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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 ..... for short "the tribunal") in Appeal Case No. 79ATA of 1999, and dismissed WP(C) Nos. 4028 of 2003, 4129 of 2003 and 1031 of 2003 which were preferred directly for issuance of mandamus commanding the respondent authorities to consider the previous services rendered by the petitioners therein prior to their appointments in the Assam Police Service (Junior Grade) in the year 1993 and to determine their inter se seniority in the promotional cadre accordingly and further disposed of WP(C) 69 of 2003 preferred by an Additional Superintendent of Police, Guwahati for quashing of the appointment to the promotional post 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 Po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h were shown as senior to the recruits of the regular batch. As warranted, the recruits belonging to the regular batch filed their objections to the fixation of seniority on 24.9.1999, but without publishing the final gradation list, the respondent No. 3, namely, the Secretary in the Department of Home, promoted 14 officers belonging to the special batch and 16 officers belonging to the regular batch to the Senior Scale of APS (Grade-II). In the promotional order, the officers belonging to the regular batch were shown below the officers belonging to the special batch. Because of the aforesaid situation, the 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all time such recruitment must be limited only to 5 per cent of the total number of posts in the cadre and such special recruitment must be limited only to one post in a particular year. It further stated that the 1966 Rules are quite silent as regards carry forward of such posts and, therefore, there could not have been accumulation of vacancies to be filled up by resorting to the provision contained in clause (c) of sub-rule (1) of Rule 5 and as such, the question of selecting and appointing as many as 20 persons in a year did not arise. The tribunal further held that as per Rule 8(1), the Governor is 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Police by taking resort to Rule 5(1)(c) of the 1966 Rules and basically posed three questions, namely, (i) whether the appeal preferred before the tribunal was barred by limitation; (ii) whether the members of the regular batch could be treated as senior when their appointments were violative of the recruitment process as envisaged under the relevant recruitment rules; and (iii) whether the tribunal was justified in directing rectification in the gradation list when there was no appeal seeking removal of the special batch recruits being in violation of the rules. Be it noted, as far as question No. (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 lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to the wind the very purpose for which special recruitment was sought to be made, the age was relaxed to 45 years and persons, who were born in 1942, came to be selected in the year 1992, and thereby many of the officers recruited under the special drive were as old as 50 years, whereas proposal for the special drive was made on the pretext of recruiting young officers. He also opined that the whole process of selection of the special batch recruited was malafide and arbitrary. 13. After so stating, the learned single Judge dealt with issues whether the appointments were ab-initio void, whether 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 pronounce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smissed the writ petitions challenging the order of the tribunal. It is apt to note that in WP(C) 69 of 2003 wherein the petitioner had directly approached the High Court for quashment of the appointments of the special batch recruits, the learned single Judge observed that the appointments of the special batch deserved to be set aside and quashed, but he refrained from doing so considering the period of service which they had rendered. 16. Being dissatisfied with the aforesaid order, the special recruits preferred WA Nos. 448 of 2004 and 465 of 2004. WA 459 of 2004 was filed by the recruits under 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 graphi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compliance of the judgment and order passed by the learned single Judge, a notification No. HMA.154/2004/Pt.1/176 was issued on 6.12.2004 wherein the direct recruits of the 1993 batch were placed above the special recruits of the same year in the APS Senior Grade-II. The Bench also perused file No. H.M.A. 10/99 of the Home Department from which it transpired that the names of the candidates to the promotional posts were recommended in order of preference following the same seniority in which their names appeared in the provisional gradation list dated 12.3.1999 as the Selection Committee did 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uggesting that minimum of 40% marks may be reduced to 35%. Considering the said request, the Commission forwarded another list of 33 candidates on April 25, 1972. All the 79 candidates were appointed between May 1972 to June 12, 1973. Thereafter, on July 17, 1973, a notification was issued determining the inter se seniority of all the 79 candidates under Rule 19 of the U.P. Civil Service (Judicial Branch) Rules, 1951. In the meantime, the UP Public Service Commission held another competitive examination for appointment to the posts of 150 Munsifs and, eventually, they were appointed on 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 aforemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the 1972 examination on the basis of their position in the merit list but they were not entitled to be treated as senior on the basis of the 1970 examination. 26. We have referred to the facts in detail and what this Court had ultimately held only for the purpose that where recruitment of service is regulated by the statutory rules, the recruitment must be made in accordance with those rules and if any appointment is made in breach of the rules, the same would be illegal and the persons so appointed have to be put in a different class and they cannot claim seniority. 27. In The 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 viola ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so the inference is irresistible that the quota rule had broken down. (E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date." 28. In Madan Gopal Garg v. State of Punjab and others 1995 Supp. (3) SCC 366, the controversy related to inter se seniority of promotees and direct recruits in respect of the posts, namely, District Food and Supplies Controller and Deputy Director, 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 promo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to permanent posts alone. In the said case, the promotees had exceeded their quota and entrenched into the quota of direct recruits and, in that context, the Court held that the promotion given to the promotees was not in accordance with law. The Court further proceeded to state that it did not lie in the mouth of the respondent therein to contend that the quota rule had broken down or that though their promotions were made beyond the quota fixed for promotees, yet the same should be treated not only perfectly valid but also in a manner so as to give them the benefit of seniority over the direct recruits. Eventually, the Bench ruled that the inevitable conclusion was that the 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 Cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Admittedly, this express requirement in Rule 11 was not followed or fulfilled subsequently, and, therefore, the initial ad hoc appointments cannot be treated to have been made according to the applicable rules. These ad hoc appointments were clearly not in accordance with the rules, and were made only as a stopgap arrangement for fixed period, as expressly stated in the appointment order itself." [Emphasis supplied] 33. Recently, in State of Haryana and others v. Vijay Singh and others (2012) 8 SCC 633, the question arose with regard to the fixation of seniority in the backdrop of ad hoc initial appointment made de hors the statutory rules but later on services were regularized by the State Government. The Court took note of the fact that the respondents therein 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause (c) shall not, at any time, exceed five per cent of the total number of posts in the cadre and one post in any particular year. As has been stated hereinabove, there was a requisition for 20 posts to be filled up by special drive. On a query being made during hearing, it was fairly conceded before us that five per cent in the cadre could not have exceeded four posts. Thus, there has been selection in excess of the quota provided in the Rule and nothing had been shown to justify the departure since nothing really could have been demonstrated as the commission had already recommended the names of the candidates meant for direct recruits. 36. Rule 8 deals with recruitment by selection. It is reproduced hereunder: - "8. Recruitment by selection. (1) The Governor may, from time to time, for the purpose of recruitment to the service under Cl. (c) of sub-R. (1) of R. 5, call upon the recommending 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 Depu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng up the list the committee changes the order of seniority of any person in the rank of Inspector of Police or supersedes any one in that rank by omission of his name, the Committee shall record in writing the reason for such change or supersession. (5) The Committee shall forward the list to the Governor and on receipt of the list the Governor shall forward the same to the Commission together with the character rolls and other relevant papers. (6) The Commission shall consider the list prepared by the Committee along with other documents received from the Governor or on receipt of other documents as may be called for by the Commission unless it considers any change necessary, approve the list. If the Commission considers any change necessary, it shall inform the Governor of the changes proposed and after taking into account the comments, if any, by the Governor, may approve the list finally with such modification, if any, as may in its opinion be just and proper. (7) The list, as finally approved by the Commission, shall be forwarded to the Governor along with all the papers received under sub-Rr. (5) and (6)." 38. It n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the direct recruits pending before the State Government. It is also disturbing that though the Cabinet had not approved the proposal for special drive to appoint from other source yet the Director General of Police impressed upon the Commission to recommend 20 names. It is also equally perplexing that the concept of the special drive was meant to have young officers but in the ultimate eventuate, officers were nearing fifty got the appointment. It is obvious that it was totally arbitrary and exhibits indecent enthusiasm to confer benefits on the special batch by making the rules comatosed. 39. At this stage, it is requisite to clarify one aspect. The learned single Judge has treated the selection of the special batch recruits totally de hors the rules and the Division Bench has opined that it is not de hors the rules on the foundation that they were not casual appointees and their recommendation had been made by the Commission and further they had not played any overt act in getting their selection done. 40. In University of Kashmir and others v. Dr. Mohd. Yasin and others (1974) 3 SCC 546, this Court expressed the view that an equitable ground does not clothe an appointm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 5(1)(a); Provided further that in the case of a person recruited under R.5(1)(c) the Governor may, in consideration of his previous service and/or experience, fix a deemed date of appointment for the purpose of seniority after taking into consideration half the period of continuous service in completed years subject to a maximum of 4 years rendered in previous service. (2) Inter se seniority of persons appointed under any of the three clauses of R. 5(1), shall be in the order in which their names appear in the list from which the appointment is made. (3) The date of appointment for the purposes of this rule shall be, if a date is specified in the notification of appointment, such date, or if no such date is specified, the date on which such notification is issued. (4) Notwithstanding anything contained in sub-Rr. (1) to (3) the seniority of a person who does not join the service within three months of the date of appointment as defined in sub-R.(3), shall be determined on the basis of the actual date of his joining the service. (5) If the confirmation of a member of the service is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... satisfied that the operation of any of these rules may cause undue hardship in any particular case, he may order to dispense with or relax the requirements of that rule to such an extent and subject to such conditions as he may consider necessary for dealing with the case in a just and equitable manner : Provided that the case of any person shall not be dealt with in any manner less favourable to him than that provided by any of these rules." 46. As has been observed by the learned single Judge which has been accepted by the Division Bench, there was no decision to relax the rules in favour of the special batch recruits. That apart, whenever there has to be relaxation about the operation of any of the rules, regard has to be given to the test of causation of undue hardship in any particular case. That apart, the authority is required to record satisfaction while dispensing or relaxing the requirements of any rule to such an extent and subject to such conditions as he may consider necessary for dealing with the case in a just and equitable manner. The language of the Rule really casts a number of conditions. It provides guidance. It cannot be exercised in an ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [(2006) 4 SCC1], 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. 52. In Mehar Chand Polytechnic & Anr. vs. Anu Lamba & Ors. [(2006) 7 SCC 161] the 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. 53. We have stated the 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. It should always be borne in mind that legitimate aspirations of the employees are not guillotined and a situation is not created where hopes end in despair. Hope for everyone is gloriously precious and a model employer should not convert it to be deceitful and treacherous by playi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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