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TMI Blog2012 (12) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... ployer and it is required to act fairly giving due regard and respect to the rules framed by it. But in the present case, the State has atrophied the rules. Hence, the need for hammering the concept. Secretary, State Of Karnataka And vs. Umadevi And Others [2006 (4) TMI 456 - SUPREME COURT], the Constitution Bench, while discussing the role of state in recruitment procedure, stated that if rules have been made under Article 309 of the Constitution, then the Government can make appointments only in accordance with the rules, for the State is meant to be a model employer. further, In Mehar Chand Polytechnic & Anr. vs. Anu Lamba & Ors.[2006 (8) TMI 514 - SUPREME COURT], Court observed that public employment is a facet of right to equality envisaged under Article 16 of the Constitution of India and that the recruitment rules are framed with a view to give equal opportunity to all the citizens of India entitled for being considered for recruitment in the vacant posts. Thus, role of the State as a model employer with the fond hope that in future a deliberate disregard is not taken recourse to and deviancy of such magnitude is not adopted to frustrate the claims of the employees. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st of the private respondents therein on the foundation that they had been promoted in violation of the provisions of the Assam Police Service Rules, 1966 (for brevity the 1966 Rules ). 3. Shorn of unnecessary details, the facts which are requisite to be stated are that the Assam Public Service Commission (for short the Commission ) issued an advertisement No. 9/92 dated 23.6.1992 inviting applications for preliminary examination for the Combined Competitive Examination, 1992-93 for selecting candidates for various posts and services including thirty vacancies in the Assam Police Service (Junior Grade) (for short the APS ) as requisitioned by the Commissioner-cum- Secretary to the Government of Assam in the Department of Personnel on 5.9.1992. On 29.8.1992, the Commission published another advertisement No. 12/92 inviting applications for filling up of 20 posts in the APS under Rule 5(1)(c) of the 1966 Rules. There is no dispute that the initial 30 vacancies were put in the compartment of regular batch or direct recruitment and the other 20 vacancies, which were sought to be filled up by way of special drive, were kept in the category of special batch or promotional rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e direct recruits invoked the jurisdiction of the tribunal for the apposite determination of seniority claiming to be senior to the respondent Nos. 6 to 24. 5. The claim of the appellants before the tribunal was resisted by the respondent-State and the private respondents therein on many a ground including the one that the appeal was barred by limitation. It is worthy to note that in an affidavit, the Secretary to the Commission asseverated that the Government had not consulted the Commission before publishing the provisional gradation list; that when the selection process for the regular batch was already underway, there was no justification whatsoever to go for special recruitment; that the recourse taken to fill up the posts by way of special recruitment was in gross violation of the rules and procedure inasmuch as all vacancies could have been filled up by resorting to the usual and regular procedure of recruitment; that the Competent Authority of the State Government should have acted on the list sent by the Commission relating to the regular candidates in quite promptitude but delayed it for no apparent reason and called for the recommendation for the special batch and issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s required to call for recommendations from the recommending authorities for the purpose of recruitment to the service under clause (c) of sub-rule (1) of Rule 5 and the recommending authorities are also required to submit recommendations in respect of the persons having regard to the laid down criteria but in the instant case, the said procedure was given a total go by which is not permissible. The tribunal further noticed that Rule 8(2), which is mandatory, provides that all the recommendations are required to be submitted before the selection committee constituted under Rule 7(1) and the selection committee is required to interview the recommended candidates and prepare the select list and, therefore, the Commission, in no circumstance, could have been entrusted with the responsibility of interviewing, testing, selecting and recommending any candidate for special recruitment under clause (c) of sub-rule (1) of Rule 5. In this backdrop, the tribunal observed that, admittedly, all the processes undertaken by the Commission and the third respondent were in gross violation of the mandatory provisions of the Rules and hence, the selection was not valid. 8. After so stating, the tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iii) is concerned, the learned single Judge framed five ancillary questions. 11. While dealing with the facet of limitation, the learned single Judge referred to the relevant provisions of the Act and expressed the view that the appellants before the tribunal having the remedy which was available to them in terms of the directions contained in the circular dated 1.4.1999 were entitled to prefer the appeal in terms of the proviso to sub-section (2) of Section 4 of the AAT Act, 1977 and hence, the appeal was not barred by limitation. 12. Adverting to the facet of appointment, the learned single Judge scanned the anatomy of the 1966 Rules and came to hold that the number of persons who got selected as members of the special batch were not eligible for consideration for appointment in terms of Rule 5(1)(c) and further the procedure engrafted under the said sub-rule was not followed and, in fact, was mutilated and flouted in every conceivable manner leading, eventually, to the appointment of the members of the special batch. Dwelling upon the issue that the appointments were arbitrary, malafide and discriminatory vis-a-vis the appointment of the direct batch, the learned single Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the relevant rules of recruitment were relaxed in respect of the special batch at the time of making their recruitment and what was the permissible limit of relaxation and whether there can be deemed relaxation. Delving into the said aspects, the learned single Judge ruled that while appointing the special batch, the rules of recruitment were completely shelved, no order of relaxation was passed under Rule 23 relaxing the provisions contained in Rule 5(1)(c) of the 1966 Rules; and that there could not have been any deemed relaxation. The learned single Judge referred to various pronouncements of this Court with regard to relaxation and deemed relaxation and expressed the view that the Special Batch was recruited, ostensibly, on the ground that the department was in need of young officers in the grade of Deputy Superintendent of Police, but the officers recruited were as old as 50 years, and, thus, the very purpose for which the proposal was mooted stood defeated. The writ court discussed the ratio laid down in Bachan Singh v. Union of India (1972) 3 SCC 489, Narender Chadha v. Union of India (1986) 6 SCC 157 and J.C. Yadav v. State of Haryana (1990) 2 SCC 189 and held that contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Rule 5(1)(a) of the 1966 Rules. The Division Bench noted the facts, adverted to the orders passed by the tribunal and the learned single Judge, dealt at length with the submissions canvassed by the learned counsel for the parties and came to hold that the tribunal had jurisdiction to deal with the appeals and thereafter, dealing with the stand that the appointments having not been challenged the delineation thereof by the tribunal and the learned single Judge was barred by the doctrine of res judicata, repelled them on the base that the memorandum of appeal before the tribunal had graphically challenged the appointments to be non est being in violation of the rules though that there was no prayer for cancellation of the appointments. The Division Bench analysed the scheme of the rules and stated that Rule 5(1)(c) envisages a selection in special cases from amongst the limited categories of persons referred to and the number of vacancies to be filled up by that procedure has also been restricted. The Division Bench referred to Rule 8 and regarded it as unequivocal on the conditions of eligibility, commencement of the process contemplated and the culmination thereof, and observe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not find any reason justifying supersession of a senior by a junior. The Division Bench noticed that as the inter se seniority of promotees was a replication of that in the provisional gradation list which has been unsettled, the challenge to the notification dated 6.12.2004 was unsustainable. Being of this view, the Division Bench dismissed all the appeals. 20. We have heard Mr. Prashant Bhushan, learned counsel representing the special batch recruits, and Mr. V. Shekhar, learned senior counsel appearing for the direct recruits in all the appeals. 21. The fundamental questions that emanate for consideration before this Court are, namely, whether the appointments have been made in violation of the rules; whether the selection of the special batch recruits if accepted to be in violation of the rules, can be treated to be de hors the rules; and whether the concept of relaxation has been extended to them or is extendable to them and further whether they can avail the benefit under the second proviso to Rule 18 of the Rules and whether the tribunal as well as the High Court is justified in refixing the seniority without quashing the appointment of the special batch recruits. 22. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different dates between 1975 to 1977. As the factual narration would show, a proposal was sent by the State Government to the Commission requesting it to reconsider the result of the examinations of 1967, 1968, 1969 and 1970 for appointment to the service of persons/candidates who might have obtained 40% of marks or more in the aggregate even if they had failed to secure the minimum marks in the viva voce test. The Commission declined to accede to the said request. A meeting was held by the High Level Committee and, eventually, a third list of 37 candidates was sent by the Commission for the aforementioned years in which list the name of Rafiquddin featured. As out of 37 candidates, 16 had already appeared in the 1972 examination and had been selected, the Government requested the Commission to select 16 more candidates from the 1972 examination. In pursuance of the Government s request, the Commission forwarded the list of 16 candidates for appointment. In this factual matrix, in March, 1977, the State Government published a seniority list of successful candidates of the competitive examination of 1970. The candidates belonging to the third list made a representation to the High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Direct Recruit Class-II Engineering Officers Association and others v. State of Maharashtra and others AIR 1990 SC 1607, the Constitution Bench was dealing with the issue of seniority between direct recruits and the promotees under the Maharashtra Service of Engineers (Regulation of Seniority and Preparation and Revision of Seniority Lists for Specified Period) Rules, 1982. The Constitution Bench referred to the decision in A.K. Subraman v. Union of India AIR 1975 SC 483 and ruled that if a rule fixing the ratio for recruitment from different sources is framed, it is meant to be respected and not violated at the whims of the authority. It ought to be strictly followed and not arbitrarily ignored. A deviation may be permissible to meet the exigencies. The Constitution Bench posed the question as to what would be the consideration if the quota rule is not followed at all continuously for a number of years and it becomes impossible to adhere to the same. The Constitution Bench opined that if the rule fixes the quota and it becomes impracticable to act upon, it is of no use insisting that the authorities must continue to give effect to it. But the Government, before departing from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ector, Food and Supplies in the State of Punjab governed by the Punjab Food and Supplies Department (State Service Class II) Rules, 1966. After analyzing the facts and the appointments in excess of quota, the Court observed that the appointment of the controller was in excess of the quota and it continued to be so till the respondent No. 2 therein was appointed by direct recruitment. In that context, the Bench opined: - Once it is held that the appointment of the appellant was in excess of the quota fixed for promotees and officers appointed by transfer, the said appointment has to be treated as an invalid appointment and it can be treated as a regular appointment only when a vacancy is available against the promotion quota against which the said appointment can be regularized. In other words, any such appointment in excess of the quota has to be pushed down to a later year when it can be regularized as per the quota and such an appointment prior to regularization cannot confer any right as against a person who is directly appointed within the quota prescribed for direct recruits. 29. In Maharashtra Vikrikar Karamchari Sangathan v. State of Maharashtra and another (2000) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contesting respondent could not claim seniority over the appellant. 31. We have referred to the aforesaid pronouncements to restate the legal principle that if the quota rule has been broken down, the appointee should not be pushed down below the appointees from other source; but, the Government before departing from the rule must make every effort to respect it and then only it may proceed to appoint from other source. 32. At this juncture, it is necessary to state that the decision in The Direct Recruit Class II Engineering Officers Association (supra) was clarified by a three-Judge Bench in State of W.B. and others v. Aghore Nath Dey and others (1993) 3 SCC 371 as the later Bench perceived an apparent contradiction in conclusions (A) and (B). While clarifying, the Bench has stated thus: - 19. The constitution bench in Maharashtra Engineers case (supra), while dealing with Narender Chadha (supra) emphasised the unusual fact that the promotees in question had worked continuously for long periods of nearly fifteen to twenty years on the posts without being reverted, and then proceeded to state the principle thus: (SCC p. 726, para 13) We, therefore, confirm the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were neither appointed by the competent authority on the recommendations made by the Board which was constituted by the Governor of Haryana nor were they placed on probation as required under the rules and, therefore, their ad hoc period could not be counted for the purpose of fixation of seniority. Thus, emphasis was laid that when appointment is made without following the procedure prescribed under the rules, the appointees are not entitled to have the seniority fixed on the basis of the total length of service. In essence, it has been ruled that when the appointment is made de hors the rules, the appointee cannot claim seniority even if his appointment is later on regularized. 34. Regard being had to the aforesaid enunciation of law pertaining to fixation of seniority when the initial appointment is made in breach of rules and further departure from provision pertaining to quota in their essential nature, it is apposite to refer to the relevant rules of the 1966 Rules. Rule 4 defines the Cadre . Rule 4(1)(a) deals with the categories of posts in the junior grade and Rule 4(1)(b) deals with the senior grade posts. Rule 5 provides for the recruitment and procedure of selection, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecommending authorities to submit recommendations in respect of persons who- a) are of outstanding merit and ability; b) have to their credit not less than 2 years of experience in duties comparable in status and responsibility to that of Deputy Superintendent of Police or 8 years of experience in duties comparable in status and responsibility to that of Inspectors of Police; c) possess the academic qualification prescribed under R.10; d) are not above the age of 35 years on the 1st day of the year in which the recommendations are called for; and e) are otherwise eligible, in the opinion of recommending authorities to be appointed to the service. (2) On receipt of the recommendations, the Governor shall refer them and also simultaneously send the character rolls/ testimonials of character and service records/other relevant records of the persons recommended to the committee which will, after examination of the records forwarded to it and interviewing, such of the persons recommended as it considers necessary, draw up a list of persons in order of the preference who are considered suitable for appointment to the service. The procedure details in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved by the Commission, shall be forwarded to the Governor along with all the papers received under sub-Rr. (5) and (6). 38. It needs to be noted that under Rule 8(2), the Governor is required to send the character rolls/testimonials of the character and service records/other relevant records of the persons recommended to the Committee which would, after examination of the records forwarded to it and interviewing such of the persons recommended as it considers necessary, draw up a list of persons in order of the preference who are considered suitable for appointment to the service. Committee has been defined in Rule 2(c) and it reads as follows: - (c) Committee means a committee constituted in accordance with sub-R. (1) of R. 7. The aforesaid definition makes sub-rule (1) of Rule 7 important. The said sub-rule reads as follows: - 7. Recruitment by promotion. (1) There shall be a Selection Committee consisting of the following, namely : (a) Chairman, Assam Public Service Commission, or, where the Chairman is unable to attend, a Member, Assam Public Service Commission nominated by him; (b) Chief Secretary to the Government; (c) Inspector-G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not clothe an appointment with a legal status. Similar view was also expressed in Swapan Kumar Pal and others v. Samitabhar Chakraborty and others (2001) 5 SCC 581. 41. In State of Haryana v. Haryana Veterninary and AHTS Association and another (2000) 8 SCC 4, a three-Judge Bench, after x-ray of the relevant rules, came to hold that when appointments are made in violation of the recruitment rules, the said appointments cannot be treated to be regular. 42. The aforesaid authorities clearly lay down the principle that when there is violation of the recruitment rules, the recruitment is unsustainable. Whether any active part is played by a selectee or not has nothing to do with the appointment made in contravention of the rules. In the case at hand, the special batch recruits have encroached into the quota of the direct recruits. The whole selection process is in violation of the rules and, therefore, we are inclined to concur with the opinion expressed by the learned single Judge that the selection was made de hors the rules. The Division Bench was not justified in stating that the selection could not be said to be de hors the rules. However, we accept the conclusion of the tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y vis-a-vis such of his juniors as may be confirmed earlier than he. His original position shall, however, be restored on his confirmation subsequently but any benefits of promotion, etc., shall not accrue to him with retrospective effect on such confirmation. (6) Inter se seniority of persons promoted to the senior grade of the service shall be in the order in which their names appear in the list from which the promotion is made. 44. The two facets which emerge from the scanning of the aforesaid Rule are that the seniority of a member of the service is to be determined on the basis of the date of appointment to the service and the seniority has to follow a particular order as has been stipulated therein. The other significant aspect is that power has been conferred on the Governor to consider the previous service of an incumbent and fix a deemed date of appointment for the purpose of seniority by adopting a specific method. As far as the first part is concerned, the tribunal as well as the High Court has not accepted the stipulation that in the present case the seniority should be determined on the basis of the date of appointment as the same has been made in flagrant vio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re has to be apposite foundation for exercise of such power. It is to be borne in mind that if a particular rule empowers the authority to throw all the rules overboard in all possibility, it may not withstand close scrutiny of Article 14 of the Constitution. Be that it may, no decision was taken to relax the rules and, the concept of deemed relaxation is not attracted and, therefore, the relief claimed by the special batch recruits has no legs to stand upon. 47. From the aforesaid analysis, there can be no scintilla of doubt that the selection of the special batch recruits was totally de hors the Rules; that there was a maladroit effort to go for a special drive when there was no need for the same by the State which is supposed to be a model employer; that neither the concept of relaxation nor the conception of benefit of Rule 18 would be attracted for grant on conferring any privilege to the special batch recruits; that their seniority has to be pushed down and, hence, the directions given by the tribunal and the High Court in that regard are absolutely flawless; and that regard being had to the delayed challenge and long rendering of service in the posts and further promotions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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