ORDER
1. These two writ petitions raise a common point of law i.e. fixation of the seniority of the petitioners, who were promotees to the posts of Assistant Traffic Managers and Assistant Mechanical Engineers vis-a-vis direct recruits. It is their case that the posts of Assistant Traffic Managers and Assistant Mechanical Engineers are Class-I Junior Scale Officers posts and they were promoted and posted to the said posts after subjecting them to regular selection process. They state that for several years to come, there was no direct recruitment to the above posts and as such promotions were effected from the lower feeder posts even in excess of the ratio of 1 : 1 contemplated under the rules titled “A.P.S.R.T.C. Employees (Recruitment) Regulations, 1966”. It is needless to mention that whenever direct recruitment is not possible within a short period and when administrative exigencies warrant the filling of important posts like the one in the instant case, promotions are effected either on ad hoc basis or on temporary basis and in the course of time, they will be regularised. Much depends upon the situation at the time of appointing the said personnel. If the appointments were made for a short specified period, considerations will be different, as it cannot be said that any right accrues to such personnel, but considerations would be entirely different, even though the personnel are promoted on temporary basis, but continued as such without any interruption for a longer tenure and then are regularised in the said promoted posts. Here, while the petitioners who were admittedly seniors to the direct recruits and intended into the above posts, firstly, on temporary basis and later on regularised, are placed below in seniority list than the direct recruits who entered service much later to them. While the petitioners contend that there is no justification for such demotion in ranks, the respondents seek to justify the same on the ground that the same is in consonance with the quota rule of 1 : 1 contemplated under the statutory rules mentioned supra.
2. Mr. Surender Rao, the learned counsel for the petitioners contends that in as much as there was no recruitment to the posts of Assistant Traffic Managers and Assistant Mechanical Engineers for a sufficiently long period of 10 years and as the petitioners were appointed on permanent basis even though it was mentioned as against their appointments as temporary and that the said employment of the words “temporary” is a misnomer. He takes help from the mode of selection mentioned under Annexure-A to the Regulations as against the posts of Assistant Traffic Managers which is extracted below :
(1) In a unit of 4, the 1st and 3rd vacancy shall be filled in by appointing an officer/under trainee, who has successfully completed his training and 2nd and 4th by a promotion of a Chief Inspector;
(2) If a suitable candidate is not available in a particular category for filling up a vacancy reserved for that category, the vacancy may be filled in by a suitable candidate from the other categories;
(3) If no suitable candidate is available in any of the categories mentioned above, the post may be filled in by direct recruitment by selection.
The rule pertaining to the mode of promotions of Assistant Mechanical Engineers is as stated below :
(1) In a unit of 5 vacancies, the 1st, 3rd, and 5th shall be filled in by appointing of an officer/under trainee, who has successfully completed his training and 2nd and 4th by promotion of a Foreman;
(2) A member of Supervisory staff who has passed Sections A and B of the Associate Membership examination of the Institute of Engineers (India) and who has shown outstanding merit may also be considered for promotion along with the Foreman;
(3) If a suitable candidate is not available in a particular category for filling up a vacancy reserved for that category, the vacancy may be filled in by a suitable candidate from the other category.
(4) If no suitable candidate is available in any of the categories mentioned above, the post may be filled in by direct recruitment by Selection.
His argument is that inasmuch as the direct recruitment process was not resorted to for a long period of 10 years, and that it was resorted to only 6 times in a span of 25 years, the promotees cannot be deemed to be temporary and that merely because the direct recruits could not be appointed, the quota cannot be stretched and kept waiting for them for any length of time. Concisely speaking, his argument is that quota rule is flexible and when direct recruitment cannot be made, the proportion relating to the said mode of selection can be availed of for promotees and that as such, the petitioner’s probation under Regulation 20 of the above Regulations is deemed to have commenced from the date of their first entry into service, regardless of the fact that they were termed temporary. His further submission is that the petitioners were “on duty” as they were performing the duties of Assistant Traffic Managers and Assistant Mechanical Engineers borne on the cadre of said service and that they are not the persons officiating in the said posts within the meaning of the word “officiating” or “temporary post” under clauses 10 and 11 of Regulation No. 2. He also lays stress on Regulation 30, dealing with temporary promotions stating that the said temporary promotions are made only on emergency basis pending the finalisation of regular process of selection to that post and that the petitioners do not fit in the said category of temporary promotees as their selection was not on emergency basis and their selection was made by subjecting them to regular process of selection constituting selection committees and may be that they are recruited even in quota meant for direct recruits, but by reason of that the petitioners cannot be deprived of their seniority by giving a notional seniority above them to the direct recruits, who are juniors to the petitioners. In effect, the argument of Mr. Surender Rao is that inasmuch as the candidates were not available from the category of direct recruits for filling up the 1st and 3rd vacancies of Assistant Traffic Managers and 1st, 3rd and 5th vacancies of Assistant Mechanical Engineers in accordance with the Annexure-A appended to the Regulations, promotions were affected to the same from lower feeder posts and such a course is not prohibited by the Regulations. He mainly relies upon the judgment of the Constitutional Bench rendered in Direct Recruit Class II Engg. Officers’ Association v. State of Maharashtra and also the judgments rendered by the Supreme Court in N. K. Chauhan v. State of Gujarat , S. B. Patwardhan v. State of Maharashtra AIR 1971 SC 2051 and G. S. Lamba v. Union of India 1985-II-LLJ-282
3. Countering the said arguments, Mr. K. Subramanyam Reddy, the learned senior counsel appearing for the direct recruits, mainly relied upon Regulation 18 of the Regulations which reads thus :
“If a person, having been appointed temporarily under clauses (1), (3) or (6) of Regulation 17 to a post borne on the cadre of any service, or having been appointed to any service otherwise than in accordance with the regulations governing appointment thereto is subsequently to the service in accordance with these regulations, he shall commence his probation from the date of such subsequent appointment or from such earlier date (not being earlier than the date of his first appointment on a temporary basis) as the appointing authority may determine. He shall also be eligible to draw increments in the time scale of pay applicable to him from the date of commencement of the probation, but shall not be entitled to arrears of pay unless otherwise ordered by the Corporation.”
His argument is that as the petitioners were appointed on temporary basis in the exigencies of administration under Regulation 17, the petitioners cannot claim the said date of temporary appointment to be reckoned as the regular entry into service and that their probation commences only after the said post of Assistant Traffic Manager and Assistant Mechanical Engineer occurred in accordance with the quota rule. He further contents that since the regulation governs the situation, the petitioners cannot plead their rights beyond the regulations and that the petitioners were officiating in the vacancies of direct recruits and as such, the fixation of their seniority in the cadre of Assistant Traffic Manager and Assistant Mechanical Engineer is dependent upon quota-rota rule. He further contends that invoking Regulation 34 of the Regulations the petitioners were appointed to the said post temporarily and the petitioners had accepted the said appointments and consequently rendered themselves liable for reversion as soon as the direct recruits were appointed in conformity with their quota and submits that even though the promotees were continued without reversion, they cannot be deemed to be appointed to the posts regularly and that they were appointed to the said posts only when their due turn came in accordance with quota rule. Mr. Subramanyam Reddy placed reliance on the decisions in V. D. Badami v. State of Mysore , Sonal v. State of Karnataka 1987-II-LLJ-442 Keshav Chandra Joshi v. Union of India . Sehgal v. Raje Ram Sheoran 1991-II-LLJ-50 Krishna Murthy v. A.P.S.R.T.C. 1987 (1) ALT 520 and Delhi W.S. & S. Disposal Committee v. R. K. Kashyap . and unreported Division Bench judgment dated August 19, 1976 rendered in W.A. Nos. 480, 485 and 492 of 1975. Mr. C. V. Ramulu, the learned counsel appearing for the APSRTC, adopts the arguments of Mr. K. Subrahmanya Reddy.
4. In so far as the facts are concerned, the eligibility of the petitioners for promotion to the posts of Assistant Traffic Managers and Assistant Mechanical Engineers is not disputed. It is not disputed that only for six times during 1971, 1973, 1975, 1977, 1987 and 1988, direct recruitments were made after the Regulations of 1966 came into force. The promotions in question were made in between the period 1977 and 1986. It is not disputed that for the said long period, direct recruitments were not resorted to and some explanation is given on that count. That explanation may be plausible empowering APSRTC to resort only to promotions even in excess of their quotas as the direct recruitments were not made pertaining to their quotas. But the question is as to whether the promotees in excess of their quota do not form the cadre and as to whether they are ex-cadre employees not entitled for promotion from the date of entry into service. The further question is as to whether the petitioners are officiating in the posts of Assistant Traffic Managers and Assistant Mechanical Engineers and as to whether the same was purely a stop-gap arrangement pending appointment of direct recruits. In so far as mode of appointment is concerned, it is not disputed that the petitioners were subjected to the regular process of selection by observing seniority rule and that their services were not interrupted since their respective dates of entry into promoted posts.
5. Dealing with the legal contentions, the issue relating to integration of services of direct recruits and promotees and their relative ranking and seniority was subject matter of several judicial verdicts and divergent opinions. One view was that when there is a quota fixed, the appointment should be in accordance with the quota by rotation and appointments in excess of the said quota should be treated as only temporary without treating them as in cadre in order to pave way for the personnel appointed later in accordance with the quota rule. In S. G. Jayasingani v. Union of India , it was held that quota rule was a statutory rule binding or the Government and having fixed the quota, there was no discretion left to the Government to alter that quota later according to the exigencies of the situation or to deviate from the quota in any particular year at its own will and pleasure and the quota rule was linked up with the seniority rule and unless it was strictly observed in practice, observance of seniority rule would become difficult and that promotees in excess of prescribed quotas for each of the years were illegally promoted and that the Government was, therefore, bound to adjust the seniority of the direct recruits and prepare a fresh list of seniority after adjusting the recruitment for that period in accordance with the quota rule. The said view was approved in B. S. Gupta v. Union of India . Quoting the said Jayasingani’s case (supra) with approval and dealing the case relating to Income-Tax Officers, the Supreme Court held that promotees are entitled to their quota of 1/3rd of vacancies in any particular year whether or not there was direct recruitment by competitive examination in that year. In Bishan Sarup v. Union of India also, the said proposition was upheld. In P. C. Sethi v. Union of India 1975-I-LLJ-520 the Supreme Court while laying down the same principle, has held that the entire groups of temporary Assistants could not claim seniority by the rule of length of continuous service without appropriate compliance with the condition laid down under instructions. These four judgments were relied upon in the matter arising under Writ Appeal Nos. 480, 485 and 492/1975 by a Division Bench of this court. In the said cases also, the same question as raised in these cases arose relating to the seniority of the Assistant Mechanical Engineers and Assistant Traffic Managers inter se promotees and the direct recruits. In the said case also, the promotions were made under the quota earmarked for direct recruits. The direct recruits were recruited as officers under training for the post of Assistant Mechanical Engineers and Assistant Traffic Managers on February 15, 1969. They were to undergo training for two years and they were termed till then as probationary officers with effect from February 12, 1969 having a right accrued in them for appointment of specific vacancies first and third in the case of Assistant Traffic Managers and first, third and fifth in the case of Assistant Mechanical Engineers. Meanwhile from November 2, 1968 to November 5, 1970, the respondents-promotees were appointed by promotion to the said posts of Assistant Traffic Managers and Assistant Mechanical Engineers. The Division Bench also made a distinction between an officer who was selected for training and waiting in wings for automatic appointment to the earmarked post, be it Assistant Mechanical Engineers or Assistant Traffic Managers and a totally stranger-direct recruit contemplated by the residuary clauses of the said items 9 and 10 of Annexure-A. It was held by the said Division Bench that direct recruitment under the said residuary clauses is different and distinct type of direct recruitment intended to be taken recourse to in an emergency when the usual direct recruits or promotees are not available as postulated by clauses 1 and 2 of item-10 of Annexure-A. The usual direct recruits coming under clause 1 was stated to be the personnel who were already recruited for the purpose of training for two years to be finally appointed to the post of Assistant Traffic Manager. So, it is evident that there are three channels of selections to the post of Assistant Traffic Managers and Assistant Mechanical Engineers.
They are :
(1) The personnel who were recruited in the earmarked vacancies and are under training for two years;
(2) promotees from lower feeder posts;
(3) if categories 1 and 2 are not available, then the person unconnected with the services and a stranger can be appointed by direct recruitment, for which considerations are different.
6. In the above case, the promotees were granted seniority from the respective dates of entry into service even though on temporary basis and the direct recruits were given their seniority from their respective dates of entry into service. The APSRTC has supported the plea of the promotees that even though on temporary basis and the direct recruits were given their seniority from their respective dates of entry into service. The APSRTC has supported the plea of the promotees that even though temporary as they were selected in view of the fact that direct recruitments were not made, that the entry into service is the criteria and not the date of confirmation or regularisation or later declaration of probation. Repelling the said contention, the learned single Judge held in favour of direct recruits holding that the promotees appointed in excess of the quota of theirs were holding the positions which were to be held by direct recruits and that they have to be pushed down. The same was confirmed by the Division Bench. While the learned single Judge relied upon the decisions rendered in S. G. Jayasingani v. Union of India (supra), B. S. Gupta v. Union of India (supra) and Bishan Sarup v. Union of India (supra), the Division Bench apart from the said three decisions had also railed upon P. C. Sethi v. Union of India (supra). In Krishna Murthy v. A.P.S.R.T.C. (supra), a Divisions Bench of this court while construing Regulations 30 and 34 of the APSRTC Employees (Recruitment) Regulations 1966 vis-a-vis Regulation 3 thereof, held that the promotee appointed on temporary basis cannot get seniority from the date of such an entry into the promotional post on temporary basis unless he was promoted unconditionally and without reservation. The said case also dealt with the promotions of Assistant Traffic Manager as the case in W.P. No. 5738/91. The facts of the said case are entirely different, as from the year 1971 onwards direct recruitment was resorted to and in view of that fact temporary promotion was given to the petitioner therein only on officiating basis, whereas in the instant case for almost a decade, direct recruitment was not resorted to, thereby deviating from the rule. The decision in V. D. Badami v. state Mysore (supra), has got no application to this case. In the said case, there is a specific rule that until the permanent recruitment is made, promotions can be effected only on temporary basis without accrual of right and for a specific period. Such a rule is absent in the instant case. It was held in Delhi W.S. & S. Disposal Committee v. R. K. Kashyap (supra) that where there was ad hoc appointments followed by regularisation of service, such persons should get their in the ad hoc appointment for determining seniority in the absence of any specific rule to the contrary and that if ad hoc appointment or temporary appointment is made without considering the claims of the seniors in the cadre, the service rendered in such appointment should not be counted for seniority in the cadre and that the length of service in ad hoc appointment or stop-gap arrangement made in the exigencies of service without considering the claims of all the eligible and suitable persons in the cadre ought not to be reckoned for the purpose of determining the seniority in the promotional cadre. To the same effect is the judgment in Keshav Chandra Joshi v. Union of India (supra). The decision in A. N. Sehgal v. Raje Ram Sheoran (supra) is not different from the above. In Badami’s case (supra) it was held that in working out quota rule, the principles which should be followed are (a) where rules prescribe quota between direct recruits and promotees, confirmation or substantive appointment can only be in respect of clear vacancies in the permanent strength of the cadre, (b) confirmed persons are senior to those who are officiating, (c) as between person appointed in officiating capacity, seniority is to be counted on the length of continuous service, (d) direct recruitment is possible only by competitive examination which is the prescribed procedure under the rules, (e) if promotions are made to the vacancies in excess of the promotion quota, the promotions may not be totally illegal, but would be irregular and the promotees can claim a right to hold the post whenever vacancies arise within their quota. It was further held that if the promotees occupy any vacancies which are within the quota of the direct recruits, when direct reequipment takes place the direct recruits will occupy the vacancies within their quota and promotees who were occupying the vacancies within the quota of direct recruits will either be reverted or they will be absorbed in the vacancies within their quota. Concisely speaking what was held was that so long as the quota rule remains, neither promotees can be allotted to any of the substantive vacancies of the quota of direct recruits nor direct recruits can be allotted to promotional vacancies. Holding so, the Supreme Court held that the direct recruitment vacancies occupied by promotees will not confer any right on the said promotees. The judgment in Badami’s case (supra) was followed in Sonal v. State of Karnataka (supra).
7. The contrary view which was taken in majority of the case was that if out of two channels of appointment to the posts i.e., promotions and direct recruitments, if the later was not reported to the promotions were affected and that promotees continued in the said promoted posts for a long time, their seniority should be reckoned from the date of their first entry into service even if they were termed as temporary at the first instance, provided their services were uninterrupted. This controversy went on the years to come. Some Benches of the Supreme Court taking a particular view as mentioned in paragraph (6) and other Benches striking a dissent. In N. K. Chauhan v. State of Gujarat (supra) it was held that the primary purpose of the quota system is to improve administrative efficiency, with the State in tune with the mandate of the rule imposed to make serious effort to secure hands to fill the quota of the direct recruits from the open market. But, if it does not succeed despite honest and serious effort, it qualifies for departure from there rule. It was further held that if it has become non-feasible, impracticable and procrastination to get the requisite quota of direct recruits, it was free to fill the posts by promotion of suitable hands if the filling up of vacancies was administratively necessary and could not wait. It was further held that direct recruitment ordinarily involves lengthy processing taking its won time and if such a situation is felt, it is not desirable to keep the seats indefinitely vacant even it the administrative exigencies warrant the same. In S. B. Patwardhan v. State of Maharashtra (supra), repelling the contention that promotees officiating as Deputy Engineers do not belong to Class II cadre, while direct recruits appointed on probation as Deputy Engineers enter Class II cadre from the very date of their appointment, the Supreme Court held that the person officiating as Deputy Engineers belong to Class-II cadre on par with the direct recruits as they constitute a single integrated cadre, they discharge identical functions, bear similar responsibilities and acquire equal amount of experience in their respective assignments. The Supreme Court had held that conferring the benefit of seniority to the direct recruits right from the date of their probation and denying the same to the promotees by conferring the seniority on the latter from the date of their confirmation which may be after several years of the direct recruitment, infracts the fundamental rights enshrined under Articles 14 and 16 of the Constitution of India. In G. S. Lamba v. Union of India (supra) it was held that even if there are two sources of recruitment i.e., promotions and direct recruitment with quota rota rule and if the promotions are made in excess of quota for years, because of no recruitment from the other sources for years and if the promotions were not made on ad hoc basis, in application of principle of rotation of vacancies while preparing seniority list will be violative of Articles 14 and 16. Holding so, the promotees even though recruited in excess of their quota were given promotions right from their entry into service.
8. In view of these divergent views expressed the matter was again referred to a Constitutional Bench which decided in Direct Recruit Class II Engg. Officer’s Association v. State of Maharashtra (supra). In the said case, the Supreme Court held the view taken by the earlier Supreme Court judgments in N. K. Chandan v. State of Gujarat (supra), S. B. Patwardhan v. State of Maharashtra (supra) and G. S. Lamba v. Union of India (supra). While affirming the view taken in Patwardhan’s case (supra) the above Constitutional Bench of the Supreme Court at paragraph-13 held as follows :
“When the case were taken up for hearing before us, it was faintly suggested that principle laid down in Patwardhan’s case was unsound and fit to be overruled, but no attempt was made to substantiate the plea. We ware taken through the judgment by the learned counsel for the parties more than once and we are in complete agreement with the ratio decidendi that the period of continuous officiation by a Government servant, after his appointment by following the rules applicable for substance appointments, has to be taken into account for determining his seniority; and seniority cannot be determined on the sole test of confirmation, for, as was pointed out, confirmation is one of the inglorious uncertainties of Government services depending neither on efficieny of the incumbent nor on the availability of substantive vacancies. The principles for deciding inter se seniority has to conform to the principles of equality spelt out by Articles 14 and 16. If an appointment is made by way of stop-gap arrangement, without considering the claims of all the eligible available persons and without following the rules of appointment, the experience on such appointment cannot be equated with the experience of a regular appointee, because of the qualitative difference in the appointment. To equate the two would be to treat two unequals as equal which would violate the equality clause. But, if the appointment is made after considering the claims of all eligible candidates and the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules made for regular substantive appointments, there is no reason to exclude the officiating service for purpose of seniority. Same will be the position if the initial appointment itself is made in accordance with the rules applicable to substantive appointments as in the present case. To hold otherwise will be discriminatory and arbitrary. This principle has been followed in innumerable case and has been further elaborated by this Court in several judgments including those in Baleshwar Dass v. State of U.P. and Delhi Water Supply and Sewage Disposal Committee v. R. K. Kashyap 1989-I-LLJ-1771, with which we are in agreement. In Narender Chadha v. Union of India , the officers were promoted although without following the procedure prescribed under the rules, but they continuously worked for long periods of nearly 15-20 years on the without being reverted. The period of their continuous officiation was directed to be counted for seniority as it was held that any other view would be arbitrary and violative of Articles 14 and 16. There is considerable force in this view also. We, therefore, confirm the principle of counting towards seniority the period of continuous officiation following an appointment made in accordance with the rules prescribed for regular substantive appointments in the service.”
The Supreme Court has repelled the contention that direct recruitees appointed in substantive vacancies against their quota form a different cadre than the officiating promotees. The Supreme Court also repelled the contention that even though direct recruits are not available in accordance with the quota rules and that appointments were not effected through direct recruitment for number of years, the promotees in excess of their quota and were holding the posts meant for direct recruits should go down the ranks conforming to the quota even after services of number of years and down below their junior-direct recruits. Considering several judgments, the above constitutional Bench of the Supreme Court has authoritatively laid down the principles contained at paragraph 44 of the said judgment, which are stated infra :
(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted.
(C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly.
(D) If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference irresistible is that the quota rule had broken down.
(E) Where the quota rule has broken down and the appointments are made from one sources 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.
(F) Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule.
(G) The quota for recruitment from the different sources may be prescribed by executive instructions if the rules are silent on the subject.
(H) If the quota rule is prescribed by an executive instruction and is not followed continuously for a number of years, the inference is that the executive instruction has ceased to remain operative.
(I) The posts held by the permanent Deputy Engineers as well as the officiating Deputy Engineers under the State of Maharashtra belonged to the single cadre of Deputy Engineers.
(J) The decision dealing with important questions concerning a particular service given after careful consideration should be respected rather than scrutinised for finding out any possible error. It is not in the interest of Service to unsettle a settled position.
9. The law stated in Keshav Chandra Joshi v. Union of India (supra) and Sehgal v. Rajream Sheoran (supra), is no way different than the above proposition and in fact the said judgments which are of not Constitution Bench, have followed the above authoritative pronouncement in Direct Recruit Class II Engg. Officer’s Association v. State of Maharashtra (supra). In the above judgment rendered by the Constitution Bench, the view taken in S. G. Jayasinghani v. Union of India (supra), Delhi W.S. & S. Disposal Committee v. R. K. Kashyap (supra), Sonal v. State of Karnataka (supra)., Bishan B. S. Gupta v. Union of India (supra), Bishan Sarup v. Union of India (supra) and P. C. Sethi v. Union of India (supra) was disapproved, while approving the statement of law made in N. K. Chauhan v. State of Gujarat (supra). S. B. Patwardhan v. State of Maharashtra (supra) and G. S. Lamba v. Union of India (supra). In view of the same, the judgments rendered in Writ Appeals Nos. 480, 485 and 492 of 1975 by a Division Bench of this court as also the judgment in Krishna Murthy v. A.P.S.R.T.C. (supra), is no longer a good law.
10. As the proposition of law on this controversial subject is settled authoritatively by the above judgments, let me now examine as to the applicability of the same to the facts of this case. As already stated in paragraph 4 supra, the eligibility of the petitioners for promotion to the post of Assistant Traffic Managers and Assistant Mechanical Engineers is not disputed and that after the statutory Regulations of 1966 came into force, direct recruitment was resorted to only six times and that for a period of 10 years from 1977 to 1986 practically there was no direct recruitment and as the petitioners were selected, though stating to be temporary, but subjecting them to regular selection process by duly maintaining the rule of seniority and the petitioners having rendered continuous and uninterrupted service since the dates of their respective promotions and such a long tenure cannot be deprived for reckoning seniority, the petitioners are entitled to reckon their seniority from the dates of their first entry into service into the said promotion posts of Assistant Traffic Managers and Assistant Mechanical Engineers and above the direct recruits who were recruited later than the petitioners. Otherwise there will be anomalies as are manifest from a look of the respective dates of entry into services vis-a-vis the petitioners and the direct recruits- respondents. By resorting to promotions it will be deemed that for the said period quota rule was given a go-bye resulting in its relaxation and as such even though the petitioners-promoters were recruited in excess of their quota of 50% their seniority should not be affected. The petitioners cannot be termed as ad hoc promotees or as officiating in the posts of promotion. They shall be deemed as working on regular basis. While the petitioners-Assistant Traffic Managers were promoted in between the years 1983 and 1987, the respondents 3 to 5 – direct recruits have entered into service only on July 12, 1988. While the petitioners-Assistant Mechanical Engineers were promoted to the said pots in between the years 1981 and 1985, the respondent-direct recruits entered into service much later, only a few in 1986 and mostly during the year 1988. The glaring anomalies are pointed out below :
Petitioner No. 6 Assistant Traffic Manager was appointed in the lower post on June 19, 1966, then was promoted to the next 3 higher posts during the years of 1968, 1970 and 1975 and to the post of Assistant Traffic Manager on August 8, 1979, while respondents 3 to 5 – direct recruits have entered the service as Assistant Traffic Managers only on July 12, 1988. While petitioner No. 3 Assistant Mechanical Engineer was appointed to the lower post on March 23, 1961 and then got 3 promotions to the next higher posts during the years 1963, 1968 and 1976 and to the post of Assistant Mechanical Engineer on July 27, 1981, whereas most of the respondents-direct recruits entered into service only during the year 1988. If this anomaly is not set right, it will lead to absurdities and serious infraction of fundamental right guaranteed under Article 14 of the constitution of India in general and Article 16 of the Constitution of India in particular. In this contest, the observations made by Justice D. A. Desai in A. Janardhana v. Union of India (1983-II-LLJ-175) are relevant for extraction. In the said case, the petitioner therein joined service during they year 1953 and though found his place in the seniority list prepared earlier, in the revised seniority list he did not find a place because of quota rule and was found surplus and could not find his berth in the seniority list. The facts as arising in the instant case are also present there. The Military Engineer Services Class I (Recruitment, Promotion and Seniority) Rules were brought into operation with effect from April 1, 1951 and recruitment to MES Class I could be made from two sources, one direct recruitment and another by promotion prescribing quota rule. The petitioner was a promotee in excess of quota, while the direct recruit who later came into service superseded him. The Supreme Court held as follows : (p. 184)
“Once the recruitment is legal and valid, there is no difference between the holders of permanent posts and temporary pots 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 v. State of Maharashtra 1971-SC AIR 2051 that there is no universal rule, either the a cadre cannot consist of both permanent and temporary employees or that it must consist of both …”
The Court further held as follows (p. 189) :
“Before we conclude this judgment, we will have qualm of conscience if we do to draw attention to a very unjust, unfair and inequitable situation having a demoralising effect on public services probably ensuring from certain rules framed by the Government and the decisions of this Court. Even where the recruitment to service is from more than one source and quota is fixed for each source yet more often the appointing authority to meet its exigencies of service exceeds the quota from the easily available source of promotees because the procedure for making recruitment from the market by direct recruitment is long prolix and time consuming. The government for exigencies of service, for needs of public services and for efficient administration, promotes persons easily available because in a hierarchical service one hopes to move upward. After the promotee is promoted, continuously renders service and is neither found wanting nor inefficient and is discharging his duty to the satisfaction of all a, fresh recruit from the market years after promotee was inducted in the service comes and challenges all the past recruitments made before he was born in service and some decisions especially the ratio in Jaisinghani’s case as interpreted in two B. S. Gupta’s case gives him an advantage to the extent of the promotee being preceded in seniority by direct recruit who enters service long after the promotee was promoted, When the promotee was promoted and was rendering service, the direct recruit may be a schoolian or college going boy. He emerges from the educational institution, appears at a competitive examination and starts challenging everything that had happened during the period when he has had nothing to do with service. A mandamus issued in Jaisinghani’s case led to a situation where promotees of the year 1962 had to yield place to direct recruits of 1966 and the position worsened thereafter. In the case in hand, appellant a promotee of Sept. 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 yeas and must have been studying in a primary school. Shorn of all service jurisprudence jargon let us 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 we fail to see what other inequitous approach would be more damaging”.
11. In view of what is stated supra, it is declared that the petitioners’ seniority in the cadre of Assistant Traffic Managers and Assistant Mechanical Engineers shall be reckoned from their first dates of entry into service and over and above the direct recruits-respondents. It is needless to mention that the petitioners shall be entitled to all attendant benefits such as fixation of their due seniority in accordance with the above declaration plus notional increments etc., including the future promotions, if any.
12. The Writ Petitions are allowed as indicated above. However, there shall be on order as to costs.