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REPORTABLE
IN THE SUPRTEME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 4157 0F 2009
[Arising out of Special Leave Petition(Civil) No. 12948 of 2007]
Radha Mohan Malakar and others .. Appellants
-versus-
Usha Ranjan Bhattacharjee and others .. Respondents
JUDGMENT
Markandey Katju, J.
1. Leave granted.
2. This appeal by special leave has been filed against the final judgment
and order dated 5.4.2006 passed by the High Court of Gauhati in Writ
Appeal No. 166 of 2004.
3. Heard learned counsel for the parties and perused the record.
4. The dispute in this case is about relative seniority between the direct
recruits of 1990 and promotees of 1991 to the Grade -II of the Tripura Civil
Service which has been constituted under the Tripura Civil Service Rules
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1967. The appellants in this case are direct recruits and the respondents are
promotees.
5. The promotees filed a writ petition before the learned Single Judge of
the Gauhati High Court which was dismissed on 23.4.2004, but against that
judgment a writ appeal was filed by the promotees which was allowed by the
impugned judgment dated 5.4.2006 of the Division Bench of the High Court.
Hence this appeal by the direct recruits.
6. The fixation of the inter se seniority of the members of the Tripura
Civil Service (in short, `the TCS’) is governed by Rule 28 of the Tripura
Civil Service Rule, 1967 (in short, `the TCS Rules’). Sub-rule (iii) of Rules
28, which had been the subject of repeated controversy, read as under:
“The relative seniority of direct recruits and of
promotees shall be determined according to the rotation
of vacancies between direct recruits and promotees
which shall be based on the quotas of vacancies reserved
for direct recruitment and promotion under rules 5”
7. The Government of Tripura had earlier issued a notification, dated
25.5.1981 enunciating the principles governing the inter se seniority
between the direct recruits and promotees purportedly consistent with Rule
28(iii). The notification dated 25.5.1981, aforementioned, is reproduced
herein below:-
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“Government have observed that certain
difficulties have arisen in the implementation of the
general principles of determining seniority of various
categories of persons employed under the Tripura
Government, as incorporated in Tripura Administration’s
order No. F1.(16)-GA/59 dated 12.7.1960.
2. It is clarified that the rotation and the fixation of
relative seniority of direct recruits and regular promotees
shall be done taking into account only such officers as
are appointed from either source to the same grade and
the same cadre within any single calendar year.
3. Any final seniority list already notified by the
Government shall not be liable to revision merely
because of the issue of the present order.
By order & in the name of the Governor
Sd/- S.R. Sankaran
Chief Secretary to the
Government of Tripura”.
8. The notification dated 25.5.1981, aforementioned, came to be
challenged in Civil Rule No. 204/81 by the promotees of Grade-II of the
TCS, who had formed an association under the name and style of the
Association of Civil Service Officers, Tripura, Agartala. By judgment and
order dated 29.7.1992, a Division Bench of the High Court allowed the Civil
Rule and quashed the impugned notification dated 25.5.1981,
aforementioned.
9. While quashing the said notification dated 25.5.1981, the Division
Bench observed and held inter alia, as follows:
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“It is well settled in a catena of decisions by the
Hon’ble Supreme Court that when there are two sources
of recruitments to a service with a fixed quota, the quota
rule has to be followed and there should not be any
deviation in following the quota rules. It has also been
well settled by the catena of decisions by the Hon’ble
Supreme Court that if the promotees happen to occupy
the vacancies which are within the quota of direct
recruits, when direct recruitment takes place, the direct
recruits will occupy the vacancies within their quota and
the promotees who are occupying the vacancies within
the quota of direct recruits will either be reverted or be
absorbed in the vacancies within their quota. So also
when direct recruits appointed in the vacancies which
are within the quota of promotees after the recruitment
by promotion taken place the promotees will occupy the
vacant post within their quota.
It is apparent that by the impugned notification,
rotation and fixation of relative seniority of direct
recruits and promotees has been confined to the recruits
of a calendar year, even if in a calendar year recruitment
is made from only one source or from a source in excess
of the fixed quota. Thus, the impugned notification
confining the fixation of relative seniority between the
direct recruits and promotees to the recruits of a
calendar year purports to frustrate and override the very
tenet of quota rules and the well settled principles of
fixation of relative seniority between the direct recruits
and promotees when the recruitment to the service is
made against the quota vacancies reserved for the direct
recruitment and promotion.
On a bare reading of the provision of rules 28 of
the Tripura Civil Service Rules, 1967, and the impugned
instruction, it becomes apparent that the impugned order
dated 28.5.1981 is inconsistent with and violative of the
provision of rule 28 of the TCS Rules. It is well settled
that provisions of statutory rules cannot be overridden or
violated by administrative instruction and that
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administrative instruction which is inconsistent with and
violative of the Rules, is illegal and void. For the reason
stated above, we have no hesitation to hold that the
impugned order dated 28.5.1991 being ex-facie
inconsistent with and/or violative of the provisions of
Rules 18 of the Tripura Civil Service Rules, 1967 is
illegal and void. The petition is, therefore, allowed and
impugned notification dated 28.5.1981 is quashed. We
make no order as to costs”.
(emphasis supplied)
10. The said decision rendered by the Division Bench in Civil Rule No.
204/1981 dated 29.7.1992 remained unchallenged and accordingly attained
finality. The Government of Tripura prepared and published Office
Memorandum dated 25.7.1997 which was a draft seniority list purportedly
in terms of the decision in Civil Rule No. 204/1981,by placing the
promotees, irrespective of their individual date of recruitment, to their
respective slots in the gradation list on the basis of Quota Rota Rule.
Subsequent thereto, however, a Government order dated 25.5.2000 was
issued clarifying the general principles for determination of seniority
between the direct recruits and the promotees with reference to the decision
in Civil Rule No.204/1981.
11. Acting upon the said order dated 25.5.2000, the State Government
published afresh, vide order dated 9.6.2000 a seniority list of the officers of
the Tripura Civil Service Grade-II whereby the direct recruits of 1990 were
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placed en-bloc over the promotees of 1991. The Government order dated
25.5.2000 aforementioned as well as the seniority list dated 9.6.2000,
aforementioned came to be challenged by some promotees of 1991, in two
writ petitions, namely, Writ Petition Nos. 293/2000 and 294/2000.
12. While dismissing the two writ petitions on 23.4.2004, the learned
Single Judge concluded that since the direct recruits had been recruited to
Grade-II of the TCS prior to the promotion of the writ petitioners thereto and
that the direct recruitment had remained confined within the quota meant for
being filled up by direct recruitment, the writ petitioners, on being
subsequently promoted to the Grade-II of the TCS, cannot be granted
seniority over the direct recruits, for the promotees were not even born in the
cadre of the TCS on the dates when the private respondents were directly
recruited to Grade-II of the TCS. It was the correctness of this conclusion,
which was challenged in writ appeal before the Division Bench of the High
Court.
13. The Division Bench by the impugned judgment has set aside the
judgment of the learned Single Judge and allowed the appeal and set aside
the judgment of learned Single Judge dated 23.4.2004 as well as clarificatory
order dated 25.5.2000 and the impugned gradation list dated 9.6.2000. The
Division Bench directed the authority to prepare a fresh gradation list in
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respect of the Grade II of the Tripura Civil Services in terms of the
principles embodied in the unamended Rule 28 (iii) of the Tripura Civil
Services 1967 and in the light of its observations. The order was restricted
to the appellants and private respondents before the Devision Bench.
14. The Division Bench held that the impugned clarificatroy order dated
25.5.2000 and the impugned seniority list published by order dated 9.6.2000
were contrary to the provisions of Rule 28 (iii) of the Rules. The Division
Bench also held that the impugned order dated 25.5.2000 sought to achieve
the same object which the notification dated 25.5.1981 sought to realize, and
since the said notification dated 25.5.1981 has already been quashed, the
question of bringing in another notification having the same effect cannot
arise and cannot be legally permitted.
15. In the year 1989, 25 promotees were recruited in TCS. 32 direct
recruits by way of competitive examination were recruited in TCS in the
year 1990 against the substantive vacancies in the cadre of 1987/1988 for
which the advertisement was issued in year 1988. The appellants herein are
some of the direct recruits belonging to 1990 batch. 52 promotees were
again recruited in TCS in year 1991. Private respondents no.1 to 12 are all
promotees who belong to the 1991 batch. However, only these 12
respondents herein filed the Writ Appeal No. 166/2004 whose judgment is
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impugned herein. By the impugned judgment herein the seniority between a
handful of parties in this petition has been disturbed by the High Court.
16. It is contended by the appellants that the High Court ought to have
considered the seniority between the 1989 promotees, 1991 promotees on
the one hand and 1990 direct recruits on the other hand. Many of the
promotees belonging to the 1989 and 1991 batch have retired from service.
However, it is alleged by the appellants that in view of the impugned
judgment now the seniority is wrongly sought to be fixed qua the 1990
(direct recruits) and 1991 (promotees) confined to the parties in the present
petition, which is erroneous.
17. The Association of Civil Service Officers in TCS challenged the
aforesaid notification dated 25.5.1981 in Civil Rule No. 204 of 1981 before
the Gauhati High Court Agartala Bench. The Division Bench of Gauhati
High Court Agartala Bench vide final judgment and order dated 29.7.1992
quashed the notification dated 25.5.1981.
18. It was held by the High Court in the impugned judgment that the
administrative order dated 25.5.2000 of rotation and fixation of relative
seniority of direct recruits and promotees has been confined to the recruits of
a calendar year, even if in a calendar year recruitment is made from only one
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source or from a source in excess of the fixed quota. Hence it was held that
the administrative order dated 25.5.2000 purports to frustrate and override
the very tenet of quota rules when the recruitment to the service is made
against excess of quota of vacancies reserved for direct recruitment and
promotion.
19. The provisional draft seniority list was published by the Government
of Tripura vide memorandum dated 25.7.1997 comprising of the seniority
list for batches of 1989 (promotees), 1990 (direct recruits) and 1991
(promotees). True copy of the draft seniority list published by Government
of Tripura dated 25.7.1997 is produced as Annexure P-3 to the appeal.
20. The appellants filed a Writ Petition No.110 of 2000 before the High
Court, Gauhati challenging the aforesaid seniority list dated 25.7.1997. It
was subsequently withdrawn in view of the administrative order dated
25.5.2000 and the seniority list dated 9.6.2000.
21. The Government of Tripura issued the administrative order dated
25.5.2000 governing the general principles of relative seniority between
direct recruits and promotees in TCS. It was specifically clarified therein
that the persons recruited in excess of the quota from any source shall not
get rotational seniority in the same calendar year but shall be reverted to the
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year where they can be accommodated in the respective quota of that year,
which was not clarified in the earlier notification dated 25.5.1981.
22. The administrative order dated 25.5.2000 issued by the Government
of Tripura reads as follows :-
“No. F.23 (9)-GA (P&T)/2000
Government of Tripura
Central Administration (P&T) Department25th May, 2000
ORDER
Subject :- General Principles for determination seniorityThe State Govt. observed that certain difficulties had
arisen in the implementation of the general principles of
determining seniority of various categories of persons
employed under the State Govt. as incorporate in Tripura
Administration’s order no. F.1 (16)-GA /59 dated 12.7.1960.
2. To overcome the difficulties a clarification was issued vide
order No. F.1 (11)-GA /59 dated 28.5.1981. According to
that clarification rotation and fixation of relative seniority of
direct recruits and promotees was to be done taking into
account only such officers as were appointed from either
source to the same grade and the same cadre within any
single calendar year.
3. The Hon’ble Gauhati High Court in CR 204 of 1981
quashed the aforesaid order on the ground that it confined
rotation and fixation of relative seniority, even if in a
calendar year recruitment from one source is made in excess
of the quota. Accordingly, a formal order was issued vide
No. F. 23 (47)-GA /81 dated 8.7.1993 for not giving effect
to the former order.
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4. However, the difficulties as aforesaid, persist and to over
come the same it is clarified again, in modified form in the
light of the decision of the Hon’ble High Court, that the
rotation and fixation of relative seniority of direct recruits
and the promotees shall be done taking into account only
such officers as are appointed from either source to the same
grade and the same cadre within any single calendar year if
the recruitment are made within the respective quota.
Persons recruited in excess of the quota from any source
shall not get rotational seniority in the same calendar year
but shall be reverted to the year where they can be
accommodated in the respective quota of that year.
5. Any final seniority list already notified by the Govt. shall
not be liable to revision merely because of the issue of the
present order.
By order of the Governor
(S.K. Roy)
Secretary to the Govt. of
Tripura
23. The seniority list of existing officers in Grade II batches of 1989
(promotees), 1990 (direct recruits), and 1991 (promotees) in the Tripura
Civil Services was published by the Government vide office memorandum
dated 9.6.2000.
24. It was submitted by the respondents-promotees before us that in the
seniority list as per Notification dated 9.6.2000, all the 1989 batch
promotees (25 in number) were placed en-bloc senior over 1990 direct
recruits. The 1990 direct recruits were placed en-bloc senior over 1991
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promotees batch. It was submitted that this was in violation of the judgment
of the Division Bench of the High Court dated 29.7.1992. True copies of the
office memorandum and final seniority list dated 9.6.2000 is produced as
Annexure P-5 to the appeal.
25. The learned Single Judge before whom the writ petition was filed held
that the principle of determination of the seniority contained in the
memorandum dated 25.5.2000 does not contravene Rule 28 (iii) of the
Rules. However, the Division Bench of the High Court has reversed the said
judgment and hence this appeal.
26. In our opinion this appeal deserves to be allowed.
27. In this connection reference may be made to the three Judge Bench of
this Court in N. K. Chauhan and Ors. vs. State of Gujarat and ors. 1977
(1) SCC 308. In paragraphs 32 and 33 of the aforementioned decision this
Court has observed:-
"32. We therefore reach the following
conclusions:
1. The promotions of mamlatdars made by Government
between 1960 and 1962 are saved by the `as far as
practicable’ proviso and therefore valid. Here it falls
to be noticed that in 1966 regular rules have been
framed for promotees and direct recruits flowing into
the pool of Deputy Collectors on the same quota basis
but with a basic difference. The saving provision `as
far as practicable’ has been deleted in the 1966 rules.
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The consequence bears upon seniority even if the year
is treated as the unit for quota adjustment.
2. If any promotions have been made in excess of the
quota set apart for the mamlatdars after rules in 1966
were made, the direct recruits have a legitimate right
to claim that the appointees in excess of the allocable
ratio from among mamlatdars will have to be pushed
down to later years when their promotions can be
regularised by being absorbed in their lawful quota for
those years. To simplify, by illustration, if 10 deputy
collectors’ substantive vacancies exist in 1967 but 8
promotees were appointed and two direct recruits
alone were secured, there is a clear transgression of
the 50 : 50 rule. The redundancy of 3 hands from
among promotees cannot claim to be regularly
appointed on a permanent basis. For the time being
they occupy the posts and the only official grade that
can be extended to them is to absorb them in the
subsequent vacancies allocable to promotees. This
will have to be worked out down the line wherever
there has been excessive representation of promotees
in the annual intake. Shri Parekh, counsel for the
appellants has fairly conceded this position.
3. The quota rule does not, inevitably, invoke the
application of the rota rule. The impact of this position is
that if sufficient number of direct recruits have not been
forthcoming in the years since 1960 to fill in the ratio
due to them and those deficient vacancies have been
filled up by promotees, later direct recruits cannot claim
`deemed’ dates of appointment for seniority in service
with effect from the time, according to the rota or turn,
the direct recruits’ vacancy arose. Seniority will depend
on the length of continuous officiating service and cannot
be upset by later arrivals from the open market save to
the extent to which any excess promotees may have to be
pushed down as indicated earlier.
33. These formulations based on the
commonsense understanding of the resolution of 1959
have to be tested in the light of decided cases. After all,
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we live in a judicial system where earlier curial wisdom,
unless competently overruled, binds the Court. The
decisions cited before us start with the leading case in
Mervyn Coutindo vs. Collector of Customs AIR 1967
SC 52, and closes with the last pronouncement in V.B.
Badami vs. State of Mysore 1976(2) SCC 901. This
timespan has seen dicta go zigzag but we see no
difficulty in tracing a common thread of reasoning.
However, there are divergencies in the ratiocination
between Mervyn Coutindo and Govind Dattatray
Kelkar vs. Chief Controller of Imports and Exports
AIR 1967 SC 839 on the one hand and S.G. Jaisinghani
vs. Union of India AIR 1967 SC 1427, Bishan Sarup
Gupta vs. Union of India 1973(3) SCC 1, Union of
India vs. Bishan Sarup Gupta 1975(3) SCC 116 and
A.K. Subraman vs. Union of India 1975(1) SCC 319
on the other, especially on the rota system and the year
being regarded as a unit, that this Court may one day
have to harmonize the discordance unless Government
wakes up to the need for properly drafting its service
rules so as to eliminate litigative waste of its servants’
energies.”
(emphasis supplied)
28. The aforesaid decision has considered the earlier decisions of this
Court including the Constitution Bench decision in Mervyn Coutindo vs.
Collector of Customs AIR 1967 SC 52, S.G. Jaisinghani vs. Union of
India AIR 1967 SC 1427, V. B. Badami vs. State of Mysore, 1967 (2)
SCC 901, etc.
29. In our opinion the principle of the decision in N. K. Chauhan’s case
(supra) can be illustrated by taking a hypothetical example. Suppose in a
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particular service 50% of the vacancies are to be filled in by promotion and
50% by direct recruitment, and suppose there is a rule that the inter se
seniority of direct recruits and promotees is to be fixed according to the
rotation of vacancies between direct recruits and promotees in the manner
that the first post will go to a promotee, the second to a direct recruit, the
third to a promotee, the fourth to a direct recruit, and so on. Even here the
ordinary rule that seniority will depend on the length of the continuous
officiating service has to be followed unless the quota of direct recruits or of
the promotees has been exceeded. It is only if the said quota is exceeded
that the appointees have to be pushed down in the seniority, otherwise
seniority has to be taken from the date of continuous officiating service. In
the present case it is admitted that the quota of direct recruits has not been
exceeded. Hence, in our opinion, the seniority of direct recruits (appellant)
has to be taken from the date of their initial appointment and they cannot be
pushed down in seniority. The promotees (respondents herein) were
appointed to the Grade II of TCS after the appointments of the direct recruits
(appellants). Hence the former have to be treated as junior to the latter. The
earlier Division Bench decision of the High Court dated 29.7.1992 has to be
understood in the light of the decision of this Court in N.K. Chauhan’s case
(supra).
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30. The result of the impugned judgment of the Division Bench will be
that the 1990 direct recruits who were recruited against vacancies created
before 1988 will be pushed below the 1991 promotees in seniority. In our
opinion such a view is clearly erroneous in law.
31. In our opinion the Government’s order dated 25.5.2000 and office
memorandum dated 9.6.2000 are valid and are in accordance with the
Tripura Civil Service Rules, and the view of the Division Bench is not
correct.
32. In B.S. Mathur and another vs. Union of India and Others, 2008
(10) SCC 271 it was observed that ordinarily inter se seniority is to be
determined on the basis of continuous length of service. The Court in the
aforementioned decision has referred to the earlier decision in O.P. Singla
and Another vs. Union of India and Others, 1984 (4) SCC 450 and
Rudra Kumar Sain and Others. Vs Union of India and Others, 2008 (8)
SCC 25.
33. Since the quota of direct recruits has not been exceeded hence in our
opinion the seniority has to be calculated from the date of the initial
appointment and the said seniority cannot be pushed down.
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34. For the reasons given above this appeal is allowed, the impugned
judgment of the Division Bench is set aside and judgment of the learned
Single Judge is upheld. No orders as to costs.
………………………J.
(R. V. Raveendran)
………………………J.
(Markandey Katju)
New Delhi:
July 07, 2009.