UNION OF INDIA AND ORS. ETC.

A v.

S.D. GUPTA AND ORS.

FEBRUARY 12, 1996

[K. RAMAMSWAMY AND G.B. PATTANAIK, JJ.] B

Service Law :

Central Water Commission Engineering Class-I Service Rules, 1965 :

Rules 5,6,8-Inter se seniority between promotees and direct recruits- C Since Rules are silent, sub-rule (2) of Rule 8 clearly mentions that the dete1mination of seni01ity in accordance with the rules of the Govemment of India, Ministry of Home '1ffairs, personnel & Administrative Refonns Depmtment would be applicable 1957 instructions prescribed quota and rota procedur~These would supplement the Rules-Though direct recruits were D recruited later, their fitment in the order of seniority would be detennined with reference to the rota and quota prescribed in the instructions and the statutory rules-Though some of the direct recruits were not even born in the service when th_e promotees were promoted these are inevitable consequences so long as the system continues-Question of equity does not aris~Though direct recruits appointed temporarily, on completion of probation they become E substantive appointees-This is the settled principle of law.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3767 of 1996 Etc.

From the Judgment and Order dated 20.4.95 of the Central Administrative Tribunal, New Delhi in O.A. No. 1050 of 1994.

V.V. Vaze, Ms. Binu Tamta and Ms. Sushma Suri for the Appellants in C.A. No. 3767/96.

C. Sitaramaniaha, P. Narasimahan for Appellant in C.A. No. 3768/96. G

M.N. Krishnamani, S. Menon for the Respondents.

U.P. Misra Intervenor in Person.

The following Order of the Court was delivered : 471 H

A Delay condoned. Impleadment is allowed.

Leave granted.

We have heard the counsel on both sides. The admitted facts are that the respondents are promotee-Extra Assistant Directors (Class III) in B Central Water Commission Engineering Class-I Service. Rules were made w.e.f. October 15, 1965. The Tribunal in the earlier litigation had found that V.P. Misra, Extra Asstt. Director was promoted on ad hoc basis on March 31, 1978 and he was required to be confirmed w.e.f. the date on which vacancy was available to him in the quota of promotees. It is not in C dispute the vacancy had arisen in the quota of promotees on May 3, 1979 and he was fitted into that vacancy. While doing so, the appellants had applied the principle of rota and quota and determined inter-se-seniority of the promotees and the direct recruits. Consequently, the promotees were pushed down in the order of their seniority. That led to the second round of litigation. In the impugned order dated April 20, 1995 made in D O.A. No. 1050/94, the CAT at Delhi had directed the appelJants to determine the seniority in the light of the directions issued by this Court in Civil Appeal arising out of SLP (C) No. 14389/88 on April 23, 1991 and the relevant rules applicable to the candidates. Since it created confusion in the implementation of the order, the appelJants have come before us by E special leave. The Tribunal in paragraph 5 has stated thus :

"We find substance in the submission of the learned counsel for the applicants that the intention of the judgment of the Supreme Court was to ignore the ad hoc period prior to the occurrence of vacancy. The continuous officiation period was, therefore, to count only from the date of vacancy in the p.romotees quota arose. This principle has not been observed while preparing the impugned seniority list, which, therefore, has to be quashed."

In ultimate paragraph 7, this was held thus :

"In view of the above, the Original Application is allowed and the impugned seniority list dated 19.1.1994 is hereby quashed. The administration shall redraw the seniority list taking into account the observations made."

H The question, therefore, is what will be the principle applicable to

the respondent and the direct recruits, in appeal arising out of SLP (C) A No. 2293/96. It is not in dispute that as on May 3, 1979 the Rules applicable to the candidates were as under :

"5. PROMOTEES

(i) The relative seniority of persons promoted to the various B grades shall be determined in the order of their selection for such promotion:

Provided that where persons promoted initially on temporary basis are confirmed subsequently in an order different from the order of merit indicated at the time of their promotion seniority shall follow the order of confirmation and not the original order of the merit.

(ii) where promotions to a grade are made from more than one grade, the eligible persons shall be arranged in a separate lists in D the order of their relative seniority in their respective grades.

Thereafter, the Departmental Promotion Committee shall select persons for promotion from each list upto the prescribed quota and arrange all the candidates selecteu from different lists in a consolidated order of merit which Win determine the seniority of the persons on promotion to the higher grade.

Note: If Separate quotas for promotion have not already been prescribed in the relevant recruitment rules, the Ministries/Departments may do so now, in consultation with the Commission wherever necessary.

RELATIVE SENIORITY OF DIRECT RECRUITS AND

PROMO TEES

The relative seniority of direct recruits and of promotees shall

be determined according to the rotation of vacancies between G direct recruits and promotees which shall be based on the quotation vacancies reserved for direct recruitment and promotion respectively in the Recruitment Rules."

A reading thereof would clearly indicate that the seniority of the persons promoted to the various grades shall be determined in the order of the H

A selection .for such promotion and the relative seniority of the direct recruits and the promotees shall be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on the quota of various vacancies reserved for direct recruits and promotees respectively in the recruitment rules. The rules were made in 1959 which

would indicate the fixation of the quota rota as available. They read thus :

"These Rules provided for filling up of 60% of posts in the grade of Assistant Directors by direct recruitment, 25% of posts by promotion and 15% of posts by deputation. The seniority of Assistant Directors was being fixed as rota-quota system as per provisions of erstwhile Department of Personnel & Administrative Reforms O.M. No. 19/11/55 - RPS dated 22.12.1959. While fixing the seniority of Assistant Directors, the deputationsists were not coming to the picture and the vacancies were rotated between the direct recruits and the promotees in the following manner :

Point 1 Promotee

Point 2, 3, 4 Direct Recruits

Point 5 Promo tee

Point 6 & 7 Direct Recruits

Point 8 Promotee

Point 9, 10, 11 Direct Recruits

Point 12 Promotee

Point 13 & 14 Direct Recruits

Point 15 Promotee

Point 16, 17 Direct Recruits and so on"

It is contended by Shri Krishnamani, learned counsel for the respon- • dent-promotees that 1982 statutory rules have been made regulating the

ervice conditions of the candidates holding the post under the service at the initial constitution of the service and the existing candidates become H members of the service. Rule 8 thereof prescribes the inter se seniority of

the candidates. Those who are substantively appointed to the posts would A be juniors to those continuing at the initial constitution of the Service. So direct recruits are not seniors to the promotees. Consequentially, the direct recruits must be considered to be juniors to the promotees since the direct recruits were admittedly recruited from 1982 onwards after the statutory rules came into force. It is contended by Shri Sitaramiah, learned senior counsel for direct recruits and for Union of India that the contention is not correct. So long as the rota and quota is available, the interpretation should

be such that both rota and quota should be allowed to operate in their respective field; if so operated, the direct recruits, though recruited later, are entitled to be fitted into the vacancy to which they were recruited.

Consequentially, they may become seniors in the seniority list though they C were appointed later to the promotees who are to be fitted in the very respective quota as and when vacancy arises within the quota. Thus construed, it must be held that the direct.recruits would gain seniority over the promotees.

In view of the respective contentions the question arises whether the fitment of seniority determined by the appellant-Union is in accordance with the rules? It is seen that the fitment of rota and quota is not specifically provided in 1982 statutory Rules. But it prescribes admittedly 60% of

the substantive vacancies for the directed recruits and 40% for the promotees. Among the 40% .quota, , they further made a demarcation in E the ratio of 25:15 between the Extra Assistant Directors and the appointees by transfer. We are not concerned with each class in this case. Admittedly, the promotees are entitled to their fitment within 25% of the quota prescribed for them under the rules. Since rules are silent, sub-rule (2) of Rule 8 clearly mentions that the determination of seniority in accordance F with the rules of the Government of India, Ministry of Home Affairs, Personnel and Administrative Reforms Department will be applicable to the members of the service. It is seen that under 1957 instructions, the quota and rota procedure has been prescribed as extracted hereinbefore.

It other words, since the statutory rules are silent as regards the fitment of the rota and quota and determination Qf the inter-se-seniority, the ad- G ministrative instructions issued by the Government, would supplement the rules and accordingly they must be worked out.

It is seen that admittedly the vacancies for the promotees had arisen on May 3, 1979 and thereafter V.P. Misra is entitled to the vacancy that H

A arose on that date. Therefore, when the inter-se-seniority is determined between the promotees to the substantive vacancies that have arisen on May 3, 1979 and thereafter, though the direct recruits were recruited later, their fitment in the order of seniority should be determined with reference to rota and quota prescribed under the aforesaid administrative instruc-

B tions and the statutory rules. It would appear that the Government of India had worked out the rota and quota in tune with the above rules.

It is then contended that the direct recruits were not born in the service when the promotees were promoted and equity requires that they / cannot be pushed down. The object of direct recruitment is to blend talent C and experience to argument efficiency when direct recruits, though came from green pastures imbued with dedication and honesty. So long as system continues, consequences are inevitable. The question of equity does not arise. Shri Krishnamani then contended that direct recruits are shown temporary and so they cannot be similar to promotee substantive appoin- n

tees. The quota of 60% of direct recruits is to substantive vacancies, though their initial appointment is temporary; on completion of period of probation they become substantive appointees. That is the settled principle of law in this behalf. The Tribunal, therefore, is not right in giving direction to consider their fitment vis-a-vis the order passed by this Court in their quota above the direct recruits.

The appeals are accordingly allowed but, m the circumstances, without costs.

G.N.· Appeals allowed.