by. the substantive appointment of persons included in the Select List for Integrated Grade II and III of the General Cadre. The Select List for the purpose of filling vacancies by subl'tantive appointment has to be prepared from persons coming from

tw~ independent sources as required by Rule 13(2) namely persons to be promoted on the basis of a limited competitive examination to be held by the Commission for this purpose and promotion from Grade IV for inclusion in.the Select List on the basis of seniority in Oradd IV of the General Cadre and Grade II of Cypher sub-cadre, who have rendered not less thari 8 years of approved service in any grade or both the grades. In short, recruitment to Integrated Grade

'".

II and'iii will be from three sources: (il I/6th of the substantive,-..( vacancies to be filled in by direct recruitment on the result of a \ - competitive examination to be held by the Union Public Service Commission, (ii) 33l% of the remaining 5/6th of the vacancies had to be filled in by bringing them on the Select List on the basis of the res,; lts. , of a limited competitive examination and the remaining vacancies to be filled in by promotion on the basis of seniority from Grade IV of General cadre or Grade II of Cypher cadre who have rendeied not Jess than 8 years of approved service. There is thus recruitment to Integrated Grade II and III from three independent sources and a quota is fixed for recruitment from each source. The quota as hereinabove set out was introduced by amending Rule 13 as per notification dated February 12 197 5.

Earlier the quota for.

\liret recruits ws ~5'.Yp of the yacncies for a period of 5 years anq

.-k"·

G. s. LAMBA v. UNION (Desai, J.) 443

then 33!% of the vacancies.

The quota for the other two sources was 25% <if the remaining vacancies on the result of limited competitive examination and the balance to be filled in by promotion according to seniority in the feeder grade. Thus the quota for direct recruits was raised from 25% to 33!% and reduced to I/6th cf the vacancies i.e. 162.3%.

The impugned seniority lists have been drawn up rotating vacancies for each source and if no recruitment is made from that source in a given year, the place in the list available to the source as per rotation is kept open and a later recruit at any distance of time from that source will be assigned that place over persons who are already recruited from other sources and would be working in substantive vacancies. The net effect of a drawn-up seniority list in this manner is that a promotee in a given year even within its quota may go down to a much later direct recruit as the place in rotation is kept open for him without limitation of time. This is the crux of the matter .

A bird's eye-view of the relative position of the petitioners D who are all departmental promotees in the two impugned seniority lists would bring into focus the contours of controversy .

S.No. of the

petitioners Name of the petitioner Place in the 1979 seniority list

Place in the !983 seniority list -------------------------·------ I 2 3 4 -------------------------------

G.S. Lamba 397 163

2~ S.K. Chibber 380 147 3 .• Ku! Bhushan 375 144 4.

LS. Ailawadi 398 164 5.

K.D. Avdhani 379 146 6.

Q.L. Khanijow 387 153 7.

Ranvir Chawla 244 8.

N.D. Kharbanda 422 181 9.

V.N. Sharma 483 222

JO.

M. Jayaramai: 463 208 ---·-----------------.....,..--...,.,,...--.,,,...._,.....~------


11985] 3 S.C.R.

? ·· ltwiJI be presently pointed out that the petitioners whose :placements are indicated here and who have entered the service would be junior to those who enter later into service and would be placed at the vacant places in the list which are for purpose of clarity enumerated hereunder. It will show that those who are yet to come would become senior to those in service and have entered , servic.e number of years ahead to them. And one is not sure at what Jeogth of time the few entrants will enter service.

The inequity, if it can be so called may be demonstrably pointed at t!iis stage with reference to the seniority list of J 979.

Placements in this list at Sr. Nos. 294, 300, 305, 312, 318, 324, 330, 336, 342, 348, 354, 360, 366, 372, 378, 384, 390, 396, 402, 408, 414, 420, 426, 432, 438, 444, 456, 462, 468, 474, 480 and 486 have been kept open or vacant and are to be filled in at a later date by assigning seniority to direct recruits who would be recruited to the service for the first time after June 25, 1979 relevant to which seniority list was drawn up.

These later recruits at some unknown future date would score a march by nearly a hundred steps over the one at No. 486 already in.service by regular promotion. Similarly placements at Sr. Nos. 377; 381. 385, 389, 392, 395, 399, 403, 406, 410, 413, 417, 421, 424,

428. 431, 435, 439, 442, 446, 449, 453, 457, 460, 464, 467, 471, 475, 478;482, 485, and 489 have been kept vacant for recruits who would be recruited to the grade on the result of a ljmited departmental examination which would be held after June 25, 1979. In other words, whose who would come into serviee after June 25, 1979 either from tbe source of direct recruitment or from the source of limited competitive examination would fill in the above vacant places in the seniority list and thereby score a march over others who have not only been in service on June 25, 1979 and have been substantively promoted and have become members of the service and who have been included in the seniority list for the service.

Turning now to the impugned seniority list of June 30, 1983 which for all practieal purposes supersedes the seniority list of June 25, 1979, placements at Sr. Nos. 170, 175, 179, 184, 189, 193, 197, 203, 209, 215, 221, 227, 233, 239 have been kept vacant and these places .. would be filled in by direct recruits who would join at some future date not specified, after Jµpe

~O, 198~, The c; Jisturbin~

.Jr

...

G. s. LAMBA v. UNION (Desai, J.) ' . .. :

4AS

feature is that .. hen _direcJ recruitment will be ma_de .at some future dat~· -after June 30 1983, the. first vacant place. at Sr. No. 170.would b'e assigned to the first in the list of d"irect recruits: and even "though-he would enter the service for the first time somewere after June 30, 1983, he would be senior to the d_epartmental promote~ hglding l! s.11bs, tll, ntive post at Sc. No. 171 Sh. D. R. Goel from February 2, 1978 and he would also be se_nior to a recruit from the source of limited competitive examination recruited on- November 13, 1979 and placed in the seniority list at Sr. No. 172, one Shri Gurcharan S. Singh .. It would be advantageous to recall here that the.eligibility criterion for appearing at a competi tive examiriii'tion to be held by Union Public Servfoe Commission for direct recruitment as per Rule 20 of 1964 Rules would be in acco'r dance with the regulations made from time to .ti_me by the Govern ment in consultation with the Union Public Service Commission wherever such consultation is necessary.

The regulations were not referred to in the course of hearing of these petitions.

But if the criterion was to be. a graduate's degree than any-one appearing at a competitive examination after June, 1983 soon after graduation may not have passed HSC examination in 1976 or 1978 and yet the departmental promotees of that year would be junior to such a schoolian. This is the net out-come of seniority rule being based on rotation of vacancies available to each sour9c and quota not being filled in from time to time when the vacancies occur. The unfortunate outcome is t_he same as was noticed by this Court in A. Janardhana v. Union of India & Ors.(1) However, while keeping aide this unjust and iequiutous outcome and uninfluenced

~ by it, we may first look at the relevant rules for determining inter-sc seniority of persons recruited from three independent sources.

The service was constituted in 195~. However the stattory rules came into force on May 5, 1964.

The constitution ofthe service by it.memorandum of the Govt. of India in 1956 was, in exercise of the executive powers of the Government of India. The statiifoiy rules came into. force from May 6, 1964 and since then the service is governed b)' the 1964 Rules. Commencing from the advent of 1-964 Rules, the recruitment from three sources as actually mad~

may be noticed, Information in this chart is according to averments iri Para 16 bf the petition :

(I)

[19S3) 2 SCR 936:

c;:


11985) 3 S.C.R.

A ----------------------------- Year Departmental Direct Limited Deprtmental Promo tees recruits examination appointees n ----~------------------------ 1964 7 ~.

1965 6 JO 1966

1907 fc 1968 3 '../ 1969 8 1970

D 1972 34 25 ..

1973 29 10 1974 5 14 1975 39 II 2 • 1976 26 5 16 E 1977 II 4 1978 47 7 2 1979 36 6 2 1980 27 3 5 F 1981 24 6 1982 24 2 • 1983 24 2 .---------------------

360 G 63 91 ----------------------

With reference to Para 16 and the chart in the petition, in the return filed on behalf of the first respondent Government of India it is stated that the chart does not give true and correct picture and

H was denied. It is stated that the exact figures are given in the chart

anneited as Annexure 'A' t<;> t]]e rt\IP1 It reads as 11nder ;

• b. §. i.AMilA v. tlNION (DeJal, i.) 447

ANNEXURE'A' A

"Para 16 : The figures of recruitment. through the different

channel given by the petitioners are incorrect and

misleading.

Jr The correct figures .are as given below :- B

Year DPs

LDE DRs Remarks

1964 15 11

--'\

1965 §

1966 §

.• c y

1967 § 40 9

1968 §

1969 §

1970 D

1971. 33 19

1972 7

1973 35 18 12(18•) •Indent. Candid ates joined in 1975.

' 1974 - 5 5(6•) *Indent. Joined in 1976.

1975 35 IS 8 Joined in 1977 -7'

1976 30 s 7• *Indent F

1977 s 5* •Indent • • 1978 55 19 4• *Indent:

1979 36 18 14* . *Indent

1980 44 15 4• *Indent G

•. J: 1981 24 12 1• *Indent

1982 24 12 8* *Indent." -----

-J<.

As far as the figures of direct recruits given fot the years I 97.3

~ to 1982, the column recites that the figures therein meritioned are of

t1§ss1 3 s.c.k.

the indent sent h¥ the Union Public Service Commission for making direct recruitment bJt there is nothing to show how many joined as direct recruits. Accepting the information as supplied by the respondent Union of India, what strikes one at a glance is that the recruitment from three sources was never according to quota nor according to available vacancies for each source. Record as discloseJ does not indicate that the vacancies available to a particular source but not filled in during the relevant period were carried forward.

No attempt was made to undertake direct recruitment in the years 1965, 1966, 1968, 1969, 1970, 1972, 1974 and 1977. Similarly limited competitive examination was not even held in the years 1964, 1965, 1966, 1968, 1969 and 1970.

Indisputably there was large scale departure from the quota rule.

It may also be mentioned that in the counter affidavit, no attempt has been made to give information about the vacancies available in each year and their splitting up acc0rding to the quota for each source and to point our whether in any given year there was a shortfall in the recruitment from a particular source and or there was excess recruitment from some other source.

The first thing to be noticed is that the statutory rules do not provide for carry forward of vacancies occurring in a given year to the next recruitment. The feeble and inaudible plea to justify carry forwa, rd of vacancies was non-availability of candidates for filling in vacancies available to a source.

It is of some importance to note that the petitioners are !llembers of the service and belong to Integrated Grade II and III in the General Cadre of IFS 'B'. .They hold substantive posts and there is nothing to show that their promotions when made were either temporary or adhoc or till such time as a regular recruit is available from the other source according to quota, though their promotions appear to be in excess of the quta available for the source. The quota is related to vacancies.

Ru)e 13(1) which provides for quota clearly recites that I/6th of the substantive vacancies in the Integrate4 Grade II and III of the General cadre shall be filled in by direct recruitment etc. Therefore, it is undeniable that quota is related to vacancies.

If the quota has to be scientifically implemented it would be incumbent upon the first respondent to satisfacto rily establish the number of vacancies available every year since the constitution of service ; the number of vacancies available according to quota reserved for each source ; the recruitment done during the

i:J. s. LAMBA v. tl1'11ofl (Desai, 1.)

year from that particular source and to state whether a'll the. vacan-. cies allocable to each source were filled in from the concerned source and if not so filled in, whether any recruitment in excess of the quota was made from other sources.

It must further be shown whether' such excess recruits were given temporary, stop-gap or adhoc pro-'

otion subject to availability of candidates from other sources who

were entitled to fill in those vacancies and that this was done for a short period .and till the candidates, regularly recruited from the. sources to which vacancies were allocated were available to fill in the-' vacancies held by the rcruits in excess of the quota from the other sources. No such information was forthcoming. The only justifi-· cation offered for not filling in vacancies by recruits from each'

source according to its quota is that the procedure for direct recruitment as also the procedure for holding limited competitive examination is prolix, time'consuming and dilatory and therefore the recruitment made at a later date from such source could not work to the disadvantage of such recruits by pushing them down.below those"' whose promoted in excess of the quota available to that source. ·

If Rule 25(l)(ii) which provides for inter-se seniority of direct recruits to a grade and persons substantively appointed to the grade from the select list for the grade, upon its true construction, permits leaving open placement in the se11iority list to be filled in at a later date by recruits coming from the 'ource for wboni placements according to rotation are kept open, would such rule or such implementation of the rule of seniority 'be violative of Art. 16 .?

It is too late in the day to dispute that it would be open to the" Government,.while constituting a service, to provide for recruitment' to it from more than one source and also to reserve quota for each source. As a logical corrolory, it would equally be open to the Government to provide for seniority rule related to rotation of vacan-., .cies. Shortly this is called quota rule of recruitment and rota of rule of seniority inter-linking them. So far there is no controversy.

The contention of the petitioners is that in implementing this rule there has been such large scale deviation that it .results in denial of equality to the members of the service similarly circumstanced.It will be presently demonstrably established that where rota rule of senio' rity is interlinked with quota of rule of recruitment, and if the latter is unreasonably departed from and breaks down under its own weight, it would be unfair and unjust to give effect to the rota rule of seniority. To some extent this is not res integra. Though some advance bas been made on this proposition in later decision~. · ·

' A

if, H

h9ssj :l s.c.il.

In B.S. Gupta v. Union of India(1) a Constitution Bench of this Court after taking note of the fact that 214 posts were upgraded from Income-tax Officers Grade II to Income Tax Officers Grade I, held that with the upgrading of a large number of posts and the appointment to them of promotees, the quota rule collapsed and the seniority rule having a link with the quota rule would meet the same fate.

In A.K. Subramana v. Union of India (2) it was observed that 'when recruitment is from two or several sources, it should be observed that there is no inherent invalidity in introduction of quota system and to work it out by a rule of rotation. The existence of a quota and rotational rule by itself will not violate Art. 14 or 16 of the Constitution. It is the unreasonable implementation of the same, which may, in a given case attract the frown of the equity clause.'

In P.S. Mahal and Others v. Union of India & Ors. (3) the Court after reiterating the afore-quoted observations in A.K. Subramana case observed as under :

"The r()tational rule of seniority is inextricably linked with the quota rule and if the quota rule is not strictly implemented and there is large deviation from it 1egularly from year to year, it would be grosly discriminatory and unjust to give effect to the rotational rule of seniority.''

In the period between the decisions in B.S. Gupta's case and A.K.

Subramana's case, this Court threadbare examined the legal position in relation to quota-rota rule and a large scale deyiation from it with its consequent effect on the seniority rule. In Janardhana's case this Court in terms held that 'As quota rule was directly interrelated with the seniority rule, and once the quota rule gave way, the seniority rule became wholly otiose and ineffective. It is equally_ well-recognised that where the quota rule is linked with the seniority rule, if the first breal::s down or is illegally not adhered to giving effect to the second would be unjust, inequitous and imrroper. It may incidentally be mentioned that this view was approved and reiterated in P.S. Mahal's case. ------

(I) [1975] Suppl. SCR. 491.

(2) [1973] 2 SCR 979

(3) 'AIR 1984 SC 1291

lJ. s. 1.AMBA •. UNION (.besal, Ji

In o:P. Sing/a and Anr. v. Union of India & Ors. (1) Chandra chud, C.J. speaking for the majority after taking note of the proviso to Rule 7 and Rule 8 of the Delhi igher Judicial Service Rules, 1979 held that upon its true interpretation, the rroviso prescribed a quota and Rule 8(2) provided for rotational system of giving seniority

according.to the quota. After taking note of the earlier decisions it.

as held that where recruitment is from two independent sources, the rule of seniority on a rotational basis could not be held to be .unconstitutional or violative of Art. 16. The Court then proceeded to examine the effect of enormous departure in the matter of recruit' ment according to quota and its shadow over the interlinked seniority.

Says the learned Chief Justice : , "However, , instances are not unknown wherein though the provision of a rule or a Section is not invalid, the manner in which the provision is implemented in' practice, leads to the creation of disparities between persons, who, being simi- . larly, circumstanced are entitled to equal treatment:"

After takingnote of Rule 16 and 17 of the same rules, it was obser ved as tinder :

"Promotees who were appointed under Rule 16 have been officiating continuously without a .break as Additional District and Sessions Judges for a long number of years. It is both unrealistic and unjust to treat them as aliens to the Service merely because the authorities did not wake \IP to tbe necessity of converting the temporary posts into perma nent ones, even after some of the promotees had worked in those posts from five to twelve years."

It was found as a fact that the provision prescribing.the quota of direct recruitment and promotees was put in cold storage for. a long time. After noticing this ugly fact, the majority proceeded to observe as under :

"In these circumstances, it will be wholly unjust to penalise the promotees for the dilatory and unmindful attitude of the authorities. It is not fair to tell the promotees that they will rank junior to the direct recruits who were appointed five to ten years after they have offciated continuously in -....,...------

(I) AIR 1984 SC 1595

SUPRllMB COlJRt RllMRTS i19s5J s.c.ll..

the posts created in the service and held by them though such posts may be temporary. This Court atleast must fail them not."

The Court after taking note of the fact that large number of persons were promoted to temporary posts and such temporary promotees officiated on substantive posts held that the proviso to Rule 7 which prescribes a quote for direct recruits and provide for rotational system of vacancies between them and the promotees who were appointed to the service, the rule of seniority according to rotation of vacancies between promotees and direct recruits according to quota must inevitably break. down when promotions of promotees are made to the service under Rule 16 and 17. The majority quoted with approval the following passage from the judgement in Janardhana's case:

"But, having done that we do propose to examine and expose an extremely undesirable, unjust and inequitable situation emerging in service jurisprudence from the precedents namely that a person already rendering service as a promotee has to go down below a person who comes into service decades after the promotee enters the service and who may be a schoolian, if not in embryo, when the promotee on being promoted on account of the exigencies of service as required by the Government started rendering service. A time has come to recast service jurisprudence on more, just and equitable foundation by examining all precedents on the subject to retrieve this situation."

The learned Chief Justice made a pertinent observation that the observations in the extracted passage are not without relevance to the case before him and lent considerable support to the conclusion which bas been recorded in the judgment. Thus the ratio jn Janardhana' s case has stood the scrutiny of two later decisions of different benches of this Court. It may incidentally be mentioned that the minority view also affirmed the approach and the observations in Janardhana's case.

The sum total of the afore-mentioned three judgments may be freely re-stated in the telling expression in Janardhana's case which reads as under :

t;, ~. LAMBA v. UNION (Desai, J.)

"It is therefore time to clearly initiate a proposition that a direct recruit who comes into service after the promotee was already unconditionally and without reservation promoted and whose promotion is not shown to be invalid or illegal accordini: to the relevant statutory or non-statutory rules, should not be permitted by any principle of seniority to score a march over a promotee because. that itself being arbitrary would be violative or Arts. 14 and 16."

4S~

Now proceedini: on the assumption that Rule 25 (l) (ii) is valid and therefore seniority inter-se between 'recruits from three different

sources has to be computed according to the quota by rotating subs- . 'tantive vacancies in the grade reserved for each source, if in actual \..# implementation it creates disparities between persons who are'.similarly circumstanced and thereby deny equal treatment, the rule would be violative of Art. 16. The outcome is not on account of an invidious implementation of the rule but non-implementation of a part of ) rule for years. The end product as will be demonstrably established is unjust and unfair and yet this unjust and unfair action is being supported by the Union of India which was responsible for utter inaction in impJementing the rule in its letter and spirit and for unreasonably • long intervals. As pointed out earlier, direct recruitment ha1 not been .- made for years. Limited competitive examination has also not been held for years. Promotions fiom the select list have been presumably in excess of the quota but they were appointed to substantive vacancies in the service and have been holding the posts as in the case of petitioners for over 6 to 8 ye us. The promotions were not styled as temporary, adhoc . or stop-gap. Blanks related to allocated , vacancies kept open for future direct recruits and candidates quali-

-~-fying at limited competitive examination in the seniority list indicate : • that if the next direct recruitment is made, say in 1990 and the limited competitive examination is held in 1988, the recruits from the aforementioned two sources will have to be placed a(Sr. No. J 7g . in the case of direct recruits and little} down below. i~ case of a candidate qualifying at the limited competitive examination. The . direct recruit already placed at Sr. NoDn 170 fin:fJ990 would score a march over departmental promotees of I 978 and persons in service after qualifying at the limited competitive2 examination .;,.. in 1988. The emerging situation would be in pari materia with what was found by this Court in Janardhana's case and 0.P. Sing la's case and the reasons therein mentioned will mutatis mutandis apply for quashing the seniority list for the self same reason. ·

;\. ..

B ,.

D .. ., ..

~54 119851 3 s.c.!l.

' Approaching the .matter from a slightly. different.angle, in our Qpinion, Rule 21(4) and Rule 25(1) (ii) both, can be. harmoniosly read beca.use they.operate, in .. two. different areas. 'Rule.2,1(4) provides that , subject to. other .. provisions of this . rule .. (not aU rules)

persons :promoted, or recruited earlier on the basis of. ear.lier selec- . tion:or recruitment shall be senior to. those promoted or recruited on the

0 basisof subsequet selection or recruiiment. -I(the expression 'selection' refers:to those promoted via the select list and the expression: 'recruitment'. 'refers , to those . entering >ervice by direct r.Cruitment,: in view .of Rule 21(4)° those who' enier-servie by 'recitiltment'. or ·; election'.·. at any' time - wiil ~!ways 'iiecessa; iiy

0 be senior" to those promoted ' or 'recruited:' o'n ihe basis: of a subseqent

seletlon .p~ 'recruitmenL _ This _is, -what Rule 21(4) provides;,, In temiS. it caters to a situation where recruitment or . selection is at intervals with a time lag .. Vacancies in.th<;, cadre or the grade arise

, e_vryla.r, .omaUy_ th". sub, sta?tive vacancie~ i? .the carehave .,, .to be filled in as they.occur or within a reasonable time., :The

process of si:lection arid 'reci:uitent must coniinuou-sly. be in opea ' tion roughly from year to. year. By the.impact. of Rule 21(4): the 'selection ' or recruitment of one . year shall have . precedence over ' ' • • ! ' • •• • • - - - • ' ' •, • •• '.' • selection or recruitment of the next year and this 1s what is known ' . 'ill semce jurisprudence as seniority' according' to. continuous oflicia-

'tioti in the cadre or the grade which has been statutorily: recognised

1 in sub-rule 4 of Rule 21. '. This is 'in tune with' fairplay and justice , and ensures equality as mandated by Art. 16: Now Rule 25(1) (ii) . provides for integrating direct recruits and persorisentering via

the select list to a grade. It is implicit in sub-clause (iiJ of Rule ).. • 25(1) tl; tat it would operate at a time wheri in a given year almost

-;- '-< sim_ul!"ncouly or: within a -measurable distan7e. from, each 'either • l , recruitment. 1s made from all the other sources. ·. 'fo illustrate if in _, a given year candidates are selected for appointment to.the grad~ ;_by .direct recruitment as also by holding the liinitea cciinpetitlve "examination and giving promotion and if all 'the three enterthe . service. or' the grade at . or almost at the same time or within the

.'yea~ and -withi'.1, a reasonable time Jag from each oiher, a question

~· G ::; s bound to arise.how to integrate all of them entering service (rem

.different sources in the common seiiiority list., Rule :.25(1) (ii) i- ·"caters to. this situation and helps in integrating appointees from ·: three sources to .be integrated into. common seniority list acci>rding to quota, : Now _contrast Rule 25(1) (ii). with .. Rule 21(4) and the meaning of Rule 25(1) (ii) reveals itself and becomes: clear and understandable. A block._ of recruits in a given year coming from

G. s. LAMBA v. UNION (Desai, J.) ·.· 455.

three independent sources may. be integrated. inter-se according to. quota and rota. The blo.ck . in. subsequent year would. be always, junior to the block of .. recruits in the earlier years.,. This .is how, Rule 21(4) and 25(1) (ii) can be harmoniously read. and it is unques-. tionable that they operate in two different situations and both have to.be given effect to': .. •. . .. •· . . . .. .. , ... _ •. .. :

- , , - C' , • • ' , • ' ' • • '• • • •

- > • ' < ! ,, ' .... Now turning. to the impugned. seniorty. lists, what the Union.' of.India appears to. h~e done, is that it has applied the quota and'

~ . - . - - . • ' ' ' ' . ' : ' ' . •', • . . .. . ,. -t rotated the vacancies. but where candidates from a particular source were not 'available,' , the' .vacancies 'were deemed to 'be kept open" (Scime kind, -of carry, forward)·.·. to l)e filled iti by later recr)litIDent.; from the same. source years. after the vacancy occurred, but , in.the.· meantime the vacancy was ftlfed inpreumab}e by exce~S .. reC11Jitmn< from the other sources. That is dearly eitner non-implemeiitatioii of the quota rule or ma!-functioning of the quota rule and yet the rota" rule • is adliered to. whicli is' botii impermissible under the Rules as ell as.unjust; unfair and inequitcius being violative 'or Aits:• .. '

14'and 16. • .... · ... .. · ··· .... · c "• - ·: '~= t r r It' was however contended on behalf of the respondents that the quota prescribed by Rule 13(1) being mandatory in . character, any appointment' in excess of the quota 'in anj' year would 'render the cxc.Ss appointees as irregularly appointed and they.would not become members ., 0£: the service .. and. hang outside .the Ser.vice/ and can be demoted. It was said that on'ce recruits are' available from the source for which cjuota was prescribed, the prmotees in cess

of their-quota can and must be replaced by later entrants. It was submitted: tnat such" excess promotees' have to be. demoted but to save them1 froin this harsh situation,•the courts have evolved ar rule that they may be pushed 'down and regularised in S)lbsequent years.

This indulgence, it was said, cannot -be claimed : a• a matter of right and therefore such excess prcimotees cannot claim seniority over recruits from other sources who may have come at a later date:·· Reliance ; as : placed . in two decisions of. this' Court in s.a,

Jai.<fngha'ni v.' Unidn of' India'& OrS. (1) and Bishan Sarup Guptaetc.) v".' Union of India& Ors;(') Tbesetwo'decisions are of little help' illview of the later ldecisionHlirctly on the point and discussed hereiriabove. · · ' _. " . ' .

. ,, n . ' I

'(1)' {19G7J 2 S.C.R. 703. . . ' • •. ' ·-. - . -• -- , r .. -, .. ·- •• - . ·!fl !197~ 1 S.C.R. 104,

' .

Ii'

'-i F

SUPREME COURT REPORTS !19851 3 s.c.R.

The language of Rule 13(1) appears to be mandatory in. charac ter. Where recruitment to a service or a cadre is from more than one source, the controlling authority can prescribe quota for each source. It is equally correct that where the quota is prescribed, a rule of seniority by rotating the vacancies can be a valid rule for seniority. But as pointed out 'earlier if the rule of seniority is inextricably intertwined with the quota rule and there is enormous .,.,_. deviation from the quota rule, it would be unjust, inequiutous and unfair to give effect to the rota rule. In fact as held in O.P. Sing/a's case, giving effrct to the rota rule after noticing the enormous departure from the quota rule would be violative of Art. 14. Therc-"'- fore assuming that quota rule was mandatory in character as polnte<I ' out earlier, its departure must permit rejection of rota rule as a

-..J valid principle of seniority. ' .

The matter can be viewed from a different perspective. The question that may be posted is "Was the quota rule mandatory in character''? Rule 29(a) confers power on the controlling authority to relax any of the provisions of the 1964 rules. It reads thus :

"29(a) Where the Controlling authority is of opinion that It is necessary of expedient so to do, it may be ordered, for reasons to be recorded in writing to relax any o( the pro. visions of these rules with respect to any class or categof¥ of persons or posts,

Provided.that in relation to posts falling within the purview of the commission, no order in respect of a class or -(- category of persons or posts shall be made except after -· consultation with the Commission." '

'The controlling authority is defined in Rule 2F to mean the Government of India in the Ministry of External Affairs. Therefore the Government of India in the Ministry of External Affairs enjoys the power, if it is necessary or expedient so to do, to relax any of ihe provisions of these rules, with respect to any class or category of persons or posts.

The proviso carves out an exception that fo relation to posts falling within the purview of the Union Public Service Commission no order in respect of a class or a category of pers9µs or pos\s s~ll be µiad~ eecept after opsµltatio11 with tba

G. S; LAMaA v, UNION (Desai, J.) 457

Commission. We will presently deal with the effect of non-con snltation of the. Commission in a given situation. -However, Rule 29(a) indisputably confers power to relax any of the provisions of the 1964 Rules which shall also comprehend Rule 13(1) which prescribes the quota. Undoubtedly, when the power to relax any of the provisions of the Rules is exercised, the controlling authority must be of the opinion that it is necessary or expedient so to do for reasons to be recorded in writing before exercising the power.

It is well-settled that failure to record reasons will not invalidated the exercise of power. Once the power to relax a given, mandatory rule exists and an action in derogation of the rule has been repate dly taken year after the year, it would be 'a permissible inference that the action was taken in relaxation of the rule for which the power exists and in this case is located in Rule 29(a). To hold' otherwise would be to come to rather disconcerting conclusion that a body like the Government of India acted deliberately fa contra vention of the mandatory rule from year to year. It would as far as possible be proper to avoid such an inference l!nless it is inescapable. In this case as pointed out earlier for years 1965 to 1972 there was no direct recruitment and even for the later years only art Indent was placed and not reqruitment done, and during all these years a lar&e number of persons from Grade IV were promoted as departmental promotees to the Integrated Grade II and III. -A body like the Government of India presumably knew that ther~ 11 a statutor-y quota for recruitment but Is also presumably knew th11f it bad powerto relax and for exigency of service repeatedly actCll

In derogation of the quota rule, and therefore it would be pennis. slble to infer that the action was taken in relaxation of the manda• tory quota. rule. This view which we are taking is in accord with

__ ::...__ ., . the decision of the Constitution Bench In I'ichan Singh and Anr. v ,>7 " Union of India & Ors. (1) wherein this Court held that though tho

' direct recruitment was made In consultation with the Union Public

Service Commission though not In accordance with the prescribed procedure namely on the result ofa competitive examination,-- as the country was in a state of emergency, the appointment and

selection was made by interview only and that such appointment by direct 'recruitment was made by relaxation of the relevant rules and the power was located in the Government of India to relax the rules. No specific order was shown in that case vouchsafing that the appointments were made in flxtion 9f 'he PJI~ but tlj~ ¢0\lft '?=!------

!J

c .,.,

D "

,458


[1985! 3 S.C.R.

inferred from various relevant circumstances then prevailing that the appoints not in consonance with the prescribed procedure for direct recruitment must have been made in relaxation of the rules.

When the question again came up in Janardhana's case the Court held that if' direct recruitment was made in relaxation of the relevant rules, the same reasons will mutatis mutandis apply to hold that promotions in excess of quota were given by relaxing the rules. It is therefore reasonable to believe in this case that though the quota was mandafory it was not adhered to by exercising the power ()f relaxation both qua persons and posts.

It was however contended that it is not permissible to infer that promotions in excess of quota were given by relaxing the quota

rule.becase the posts in Integrated Grade II and III were within the purview of the Union Public Service Commission and the proviso to Rule 29(a) mandates that power to relax is hedged in with a condi

tion that it can be done after consultation with the Commission, and there is nothing to show that the Commission was ever consulted.

Undoubtedly, the proviso to Rule 29\a) requires that the controlling authority cannot relax any of the provisions of the rules in respect of posts which are within the purview ofthe Union Public Service Commission unless after consultation with the Commission. It was

sbmitted thai nothing is placed on the record by the petitioners to show that power to relax the quota tule was exercised after consultation wi.th the Union Public. Service Commission.

Assuming that there was no consultation, would the exercise of power to relax be v.itiated and .the appointments made, in rclaxatjon of the mandatory quota rule would be ab initio invalid. Commencing from the deci sion of the Privy Council in Montreal Street Railway Company v.

Normandi,(1) it is well settled that 'when the provisions of a statute relate to the performance of a public duty and the case is' such that to hold null and void acts done in neglect of this duty would work general inconvenience or injustice to persons who have not control over those entrusted with the duty and that at the same time would not promote the main object of the Legistature, in has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done.' The

view was expressed in the context of the failure to revise list of Jurors by the Sheriff according to the revised statutes of Quebec and conviction was challenged on the ground of mistrial held by selectin~ ---------

\I) AIR !977 f, C, 14~

G. s. LAMBA v .. UHION (Desai, J.) 459

.)urors.from unrevised lists. rThe challenge failed.

Coming home .in State of, U.P. v. Mqrbodan l.a./.Srivqstava(l) a Constitution Bench of this Court speifically held that where consultation with the.Public Service Commission is provided as required by Art. 320(3)(c) of the Constitution such provision is not mandatory and they do not confer any rights on public servants so that the abse.nce of consultation 9r 'irregularly. in.consultation doe8 not afford him a cause of actioll'in

a. court of law. There are number of subsequent decisions to which our attention .was called. reiterating the same principle. Therefore . assuming. there was failure to consult the Union Public Service Commission .before exercising . the power to relax the .mandatory quota rule and fu_t:ther assuining that the. posts in Integrated Grade Hand III were within the purview of the Union Public :Service Commission and accepting for Jhe time being that the Commission was not consulted before the power to relax the rule was exercised yetthe action taken would not be vitiated nor would it furnish any help to Union of India which itself cannot take any avantage of its failure to consult the Commission. Therefore it can be safely stated that the enormous departure from the quota rule year to year permits an inference that the departure was in exercise of the power of telaxing the quota rule co.nferred on the controlling authority. Once there is power to relax the mandatory quota rule, the appointments made in excess of the quota fr-0m any given source would not be illegal or invalid but would be valid and legal as held by this Court in N.K.

Chandan and Ors. v. State of Gujarat('). Therefore the promotion of the promotees was regular and legal both on account of the fact it was made to meet the exigencies of service in relaxation of the mandatory quota rule and to substantive vacancies in service.

Once the promotees were promoted regularly to substantive vacancies even if temporary unless there was a chance of their demotion to the lower cadre, their continuous officiation confers on them an advantage of being senior to the later recruits under Rule 21(4).

If as stated earlier by the enormous departure or by the power to relax, the quota rule was not adhered to, the rota rule for inter-se seniority as prescribed in Sec. 25(1)(ii) cannot be given effect.

In the absence of any other valid principle of seniority it is well established that the continuous officiation in the cadre, grade of service will

----~-------

(I)

[19581 S.C.R. 533.

(2) [i977] I S, C.R, 1037,

r.B


11985] 3 S.C.R.

iA provide a valid principle of seniority. The seniority lists having not been prepared on this principle are liable to be quashed and set aside.

Accordingly these writ petitions succeed and the rule is made absolute. The impugned seniority lists challenged by the petitioners have been drawn up in violation of the provisions of Arts. 14 and 16 of the Constitution and therefore they are quashed. The first respondent is directed to draw up fresh seniority list in the light of the observations made in this judgment within a period of three months from today. All promotions granted since the filing of the petitions are subject to the decision herein given and t)ley must be readjusted to be brought in consonance with this judgment. It the circumstances of the case, there will be no order as to costs.

N.V.K.

Petition allowed.