10.64

BHAGW AN DAS AND OTHERS

INDIAN COUNCIL OF AGRICULTURAL RESEARCH ·

A.ND OTHERS

April 30, 1985

[R.S. PATHAK AND V. K!!AUD, JJ.j

Constitution of India 1950, Article 14 and 16,

l.C.A.R.-Senlority first of Asslstants-Promotees and direct recrul, s Placement in List Promotees contending violation of guarantee of equality-Satisfactory proof of date of appointment in grade-Necessity of.

The 39 petitioners in the writ petition were promotees to the post of Assistant in the Indian Council of Agricultural Research-first respondent. The second respondent was the Union of India and respon('ent Nos.3 to 31 were direct recruits to the same post. Respondent Nos. 32 to 88 were also promotees and impleaded as proforma respondents. The petitioners contended that they belonged to the service of the Central Secretariat. (Department of Agriculture) and the Society was a part of that Department till 1.4.1965 on which dat€~ the Governrilent of India deided to reorganise the society into a fully autooon1ous organisa_tion with its own Secretariat. The petitioners opted to join the Fervice in the Society on such reaorganisation. Respondent Nos. 3 to 31 Were directly recruited after an open competitive test. The seniority list was prepared by the Society in 1976 showing the relative positions of the promotees and the dfrect.

recruits. A second seniority list was published by the Society on 7.4.198·1 and this list brought changes in the earlier list and pushed down the promotees from. the positiops they occupied in that list. The petitioners contended that this seniority list should be quashed on the ground that it violated Artic1e 14 and i6 of the Constitution, as recruitment rules layin~ down the terms of.servict:s in the Society were not available seniority had to be fixed on length of service.

They were also entitled to seniority on the basis of the length of their service from the' date of they came into the Society by virtue of the option. The case of the contesting respondents was that seniority has to be fixed not with reference to the reorganisation of the Society but on _the date of their appointment oo a regular basis, and that the petitioners bad to establish that they were duly appointed in the service on a regular basiS when they exercised their option.

Pismi$Sin' the Writ fetiion~

BIJAGWAN DAS v. COUNCIL AGR!CUL1URAL RESBARCll 1065

HELD : t. In the absence of satisfactory proof of the date of ?.PPOintment of the petitioners in the grade as assistants in the Society he petiiiOnes cannot successfully urge violation of Article 14 and 16 of the Consti:ution. -Nri

great injt.istice was done to the promo tees in the preparation of the tist. Goem, s through the list. one finds that the gap between the prornotees and the direct

reci:uits is Of a very. short duration .-and not wide as in other cases.

Piirec~ recruitment was made first only \967. However, to work out the quota sj.rStm an earlier date of apr.ointroent bad to be. given to the direct recruits. Thi$ could not be avoided. This has not done great injustice to the petitioners. This dislocation was limited nly to a period between 1965 to 1967 and 196710 1971 and not a fairly long period of time. [1073 CEl

The memoi'andUm Annexure-4 dated 20th April, 1970 clearly states that the principles to determine the inter-se seniority of the ministerial staff in the reorganised Council was considered by the Society and that it was decided

'\that the seniority of the Ministerial taff would be fixd on the basis. f

11date of 'appointment made on a regular basis." The contention of the petitioners that seniority has to be fixed with reference to the date on which optiOn was exercised by them, has no basis. [1069DEl

3. Direct recruitmerit to the post or Assistants in the Society was made holding competitive examination in 1967 and 1971. Upper Division Clerks, like the petitioners who were-Working with the Agricultural Department, could very well have appeared for this competitive examination and goi themselves direct1Y.; recruited as Assitants on successfully pai:; sing the competitive examination.

Some of the petitioners in fact appeared for the competitive test without success.

Those who were successful at the competitive examination aod the interview' were offered the post of Assistant by regular appoi otment. [1069F .. l--l]

4. Relying on Anncxure.4-Memorandum dated 24.4.70 the petitioners'

attept to contend that their seniority should start from the date 1hey exercised

option and that this is correctly reflected in 1976 list. This submission overlooks the fact that even at that time, there were rules in existenc:e prescribing-a ratio of l: 1 between promotees and direct recruitS. In add"ition to this, it has to be noted_ that here also, filling up of vacancies on a regul'!, r basis is emphasised,

[1071 GH]

5. -The Union Government and the Society \Vefe originally in 'error in their assumption that no rules existed for regulating the service conditions in the Society, Annexure 6, are rules relating to thei Indian Council of Agricu\ .. tural Rese.arch before its reorganisation. The said rules show that the posts of

Asistants can be filled up sq% by direct recruit also. The handbook for peson-: 1

nel officer shows that the relative seniority of direct recruits arid promotCes shailj be deteimined according to the rotation of vacancies between direct .rec'tuits and promotees which shall be based on the quotas of vacancies reserved for direct recruitment and promotion respectively in the Recruitmenr Rules. New recruit meat rules came int~ effect from 1.9 1974. This method of recruitOOent was to be wit~ effect from 1.1.1976. It further prqvided that vacancies arising between 29.5.1973 and 3J.12.J97~ were to l>e filled wholly (100%) y promotion This

I,,

F l

SUPREME COURT REPORTS (1985]'.l S.C.R

,· . ;•f:.:' ,, means. that vacancies prior to. 29 .. 8.1973 and 31.12.1975 willbe filled up in acc:ord~ aOCe'' With'the:l964 ruleS'and vacancies betwe:!n 29.8.1973 and' 31.12 1975 Will be'fiUCd., by the promotees along 3:nd thereafter in the r:itio 1 : 1.: 'Fforri'tbese

~~I~ .it is evidnt-that the Society Was conscious of the cl<lims of the prom, Jtees

ad hee safegUards.tfieir interests by providing 100% pcists for them bCtWeeri 29.8.)973 .and 31.-ti.1975. By doing so, justice was done to them in a grea1 measure. (1072 C-E; G-H; 1073 A]

,., .

ORIGINAL JURISDICr10t-1: Writ Petition No. 1938 of 1981 (Under Article 32 of the Constitiution of India)

/;[. K. Ramamurthy and P. P. Singh for the Petitioners.

. M. C.· Bhandare, Raju Ramacha11dra11, R. K. Garg, V. /Francis/;-- and N.'M .. Popli for the Respeondcnts. ·

The Judgment of the Co11rt was delivered by

This writ petition involves the familiar rivalry between promotees and direct recruits. Normally a resolution of such a dfopute these' two well known groups of service employees would necessitate

con.sldreaiion of various decisions relating to the quota and rota rule and such other allied matters. We have been relieved of this exercise because we feel that the dispute in this case can be resolved 'onfacts,'nnaided by precedents on such matters. The counsel on boih sides advisedly, therefore, restrained themselves from citing the rekv, ant authorities before us.

 2! Now the facts: ! i., !~ i ·

All the 39 petitioners, are promotees to the post of Assistant in the1Indian Council of Agricultural Research (for short 'the socie- .1111 ti') the •!st respoadent herein. The second respondent i!i the Uniori'bf India and respondent Nos. 3 to 31 are direct recruits to the. sable post. Respondent Nos. 32 to 88 are also promotees and have been impleaded as proforma respondents. ·

"'' 3.''Tlie petitioner originally belonged to. t_he service of. the

Centrl' Secretariat, Government of India, Mm1stry of Agncul-. ture. ''The''society was a part of that department tilll. 4. 1965 on

wliicll !lie ihe Government of India decided to re-organise the

lillAGWAN DAS v, COUNCIL AGRICULTURAL RBSEARCH (Khalid, J.) loid

Society into a fully autonomous organisation with its own secretariat. The petitioners opted to join the service in the Society on such re-organisation. Respondent Nos. 3 to 31 were directly recruited after anopen competitive test, held bj the Society iii 1967 and 1971.. A seniority list was prepared by the Society 1 in 1976 showing the relative positions of the promotees and the direct reoruits. The provocation for filing the writ petition was the publishing , of a second seniority list, by the Society by its Memorandum No. 27 , (5)/81-Estt. II dated 7.4.1981. This list brought changes in the earlier list and pushed down the. promotees from the positions '

1 they occupied in that list. The prayer in the writ petition. \s to "' quash this seniority list on the ground that it violates Article 14

nd 16 of the Constitution of India and to stay its implementation.

4. The Petitioners' case is that they cank into the Sosiety by virtue of the option exercised by them and that they are entitled to seniority on the basis of the length of their service from the date of option. According to them, recruitment rules, laying dowff the terms of serivce in the Society, were not avilable then and as such seniority had to be fixed on length of service. The case. of the contesting respondents is that seniority has to be fixed not with reference to the date of the reorganisation of Society and the date 'of option exercised by the petitioners but from the date of their appointment on a regular basis. They seriously disputed the case of the petitioners that they were entitled to senjority from' the date they exercised their option. According to them the petitioners have to establish that they were duly appointed in the service on a regular basis, when they exercisd their option, to claim seniority on the strength of length of service from the date of their option.

5. We must confess that there was considrable confusion both on the side of the petitioners and on the side of the Sodeif

and the Government regarding the existence of rules, iegulatillg;· '

the conditions of service in the Society. Things proceeded iii the' ·· Society on the basis that there were no recruitment rules in exili~ a~ • tence till 1974, while the factual position is thai rules were in exis~ tence from 1964. It was on this wrong aasumption the that seniority list was prepared on .2nd February, 1979. In that list, senioriiy was reckoned with reference to length of service. It was after" realising that a mistake had been committed and that rules, in fact; ·

existed that the impugned list was drawn up on 7th April, 198L e~

SUPREME CURT REP.'.>RT~ [!9SSJ 3 s.C .. R.

6. T:1e potitioners have given a comparative statement as An • 1-·· ••. ' ·. - ,' '

J' - . • nexure-9, showing the m1naer .in which the new list bas worked fo theif db'ifimnt. This Annexure show.< the 'relative postioils orthe

proinoie€s ad the dirct recruits in the 1976 list and in , the 19&1 Iist.''To 'itb. two .or'three examples ; <lirecfrecruits V.:110 were plaed .

' ' ; f'" ' . ' :

I ' ' at sefia!Nos. 4, 20 & &3 in the 1976 list; have gone up as seria

Nos~ 2, '10 and 22o' respectively, in the 19&1 list. While preparing the 1976 11ist, a deemed date of appointment in the grade was aclopted to' calculate the length of service, The petitioners, case is . . r - -- '), . . . , . . . • that the direct recurits never questioned their placement in this lisfarid 'therefore cannot oppose with any justification the' petitio-

...

_. : - ' - , I ners' req'ues( for quashing the impugned list. Though this submission ' is' wholly not unfounded,. the petitioners cannot succeed merely'on/ the inaction on the part of the direct zecruits but have to satisfy the Court of a right in them to entitle them to seniority from the date they:opted and came into the Society's service. 11 is this aspect of the case.that needs examination by us in this writ petition .

DH . {_...

 ' 7.' In this case we do not have the u_sual picture o(great injustice 'glafing in the face, of promotees being eased out of their plices by direct recruits after a long lapse of time. Here w'e are

dealing with a small Society with a limited number of employees and the dispute relates to a short period from 1965 to 1973. 1rhe pe\itioners cannot, in this case, put forward either the 'case of a E

' . wholesal~ reduction of their places, legitimately due io them or

the'"i:ollapse of the quota and rota system as was the case in some of the decided cases. The short point here is as to when the petitioners were regular appointed in the grade of Assistants and as to ' wlfether the petitioners' rightful places have been robbed' by the

SoCiety :ind the direct recruits by the impugned senicirity list.

,,.,,8.,,,, The .petitioners .were originally Upper Division Clerks with ; the :Agricultural Department of Goverment of India. _They came to, Court with the definite plea that the.ir seniority., was, fixed on .the basis of the principles applicable to Government service in th~ absence of any rules framed by the Society, regulating' their service .conditions. It is stated in the petition that they

j . & • • . made representations to the authorities for laying down of dear principles to determine the inter-se seniority between them and the direct recruits and as a conseque.nce, the Government. oflndia

issed. a°ifomorandum dated 20th Apirl, 1970, asking the Government employees to give their option by 30th April, 1970 a!1d

llHAGWAN DAS 1>. COllNciL AGRiCllLTURAL RESBARGli (Khalid, J.) 1069

reiterating at the same time that the inter-se seniority of the ministerial staff under the reorganised Council would be fixed on the basis • of the date of appointment made on a regular basis. H is significant to. note that the petitioners. have not produced a single of their appointment orders for this Court to be satisfied as to when they were appointed as Assistants on a regular basis while a specimen appointment order of direct recruits has been produced. Still the petitioners insist that the crucial date for determining the inter-se seniority is 1-4-1965, the date on which the Society was reorganised. We find it difficult to accept the contention that the length of service has to be reckoned from 1.4.1965 or from the respective dates when they ---< entered the service of the Society on exercise of their option when ', the Memorandum, produced by them, has clearly stated that the

interse seniority will be fixed on the basis of tlie date of appointment in the grade on the regular basis. We have looked into the Memorandum Annexure-4, dated 20th April, 1970. It clearly states that the date for exercise of option has been extended to 30th April' 19,70 and that the principles determining the inter-se seniority of the ministerial staff in the reorganised Council was considered by the Society in consultation with the Ministries of Law and Home Affairs and Finance and that it was decided that the seniority of the ministerial staff in the reorganised Council would be fixed on the basis of "date of appointment to the grade on a regular basis." This statement in the Memorandum which finds a place in paragraph 8 of the Writ Petition also shows, according to us, the hollowness of the contention of the petitioners that seniority has to be fixed wit_h reference to the date on which option was exercised by them.

, •

' Direct recruitment to the post of Assistants in the Society was made by holding competitive examination in 1967 and 1971.

Upper Division Clerks, like the petitioners who were working with the Agricultural Dept., Govt. of India, could very well have appeared for this competitive examination and got themselves directly recruited as Assistants on successfully passing the competitive examination.

We are told that some of the petitioners in fact, 'appeared for the competitive test without success. Though this statement made by the counsel for the respondents at the bar was not disputed by the petitioners' counsel, we do not propose to rely on it since it is not a matter on record. Those who were successful at tbe competitive examination and the interview were offered the posts of Assistant . by regular appointment as per appointme.nt order produced as

1070 SUPREME COURt REPORTS (1985] 3 s.c.ll.

Annexure-5, issued by the Society, containing the terms of appointment. As already indicated, the petitioners .have either by design or by oversight failed to make available to us their orders of appointment on a regular basis in the grade when they exercised option, It is against this background that the challenge to the 1981 list has to be considered.

10. .If the petitioners can satisfy us that they had greater. length of service in equivalent grade than the direct recruits, tbiey are entitled to succeed. If they fail, the list has to stand despite the fact that the earlier list was not challenged by the direct recruits.

We do not have on record anything to show when the petition.:rs .Y . were regularly appointed in the grade of Assistants. In the absence /

of this evidence, can the petitioners succeed ? As already stated the Society and the Union Government were originally under a misapprehension that no rules existed governing the service conditions in the Society. The petitioners have produced a Memorandum Annexure .. 31 dated 21st August, 1967 which throws considerable light on the dispute involved in the case. It is stated therein that the Governm(:nt of India have approved of the reorganisation of the Indian Council of Argicultural Research into an Office wholly controlled and financed by the Indian. Council of Agricultural Research, with effect from a date to be appointed shortly. As a consequence of the above decision t:he various posts existing as Government posts in the said Secretariat, will be abolished with effect from the aforesaid date. and corresponding number of posts in various cadres will be created as nongovemment posts under the Society.

1 I. Paragraph 2 of this Memorandum reads :

"The Indian €ouncil of Agricultural Research has, however, agreed to take over such officers as belong to the

C.S.S. (holding posts of SectionOfficer's grade and Grade IV only), C.S.S.S. and C.S.C.S., employed on date in the

Deprtment of Agriculture and its attached offices (including the Indian Council of Agricultural Research) as are willing to serve the Council. The Indian Council of Agricultural Research will, of course, select from amongst the persons opting for its service only the number of persons . required by them, keeping in view the total. number of existing posts in the various cadres borne on the Govern-

~HRGWAN fiAS v. COtlNdiL AFOICtlLnlRAt RESEMl.CH (Kha/id, J.) 1011

ment side of the Indian Council of Agricultural Research."

Clause VI of Para 2 reads as follows :

"The iriter-se seniority of the staff in Indian Council of Agricultural Research shall be determined in accordance with the rules. to be framed for the purpose taking into account, among others, the principles governing the seniority under the Central Government."

From the passages extracted above, it becomes clear that -J appointments are to be regularly made to various grades only with

t •

"-, effect from a date to be appointed after 21st Angllst, l967, the date ' of the Memorandum,. which means that the deemed date of appofotment mentioned in the 1976 list cannot b.e relied upon by tire petitioners to project a case of their lenght of service from that date.

The petitioners placed strong reliance on the Memorartdum1 Annexure-4 dated 20th April, 1970, and in particular to the following :

''It has also been decided that !st April, 1965 shall constitute the crucial date for determining the inter-se seniority of the staff finally merging into the reorganised Council. Accordingly, a combined inter-se seniority list will be prepared for each grade of the persons on the basis of the above principle in accordance with the position obtaining in respect of each individual as on !st: April, 1965 and all regular vacancies arising in the Council with effect from !st April, 1965 upto date, meant to be filled by promotion (including those which have been filled up on ad hoc basis) will be filled up on a regular basis from the inteMe seniority list drawP, up in the manner indicated above."

12. Relying on this, the petitioners attempt to contend that their seniority should start from the date they exercised option and that this is correctly refiected in 1976 list. This submission overlooks

he fact tht even at that time, there were rules in existence prescribmg a ratio of I : I between promotees and direct recruits. fa additio.n to this, it has to be noted that here also, filling up of vacancies on a regular basis is emphasised.

1072 SUPREME cOURT RilPOR ts {19SSJ ~. s.c.a.

13. The Petitioners cannot therefore seek support from this to press a ca'se of seniority from the date of exercise their options or from the deemed date of appointment.

.Rights .can accrue to them as members of the new service only from the .date they are regularly appointed in 'the grade. The impugned list instead of continuing the mistake committed in the 1976 .list, ha~'only corrected the mistake.

14. We find from the records that the Union Government and the Society were originally in error in their assumption that no rules existed.for regulating the service conditions in.the Society.• We have at page .91 as Annexure'6, rules relating to the Indian Council

ot'.Agricultural Research before its reorganisation. The said rules show that the posts of Assistants can be fill d up 50% by direct recruitment . and 50% by promotions. Jn other words, for every pr, omotee there should be a direct recruit also. As is seen. in the Handbo.ok for personnel officer, the relative seniority of direct recruits and promotees shall be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on the quotas of vacancies reserv.ed for direct recruitmenJ and promotion respectively.in the Recruitment Rules.

 15. New recruitment rules for verious posts in the Society including Assistants with whicli we are concerned, came into force with effect from 1.9.1974. Under these rules, in the number of posts available for Assistants 50% was .to be by way of promotion from amongst the U.D.Cs. having . rendered at least 5 years approved service in the grade on the basis of seniority, cum-fitness subject to rejection of the uiifit on the recommendations of the D.P.C.'and '50% by direct recruitment on the basis 'of the results of competitive examination held by the ICAR.

16. This method of recruitment was. to be with effect from 1.L1976> The method of recruitment before this date is also indicated iri these rules. His provided 'in these rules that vacancies, arising between 29.SJ973 and 31.12.1975, will be filled wholly (IOO%)by promotion. This means that vacancies prior to 2.9.19_73 will befil!ed up in accordance with tlre 1964 rules and vacancies between 29.!b973 and 3!.12.1975, will be filled by the promotees alone and thereafter in the ratio 1 :I. From these ru'.es it is evident

l ....

llllACW~N DAS v. dONdlL AGRBdULTURAL RESB.\RdH (Kha/iJ, J.) 1013

that the Society was conscious of the claims of the promotees and hence safeguarded their interests by providing 10J% posts for them between 29.8.1973 and 3l.12.1975. By doing so, justice waq done to them in a great measure. T.he petitioners have no grievance that in preparing the 1981 list, which is .impugned in this writ petition, a departure has bem made to their detriment, .without adheringto the quota provided in the rules. Their only grievance is that the earlier li>t was changed without taking into account the deemed dates of appointment. We have already indicated that in the absence of satisfactory proof of the date of appointment of the petitioners in the grade as assistants in the Society, the petitio- 1 ners cannot successfully urge before us a violation of Article 14 and . 16 of the Constitution of Inclia. A look at the list prepared in accords " ance with the above rules, fortifies our conclusion that no great injustice was done to the promotees in the preparation of the list. As one goes through the list, one finds that the Kap between the promotcei <J(ihe direct recruits _is of a very sort duratin and not wide :fas . m other cases. It 1s true that direct recruitment was made first only in 1967. However, to work out the quota system an. earlier date of appointment bad to be given to the direct recruits.

This could not be avoided. This according to us, has not done any great injustice to pursuade us to give relief to the petitioners. The dislocation was limited only to a period between 1965 to 1967 and 1967 to 1971 aod not to a fairly long period of time.

In our Judgment, therefore, the petitioners are not entitled to succeed. The writ petition fails and is dismissed. The parties are directed to bear their costs,

N.V.K.

Petition dismissed. ·