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TMI Blog1983 (4) TMI 302X X X X Extracts X X X X X X X X Extracts X X X X ..... ha was also heard and disposed of by the Court along with the writ petition filed by the appellant. 2. The factual matrix in juxtaposition with the relevant rules may be set out in details because the very narration of chronology of events would illumine the contours of controversy. 3 Appellant joined service as Supervisor in the year 1953 in what is styled as Military Engineering Services (MES' for short). He came to be promoted as Assistant Executive Engineer (AEE) in 1962. In the seniority list of 'AEE' drawn up in the year 1963 the appellant was shown at Serial No. 357. In the revised seniority list dated June 14, 1974 impugned in the petition, the appellant did not find a place because consistent with the quota rule on the basis of which the impugned revised seniority list of 1974 was prepared, the appellant was surplus and could not find his berth in the seniority list. It is necessary to note an intervening event. One Bachan Singh and Anr., the two promotees to the post of 'AEE' in the years 1958 and 1959 respectively, filed a writ petition in the High Court of Delhi challenging the appointment of several direct recruits to 'MES' on the grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otion to higher posts. For example a departmental promotee of 1966, if brought on the incurred list in 1970 will count only the service in the grade of AEE after 1970 for seniority in that grade for further promotion as EE. (ii) All excess promotees who are holding higher appointment will be eligible for consideration for further promotion on completion of the requisite service after their adjustment in the cadre. (d) The revised seniority list based on the above decisions will be subject to the out-come of the writ petition pending, in the Andhra Pradesh High Court and any other legal pronouncement that may be made in this behalf. All promotions based on this seniority list will also be subject to revision on the availability of the judgment in the writ petition. While making promotions therefore, it may be made clear that these promotions will be subject to any further decision of the Court. 3. It would be advantageous to mention that the criteria had the flavour emanating from the reading and understanding of the decision in Bachan Singh's case. If the understanding or interpretation of the ratio Bachan Singh's decision is incorrect or contrary to what is laid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 between direct recruits and promotees. At the other end of the spectrum, the submission was that it merely provides a ceiling and not an inviolable quota rule. We would examine both the submissions a little while after. Part II of the Rules makes detailed provision for the competitive examination to be held in India for selecting direct recruits. Rule 21 to 23 in Part III of the 1949 Rules, prescribe qualification and method for recruitment by promotion. One worth noticing is Rule 23 which prescribes that no individual shall be eligible for promotion to the service unless, he would, but for age, be qualified for admission to the competitive examination under Part II. This would mean that except for age all other qualifications including educational qualification for direct recruits and promotees are the same. There are 5 Appendices to 1949 Rules. Para 3 in Appendix V provides for inter se seniority between direct recruits and promotees. Sub para (iii) of para 3 is relevant and may be extracted: (iii) A roster shall be maintained indicating the order in which appointments are to be made by recruitment and promotion in accordance with the percentages fixed for each method of r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Departmental Promotion Committee and Commission as laid down in the Home Department office memorandum No. 33/46-Ests(R) dated June 17th, 1946; mere seniority is considered to confer no claim to promotion. Though these Rules are styled as Rules for recruitment to Military Engineer Services, Class I, omits any reference to recruitment by promotion is wholly absent yet Rule 3 in Appendix IV restated the position that the principles for determining seniority are under consideration. 1961 Rules do not even refer to 1949 Rules but it may be mentioned that 1961 Rules were superseded by 1962 rules. 8. In 1962, the Ministry of Defence by its notification dated April 27, 1962 in exercise of the power conferred by the proviso to Article 309 framed Rules regulating the recruitment to the Military Engineer Services Class I in supersession of 1961 Rules. Both the 1961 and 1962 Rules neither refer to Rule 3 and Rule 4 of 1949 Rules permitting recruitment by promotion and the permissible limit of recruitment by promotion. 1962 Rules restated in Rule 3 in Appendix IV that the principles for determining seniority are under consideration. Further para 8 in Appendix IV was repeated at the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the length of service in that grade as well as service in an equivalent grade irrespective of whether the letter was under the Central or Provincial Government in India or Pakistan. 14. Having journeyed through the maze of Rules, we may turn to the primary contention raised in this appeal. Before we do so, let it be remembered that the appellant is a promotee to AEE in MES Clause I of the year 1962 and by the impugned seniority list of June 14, 1974, he does not find his place in the seniority list and is still in the surplus list to be accommodated at a future date and Mr. Sanghi learned Counsel for the appellant asserted with some vehemence that he cannot come into the service till 1989 when it may be time for him to retire from the service. In other words after having rendered service in a post included in the class I, he is hanging outside the service, without finding a berth in service, whereas direct recruits of 1976 have found their place and berth in the service. This is the situation that stares into one's face while interpreting the quota rule and its impact on the service of an individual. But avoiding any humanitarian approach to the problem, we shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anvassed in this appeal are concluded by a decision of the Constitution Bench of this Court in Bachan Singh and Anr. v. Union of India and Ors. (1972)IILLJ44SC . It must be confessed that in Bachan Singh's case (supra), various rules to which we have drawn attention in the earlier part of the judgment came in for consideration by the Constitution Bench. Therefore, both the sides extensively referred to the various observations and conclusions recorded in the decision and it is incontrovertible that this decision is binding on us and therefore, the contentions canvassed before us will have to be answered within the parameters of the decision of the Constitution Bench. To steer clear of a possible unintended transgression of this binding decision, it is necessary to set out in some details the ratio of the decision of the Constitution Bench in that case? 17. Bachan Singh and Anr. were promoted in the years 1958 and 1959 respectively to AEE in MES Class I Some of the respondents in that case were appointed by direct recruitment, after they had appeared in the competitive examination, but all the respondents were appointed to the service in the years 1962, 1963 and 1964. The fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation with the Union Public Service Commission. The selection was made by the Union Public Service Commission. The appointments by competitive examination proved fruitless. The country was in a state of emergency. Appointment and selection by interview was the only course possible. It could not be said that all appointments should have been made by promotion. That would be not in the interest of the service. The service Rules were administrative in character. The Government relaxed the Rules. The amendments of the rules in 1967 recognised the reality of the situation of appointment by interview. That is why the 1967 amendment recognised that 50 per cent of the direct recruits by competitive/ad hoc appointment were to be reserved for graduate engineers who were commissioned in the Armed Forces on a temporary basis. At an earlier stage, the Court held that during the years 1962, 1963 and 1964 particularly and until the year 1969, the Class I Service Rules were not statutory in character. The Union Government relaxed the Rules both in regard to recruitment by interview and in regard to the quotas fixed by the Rules for direct recruitment and recruitment by promotion to Class I Ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference at all, The proportion of confirmation of departmental promotees and of direct recruits by interview was 1 : 1. The Court then upheld the appointment of those direct recruits who were appointed after interview by the Union Public Service Commission by holding that that was done in relaxation of the rules both as to competitive examination and the promotions were given after relaxing the quota rule. The Court held that direct recruits who were appointed by interview fall within the class of direct recruits. 18. What emerges from the decision in Bachan Singh's Case? '1949 Rules' and the subsequent amendments thereto acquired statutory flavour in 1969 and '1949 Rules' became statutory in character by incorporation only in 1969 and till then they were mere administrative instructions. Rule 3 of '1949 Rules' permitted recruitment only from two sources i.e. by competitive examination and by promotion. Rule 4 permitted the Government to fill in any particular vacancies or such vacancies as may require to be filled during any particular period, the method or methods to be employed for the purpose of filling any particular vacancy and the number o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aff Officer Grade I (Personnel) dated December 7, 1982. This affidavit does not satisfy the query and hardly illumines the blurred area. It merely refers to the variation in the quota, namely, it was raised from 9 : 1 to 1 : 1 upto the end of 1963 and it was again restored to 9:1 after 1964 and the statutory rules of 1969 revised the quota. To this affidavit, some correspondence is annexed which hardly throws any light on the question raised by the Court. 20. If Rule 3 provided methods of recruitment indicating the sources from which recruitment could be made and if rule confers discretion on Government to make recruitment from either source because Rule 4 opens with a limitation, namely, that it is subject to Rule 3, now if as held in Bachan Singh's case '1949 Rules' while prescribing the quota conferred power on the Union Government to make recruitment in relaxation of the rules, it is implicit in this power to make recruitment in relaxation of the quota rules and it is admitted that because of the emergency and because of the exigencies of service, recruitment was made in relaxation of the rules. Now, where the rule provides for recruitment from two sources and si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filled in by nomination of candidates to be selected in accordance with the Rules appended herewith, came in for consideration of this Court. The contention was that the Resolution prescribed a quota and the Government had no discretion to make recruitment in relaxation of the quota and therefore, any recruitment made in excess of the quota in view of the decision in Jaisinghani's case and 2 B.S. Gupta's cases would be invalid. Repelling this contention and distinguishing both the decisions in Jaisinghani's case and 2 B.S. Gupta's cases, the Court observed that the sense of the rule is that as far as possible the quota system must be kept up and if not practicable promotees in place of direct recruits or direct recruits in place of promotees may be inducted applying the regular procedures without suffering the seats to lie indefinitely vacant.' After examining the facts of the case, the Court held that the State had tried as far as practicable to fill 50% of the substantive vacancies from the open market, but failed during the years 1960-1962 and that therefore it was within its powers under the relevant rule to promote mamlatdars who, otherwise, complied with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es are silent on the question of the strength of the service. Keeping in view the exigencies of service and the requirements of the State, temporary posts would be a temporary addition to the strength of the cadre, unless it is made clear to the contrary that the temporary posts are for a certain duration or the appointments to temporary posts are of an ad hoc nature till such time as recruitment according to rules is made. In the absence of any such provision, persons holding permanent posts and temporary posts would become the members of the Service provided the recruitment to the temporary posts is legal and valid. Once the recruitment is legal and valid, there is no difference between the holders of permanent posts and temporary posts in so far as it relates to all the members of the service. This clearly follows from the decision of this Court in S.B. Patwardhan and Ors. etc. etc. v. State of Maharashtra Ors. [1977]3SCR775 , that there is no universal rule, either that a cadre cannot consist of both permanent and temporary employees or that it must consist of both. That is primarily a matter of rules and regulations governing the particular service in relation to which the que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on is, on what principle then in force inter se seniority of promotees and direct recruits recruited to service in relaxation of 1949 Rules including the quota rule was to be determined and how they were to be integrated in the cadre of AEE for further promotion to the cadre of Executive Engineers. 25. The appellant has impugned the seniority list prepared by the Union Government on June 14, 1974. Prior to the impugned seniority list, a seniority list of AEE was drawn up in the year 1963 in which the place of the present appellant was at serial No. 357. There was another seniority list drawn up in the year 1967 in which the appellant found his place at serial No. 234. Then came the decision of the Constitution Bench in Bachan Singh's case whereupon the Union Government set aside the two aforementioned seniority list and drew up a fresh list on the criteria drawn from the decision in Bachan Singh's case as set out in the earlier portion of this Judgment. In this seniority list, appellant did not find his place because he was still surplus in 1974 seniority list and he was hanging out of the service (Trishanku) because he was pushed down after applying the quota from the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irect recruitment and promotion in accordance with the percentages fixed for each method of recruitment in the recruitment rules. The relative seniority of promotees and direct recruits shall be determined by the dates on which the vacancies reserved by the direct recruits and the promotees occur. It would appear at a glance that this rule was related to the quota of 9 : 1 between direct recruits and promotees prescribed in Rule 4. A combined reading of Rule 4 and para 3(iii) of Appendix V would clearly show that a roster has to be maintained consistent with the quota so that the relative inter se seniority of promotees and direct recruit be determined by the date on which vacancy occurred and the vacancy is for the direct recruit or for the promotee. If quota prescribed by Rule 4 was adhered to or was inviolable, the rule of seniority enunciated in para 3(iii) of Appendix V will have to be given full play and the seniority list has to be drawn in accordance with it. But as pointed out by this Court in Bachan Singh's case during the years 1959, 1969 and especially during 1962, 1963 and 1964 on account of adverse market conditions for recruitment of engineers, the Government had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cadre of Assistants should generally been taken as the model in framing the rules of seniority for other services and in respector of persons employed in any particular grade seniority should as a general rule be determined on the basis of the length of service in that grade as well as service in an equivalent grade irrespective of whether the latter was under the central or provincial Government in India or Pakistan This was the rule of seniority which would be applicable in the absence of any other rule specifically enacted for MES Class I service it could have been urged with confidence that the seniority rule enunciated in part 3(iii) of Appendix V of '1949 Rule' was the one specifically enacted for MES Class I service and the special rule would prevail the general rule issued in Army Instruction No. A.I. 124 of 1950. But as pointed out earlier, the rule in para 3(iii) of Appendix V gave way when the quota rule was relaxed This is recognised by the Ministry of Defence when while enacting '1953 Rules', a provision was made in para 3 of Appendix V that the principles for determining seniority are under consideration Assuming that the rule of seniority of para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibing the criteria on which the impugned 1974 seniority list is founded, is the assumption that there was an inviolable quota rule which could not be relaxed. The second criterion recites that seniority list of Assistant Executive Engineers is to be prepared upto 1968 and excess departmental promotees who cannot be brought into the cadre have to be shown separately and brought into the cadre on the basis of quota as and when vacancies become available. As clearly brought out hereinbefore, the recruitment was made in relaxation of the quota. Once the quota rule was relaxed, the quota for confirmation disappeared. In the absence of any other rule coupled with the Army Instruction upto 1968 continuous officiation would be the only available rule for determining the inter se seniority. And it may be recalled that both the 1963 and 1967 seniority lists were drawn up in accordance with that principle. Thus the two fundamental basic assumptions on which the impugned seniority list was drawn up are wholly invalid and contrary to the relevant rules, and any seniority list based thereon must fail. But this conclusion alone would leave the matter again in the hands of the first respondent wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irect recruits are on par. One need not therefore, look upon promotees as persons belonging to an inferior breed. The promotees were promoted by the Government to man its services keeping in view the exigencies of service and non-availability of direct recruits as held in Bachan Singh's case and as admitted before us. And while giving promotion, it was not even for a moment suggested that the promotions are ad hoc or till such time as direct recruits are available or for a limited period. Therefore, the promotions were regular promotions, may be to the temporary posts which was a temporary addition to the strength of the service. But to all intents and purposes, the promotion of the promotees during this period was a regular promotion and the promotees have held the posts uninterruptedly for all these years meaning thereby that it could never be said that posts were not available. Even then by the impugned seniority list, 1962 promotee is hanging, outside the cadre and the list drawn up on such an illegal and invalid criteria has led to such a startling result that is 1962 promotee does not find his berth in service even in 1974. 32. The next question is whether 1963 seniori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nical contentions of minor importance. 35. It was contended that those members who have scored a march over the appellant in 1974 seniority list having not been impleaded as respondents, no relief can be given to the appellants. In the writ petition filed in the High Court, there were in all 418 respondents. Amongst them, first two were Union of India and Engineer-in-Chief, Army Headquarters, and the rest presumably must be those shown senior to the appellants. By an order made by the High Court, the names of respondents 3 to 418 were deleted since notices could not be served on them on account of the difficulty in ascertaining their present addresses on their transfers subsequent to the filing of these petitions. However, it clearly appears that some direct recruits led by Mr. Chitkara appeared through counsel Shri Murlidhar Rao and had made the submissions on behalf of the directs. Further any application was made to this Court by 9 direct recruits led by Shri T. Sudhakar for being impleaded as parties, which application was granted and Mr. P.R. Mridul, learned senior counsel appeared for them. Therefore, the case of direct recruits has not gone unrepresented and the contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e basis of impugned seniority list, in which the appellant and several similarly situated AEE promoted way back in 1962 onwards did not find their place and were therefore not treated as being within the zone of selection. This relief must follow as a necessary corollary because once 1974 seniority list is quashed and consequently a declaration is being made that 1963 and 1967 seniority lists were valid and cannot be set at naught by principles of seniority determined in 1974, any panel drawn up on the basis of the invalid seniority must fall and must be quashed. Pursuant to an integrated reading of Judgment in Bachan Singh's case and this case a fresh panel for promotion will have to be drawn up consistent with the seniority list of 1963 1967 because it was not disputed that promotion from the cadre of AEE to Executive Engineer is on the principle of seniority-cum-merit. It may be mentioned that the appellant had sought interim relief by way of injunction restraining the respondents not to promote anyone on the basis of the panel. this Court declined to grant such relief because exigencies of service do demand that the vacancies have to be filled. But in order to protect the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion worsened thereafter. In the case in hand, appellant a promotee of September 27, 1962 is put below N.K. Prinza who appeared at competitive examination in April 1976 i.e. one who came 14 years after the appellant, and it does not require an intelligent exercise to reach a conclusion that 14 years prior to 1976 Mr. Prinza who is shown to be born on July 20, 1950 must be aged about 12 years and must have been studying in a primary school. Shorn of all service jurisprudence jargon one can bluntly notice the situation that a primary school student when the promotee was a member of the service, barged in and claimed and got seniority over the promotee. If this has not a demoralising effect on service one fails to see what other iniquitous approach would be more damaging. 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 according to 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 woul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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