CASE NO.: Appeal (civil) 1384 of 2008 PETITIONER: AFHQ/ISOs SOs (DP) Association & Ors RESPONDENT: Union of India & Ors DATE OF JUDGMENT: 19/02/2008 BENCH: H. K. Sema & Altamas Kabir & Lokeshwar Singh Panta JUDGMENT:
J U D G M E N T
CIVIL APPEAL NO. 1384 OF 2008
[Arising out of S. L. P. (C) No.4545 of 2007]
WITH
CIVIL APPEAL NO. 1385 OF 2008
[Arising out of S. L. P. (C) No.5853 of 2007]
AFHQ Officers’ Association & Ors. …. Appellants
Versus
Union of India & Ors. ….. Respondents
Lokeshwar Singh Panta, J.
1. Leave granted.
2. The usual question as regards determination of inter se
seniority between Direct Recruits (DRs) and Departmental
Promotees (DPs) once again falls for consideration in these two
appeals by special leave, therefore, for the sake of
convenience, they are being heard and decided by this
common judgment.
3. These appeals are directed against the judgment and
order of the High Court of Delhi dated 14th November, 2006 in
C.W.P. No. 4058/2002; C.W.P. No. 4458/2002; C.W.P. No.
5396/2002 and C.W.P. No. 62/2003 and order dated 15th
January, 2007 in C.W.P. No. 18073/2005, whereby and
whereunder the order dated 1st April, 2002 in O.A. No.
1356/1997 (Smt.Ammini Rajan & Ors. v. Union of India & Ors.)
of the Central Administrative Tribunal, Principal Bench, New
Delhi, is set aside.
4. The Central Administrative Tribunal (hereinafter referred
to as “the Tribunal”) allowed the said O.A. filed by Smt.
Ammini Rajan & Ors. challenging the Select List of Assistants
for promotion to the grade of Assistant Civilian Staff Officers
(hereinafter referred to as “ACSOs”) and Armed Forces
Headquarters(AFHQ) Civil Services for the years 1977, 1978
and 1979 which was circulated vide letter dated 2nd July,
1996; the Select List for the year 1980 which was circulated
vide another letter dated 20.09.1996; the Select List for the
year 1981 circulated vide letter dated 20.11.1996 and also the
Select List of 1982 circulated vide letter dated 14.03.1997.
The applicants were also aggrieved by the consequential
Seniority List of ACSOs of AFHQ Civil Services prepared by the
Departmental Promotion Committee (for short “the DPC”) for
the years 1988-89 and 1989-90 respectively for promotion to
further grade of Civilian Staff Officers (CSOs). Based on the
revised Select List in the grade of ACSOs, the claim of the
applicants was that the Select List and the Seniority List for
promotion to the grade of CSOs were drawn in contravention
of the directions given by the Tribunal in TA No.356/1985 (CW
3/78) rendered in Shri M.G. Bansal & Ors. v. Union of India &
Ors. on 20th November, 1992 and also in violation of AFHQ
Civil Services Rules, 1968.
5. The Tribunal, on consideration of the entire material on
record, disposed of O.A. No. 1356 of 1997 (Smt. Ammini
Rajan’s case) with the following directions:-
(i) Impugned orders Annexure-A-1 and A-2
are quashed. The respondents are directed
to determine the seniority between the
direct recruits and promotees regularly
appointed/promoted within their
respective quota by counting the length of
continuous officiation in the grade of
ACSO from their respective appointment to
the substantive vacancies within their
quota in accordance with the Rule 16(7) of
the AFHQ Rules and Schedule III of the
Rules. In the case of promotees ACSO, the
length of continuous officiation in the
grade will be determined from the date
when they are promoted in substantive
vacancies in their lawful quota. In case of
direct recruits ACSO, their seniority shall
be determined from the year in which they
joined the service. While determining
seniority, respondents are directed to
adhere to the DPC year in case of promotee
officer and to retain as 1st October to 30th
of September of the following year as
provided in the rules/regulations.
(ii) Respondents are further directed to
prepare single Select List in a year for the
ACSO grade and they cannot report to two
separate lists for the purpose of merely
identifying the Note (2) Schedule III
vacancies as the rules do not envisage the
same.
(iii) Respondents are further directed that the
vacancies of DR quota may be carried
forward but while determining the
seniority the slots of the vacancies left
unfilled by the DR quota shall not be
carried forward for the purpose of
determining seniority.
(iv) It is further directed that after finalizing
the seniority list, the department shall
prepare eligibility lists for the purpose of
promotion to the next higher grade.
(v) These directions may be implemented
within a period of 6 months from the date
of receipt of a copy of this order. No costs.
6. Aggrieved by the order of the Tribunal, the AFHQ (DRs)
Civil Service Officers’ Association filed Writ Petition No. 4058
of 2002, the Union of India filed separate Writ Petition No.
5396/2002 and some of the Departmental Promotees ACSOs,
namely, Shri K.S. Dhingra and Smt. Ammini Rajan, filed W.P.
Nos. 4458/2002 and 62/2003 respectively, whereas AFHQ
Civil Services Officers filed C.W.P. No. 18073/2005 in the High
Court of Delhi. The Division Bench of the High Court allowed
the Writ Petition Nos. 4058/2002 and 5396/2002 by an order
dated 14.11.2006 and set aside the order dated 01.04.2002
recorded by the Tribunal in OA No. 1356/1997 with further
direction to the respondentUnion of India to determine the
issue of seniority in accordance with the judgment of the
Tribunal in TA No. 356/1985 dated 20th November, 1992.
C.W.P. No. 62/2003 and C.W.P. No. 4458/2002 filed by the
DPs were dismissed and CWP No.18073/2005 was disposed of
on 15.01.2007 on the basis of direction in the above-said writ
petitions. These appeals, therefore, arise from the said
judgments and orders of the High Court.
7. The case of the parties is that prior to the year 1968, the
AFHQ Civil Services were governed by the executive
instructions as there were no statutory rules governing the
service. On 1st March 1968, the Armed Forces Headquarters
Civil Service Rules, 1968 (hereinafter referred to as “the
Rules”) were framed, wherein the services are classified in the
following Grades:-
(a) Senior Administrative Grade
(b) Director
(c) Selection Grade (Senior Civil Staff Officer/Joint
Director)
(d) Civil Staff Officer/Deputy Director
(e) Assistant Civilian Staff Officer/Section Officer
(initially designated as Superintendent)
(f) Assistant
Rule 16 of the said Rules deals with the seniority, which
provides that the relative seniority of the direct recruit and
promotees shall be regulated in accordance with the
provisions made in this behalf in the Third Schedule. As per
the Third Schedule of the Rules, all temporary vacancies in the
grade of ACSO shall be filled by temporary promotion from
amongst the Assistants by the method of selection. The Third
Schedule further provides that substantive appointment to
75% of the substantive vacancies shall be made in order of
seniority of the temporary officers of the grade, who have
completed the period of probation subject to the rejection of
unfit. 25% of the substantive vacancies shall be filled up by
the direct recruit through Civil Service Examination conducted
by UPSC. As per Note (2) of Third Schedule, unfilled vacancies
of DR quota may be filled temporarily by promotion from
amongst Assistants by selection method.
8. Aggrieved by the Seniority List of 1977 published by the
Department, which was based on the principle of ante-dated
seniority in respect of ACSOs (DR), some of the ACSOs (DP)
filed Writ Petition No. 3/1978 titled as M.G. Bansal & Ors. v.
Union of India & Ors. in the High Court of Delhi inter alia
praying for the following reliefs:-
(a) Respondents have misapplied,
misconstrued and misinterpreted Rule 16(7) as
well as Third Schedule particularly Note (2),
which violates Articles 14 and 16 of the
Constitution of India.
(b) The Quota Rule has been applied
discriminately without having regard to the
approved service.
(c) When the direct recruits were inducted in
the service, they were placed above
departmental promotees who had been
promoted much earlier. The said placing in the
seniority list was done irrespective of the date of
appointment of the direct recruits and they
could not be positioned higher than the
Departmental Promotees.
9. After the constitution of the Central Administrative
Tribunal in the year 1985, the writ petition was transferred to
the Tribunal and was numbered as T.A. No. 356/1985. The
Tribunal by its order dated 2nd June, 1989 disposed of the said
petition holding that the quota prescribed in the Rules has not
broken down and the seniority between the direct recruits and
promotees regularly appointed/promoted within their
respective quota should be determined by the length of the
continuous officiation in the grade of ACSOs from their
respective appointment to the substantive vacancies under
Third Schedule.
10. It appears from the record that on 8th November 1989,
the Union of India and some DR Officers filed two Special
Leave Petitions before this Court against the order of the
Tribunal dated 2nd June 1989. This Court by its order dated
20th July 1991 held that the CAT had decided the controversy
without adverting to the Rules applicable to the service,
particularly Note (2) in the Third Schedule and the matter
must, therefore, be decided afresh. Pursuant to the order of
this Court, the CAT again decided M.G. Bansal’s case (supra)
by an order dated 20th November 1992 in the following
manner:-
“(a) It is held that Rule 16(7) and Schedule
Third so far as it relates to appointment of
the promotees and Direct Recruits in their
respective quota and determination of
seniority on the basis of quota and rota is
held valid and these are not ultra vires of
Articles 14 and 16 of the Constitution of
India.
(b) Seniority between Direct Recruits and
Promotees regularly appointed/promoted
within their respective quota should be
determined by the length of the continuous
officiation in the grade of ACSO from their
respective appointment to the substantive
vacancies under Schedule II within their
quota, i.e., in the case of promotee ACSOs
the length of continuous officiation in the
grade will be reckoned from the date when
they are promoted in substantive
vacancies.
(c) To elucidate further, in the case of
temporarily appointed promotee ACSOs
under Note (2) of Schedule III of the rules
in the direct recruit quota w.e.f. 1969
onwards till 1977 and also thereafter their
seniority will be reckoned from the date
when they get a berth in the substantive
vacancies of their 75% quota as envisaged
under Schedule III of the Rules.
(d) The incumbents belonging to one source in
excess of their own quota and utilizing the
quota of the incumbents belonging to
another source will only officiate in the
promoted post. It is made clear that the
direct recruits when inducted as nominees
of the UPSC, the promotees in the quota of
the direct recruits on the basis of Note (2)
of the Rules of Schedule III will either be
reverted or will be absorbed in the
vacancies within their quota of subsequent
year. The period of officiation outside their
quota of either of their incumbents from
other source will not count for their
seniority. If an officer has been promoted
within his quota, then it would be date of
confirmation which would be relevant for
the officer’s seniority.
(e) When the promotions are made from either
of the sources, by direct recruitment or by
departmental promotion there shall be
due compliance of the various instructions
and office memorandum issued by the
Department of Personnel and Training on
the reservation of vacancies for SC/ST and
categories in the proportion directed in
the said instruction. The reservation,
however, shall remain only at the time of
appointment and not in the seniority inter
se of the Direct Recruits and promotees
which shall be fixed as laid down in Rule
16(7) read with Schedule III and as
directed in the preceding sub-paras above.
(f) It is further directed that each quota, as
referred to in Schedule 3 of the Rules as to
be worked out independently on its own
force. Direct recruit quota of ACSO which
is confined to substantive vacancies in the
grade can be filled by temporarily
appointed Assistants by promotion in the
grade of ACSO, but without giving them
any right of seniority on the basis of
continuous officiation on the vacancies
earmarked for Direct Recruits and indent
for which has been sent to the UPSC for
nomination from the civil services
examination of a particular year. The
hopes and aspirations of the promotees
aforesaid cannot be related to availability
of Direct Recruits filling their quota in that
particular year and only it can be when
there is total collapse and break down of
the quota for a number of years.
(g) None of the parties including the official
respondents have given relevant data as to
when the actual promotion of Assistants
were made to the temporary cadre of ACSO
in the direct recruit quota under Note (2) of
Schedule 3 the official respondents on the
other hand have taken the stand in the
chart quote in the body of the judgment
that of such vacancies in the direct recruit
quota were left unfilled and have been
filled temporarily by the Assistant by
making departmental promotions and
since the exact number is not coming for
the and also the position whether such
departmental promotees were absorbed in
the subsequent vacancies within their
quota of 75% direct is issued to revise the
impugned seniority list in the light of the
observations made in the above sub-paras
which shall be made final after hearing the
objections on the same and the petitioners,
who have since retired, shall be entitled to
any consequential benefits occasioned on
account of the revision of the seniority list.
The impugned seniority list of 1977 shall
stand quashed to that extent. In the
circumstances, the parties shall bear their
own costs.”
11. The Union of India, in the garb of implementing the
above-said order of the Tribunal in the case of M.G. Bansal,
started splitting up vacancies from the year 1992 and
prepared two separate Select Lists for each year retrospectively
for the grade of ACSOs. One list was prepared in respect of
ACSO(DPs) who allegedly were temporarily appointed against
the unfilled vacancies meant for ACSO(DRs) as per Note (2) in
the Third Schedule on the basis of calendar year as against
originally drawn period from 1st October to 30th September
each year as provided in the Rules. It appears that prior to
the implementation of the order in M.G. Bansal’s case, draft
Seniority List issued in 1995 was based on the principle of
carrying forward of slots and ACSO(DRs) were being given
about 10 to 15 years ante-dated seniority even when they have
not been holding any office in the service. Some of the ACSO
(DPs), namely, Smt. Ammini Rajan and others filed O.A. No.
1356/1997 before the Central Administrative Tribunal
challenging the redrawn Select List for the years 1988-89 and
1989-90 in purported compliance with the directions of M.G.
Bansal’s case. The Tribunal by its order dated 1st April, 2002,
as noticed above, disposed of the said O.A. with the above-said
directions.
12. The AFHQ Civil Services (DR Gazetted) Officers’
Association and others filed O.A. No. 2484/2004 before the
Tribunal. The Tribunal by its order dated 1st September, 2005
dismissed the said application holding that there is no
illegality in the preparation of Seniority List. Some of the
ACSOs(DRs) filed C.W.P. No. 18073/2005 before the High
Court of Delhi challenging the order of the Tribunal dated 1st
September, 2005 which was also allowed by the High Court
along with the above-mentioned writ petitions.
13. We have heard the learned counsel for the parties, Shri
R. Tanwar, President, AFHQ Civilian Officers’ Association and
other parties in-person.
14. Mr. Paramjit Singh Patwalia, learned senior Advocate
appearing on behalf of the appellant- AFHQ/ISOs SOs (DP)
Association contended that the Division Bench of the High
Court has lost sight of the fact that Rules 16(6) and 16(7) do
not provide carrying forward of slots, which were examined in
detail by the Central Administrative Tribunal in M.G. Bansal’s
case. On the basis of the interpretation of the said Rules, the
CAT had fixed the seniority of DR and DP ACSOs based on the
length of continuous officiation and the High Court could not
have reversed the judgment of M.G. Bansal’s case which had
attained finality after the dismissal of the SLP by the Hon’ble
Supreme Court. He next contended that in the Smt. Ammini
Rajan’s case, the main claim was only for the implementation
of the order recorded by the CAT in M.G. Bansal’s case and
other reliefs were ancillary in substance. According to the
learned counsel, one of the main issues agitated in the case of
M.G.Bansal was that DR ACSOs, who joined later in point of
time, were made seniors to the promotees ACSOs, who were
regularly promoted earlier to the DR ACSOs. The situation
had occurred due to the assignment of antedated seniority,
i.e., giving seniority from the date of occurrence of vacancy to
DR ACSOs and as the Central Government has wrongly
implemented the observations contained in para 25(b) of M.G.
Bansal’s case, which resulted in filing of the petition by Smt.
Ammini Rajan and other DR ACSOs, which came to be decided
by the CAT in favour of Smt. Ammini Rajan and others, relying
upon the judgment of the CAT in M.G. Bansal’s case. He also
contended that if the vacant slots of DR vacancies are carried
forward, as directed in the impugned judgments of the High
Court, the direct recruits will get an undue advantage of more
than 12 years of ante-dated seniority without holding the
office. He next submitted that the fundamental principle of
determination of seniority between direct recruits and
promotees regularly appointed/promoted within their
respective quota should be determined by the length of
continuous officiation in the grade of ACSOs from their
respective appointment to the substantive vacancies under
Third Schedule of the Rules within their quota and the
impugned judgment of the High Court observing in paras 13
and 16 to carry forward vacant slots of direct recruits is
conflicting with the final judgment of the CAT rendered in M.G.
Bansal’s case which has directed the fixation of seniority
based on length of continuous officiation of direct recruits and
promotees.
15. Mr. L.N. Rao, learned senior Advocate, resisting the
aforesaid submissions, argued that the judgment of the High
Court cannot be found faulty on any ground and the seniority
inter se between the direct recruits and departmental
promotees has to be determined in the ratio as prescribed in
the Third Schedule of the Rules, which deals with the
substantive vacancies without giving any benefit of length of
the continuous officiation in the grade of ACSOs from the
respective appointment to the substantive vacancies under
Schedule Three to the Rules within their quota.
16. Mr. Rakesh Khanna, learned senior Advocate appearing
on behalf of the respondents-AFHQ Civilian Officers’
Association and Mr. P. Vishwanath Shetty, learned senior
Advocate appearing on behalf of the Union of India, have
sought to support the judgment of the High Court and
contended that the promotees ACSOs appointed under Note (2)
of the Third Schedule cannot get the benefit of continuous
officiation in the grade of ACSOs. They also submitted that
the seniority of promotees among themselves was determined
under Rule 16(5), i.e. in the order in which they were
appointed in substantive vacancies in their quota and the inter
se seniority of the DRs among themselves was determined as
per the Rule 16(6) in the order of merit in which they were
placed in the competitive examination. According to the
learned counsel, the actual date of joining in the post had no
bearing on fixation of seniority among the promotees and
direct recruits themselves and inter se seniority of DRs and
DPs appointed against the substantive vacancies in their own
quota was determined on the basis of rotation of vacancies
between DRs and DPs in the ratio of 75% : 25% without
allowing lapsing of vacancies either from DRs or DPs quota.
17. In support of the respective contentions, the learned
counsel for the parties have relied upon certain decisions of
this Court, which we shall deal and consider in the later part
of the judgment.
18. After a perusal of the facts involved here and having
heard the parties at length, we feel that the issues that need to
be addressed by us in this case are:-
(i) Whether seniority between Direct Recruits and Promotees
regularly appointed/promoted within their respective quota
should be determined by the length of the continuous
officiation in the grade of ACSO from their respective
appointment to the substantive vacancies under Schedule II of
the Rules within their quota, i.e., in the case of promotee
ACSOs the length of continuous officiation in the grade will be
reckoned from the date when they are promoted in substantive
vacancies in their quota.
(ii) Whether the incumbents belonging to one source in excess
of their own quota and utilizing the quota of the incumbents
belonging to another source will only officiate in the promoted
post. The direct recruits when inducted in service through
selection by the UPSC, the promotees in the quota of the direct
recruits on the basis of Note (2) of the Rules of Schedule III will
either be reverted or will be absorbed in the vacancies within
their quota of subsequent year and the period of officiation
outside their quota of either of the incumbents from other
source will not count for their seniority.
19. For the purpose of determination of the above-said
points, we may notice the relevant Rules.
Rule 13 deals with probation, which states that (1) Every
direct recruit shall initially be appointed on probation for two
years from the date of appointment and (2) Every person other
than a direct recruit shall, when appointed to the grade of
CSO, ACSO and Assistant, be on probation for a period of two
years from the date of such appointment. Rule 14 deals with
confirmation of probationers. The quota between the direct
recruits and the promotees is governed by Rule 16, which
reads as under:-
“16. Seniority:- (1) All permanent offices
included in the initial constitution of a
Grade under Rule 9 shall rank senior to all
persons substantively appointed to that
Grade with effect from any date after the
appointed day, and all temporary officers
included in the initial constitution of a
grade under that rule shall rank senior to
all temporary officers appointed to that
Grade with effect from any date after the
appointed day.
(2) The seniority inter se of permanent
officers included in the initial constitution
of a Grade shall be regulated in the order
in which they are so appointed.
(3) The seniority inter se of temporary
officers included in the initial constitution
of a Grade shall be regulated in the order
in which they are so appointed.
(4) The seniority inter se of officers
regularly appointed to the grade of Joint
Director and Senior Civilian Staff Officer
before the coming into force of the Armed
Forces Headquarters Civil Service (Second
Amendment) Rules, 1975, shall be
regulated in the Selection Grade of the
Service in the following order:-
(a) Officers holding the posts of
Joint Directors in an officiating
capacity, arranged in the order of
their seniority in that Grade;
(b) Officers holding the posts of
Senior Civilian Staff Officers in a
substantive capacity, arranged in
the order of their seniority in that
Grade;
(c) Officers holding the posts of
Senior Civilian Staff Officers in an
officiating capacity, arranged in the
order of their seniority in that
Grade;
(5) Except as provided, in sub-rule (7), the
seniority of persons appointed to any grade
after the appointed day shall be
determined in the following manner,
namely:-
(i) Permanent Officers.- The
seniority inter se of officers
substantively appointed to the
Grade after the appointed day shall
be regulated in the order in which
they are so appointed;
(ii) Temporary Officers.- The
seniority inter se of temporary
officers appointed to the Grade
after the appointed day shall be
regulated in the order of their
selection for such promotion.
(6) Direct recruits shall be ranked inter se
in the order of merit in which they are
placed at a competitive examination on the
results of which they are recruited, the
recruits of an earlier examination being
ranked senior to those of a later
examination. On confirmation, their inter
se seniority shall be regulated in the order
in which they are so confirmed :
Provided that the seniority of persons
recruited through the competitive
examinations held by the Commission
(i) in whose case offers of
appointment are revived after
being cancelled, or
(ii) who are not initially
appointed for valid reasons but are
appointed after the appointment of
candidates recruited on the basis
of the results of the subsequent
examination or examinations,
shall be such as may be determined by the
Government in consultation with the
Commission.
(7) The relative seniority of the direct
recruits to a Grade and persons appointed
to the Grade by departmental promotion
shall be regulated in accordance with the
provisions made in this behalf in the Third
Schedule.
(8) All officers substantively appointed to
any Grade shall rank senior to those
holding temporary or officiating
appointments in that Grade.
20. Rule 2(p) defines “temporary officer” to mean a person
holding a temporary or officiating appointment in that Grade
on the basis of his being regularly approved for such
appointment. Rule 2(l) defines “permanent officer” to mean a
person who has been substantively appointed to a substantive
vacancy in that grade. Rule 10 provides for future
maintenance of the service which states that the service shall
be maintained in future as indicated in the Third Schedule.
Third Schedule of the Rules in relation to ACSO (Group ‘B’
Gazetted) reads as under:-
“Substantive vacancies
(a) Substantive appointments to 75% of
substantive vacancies in the Grade shall
be made in the order of seniority of
temporary officers of the Grade, who have
completed the period of probation
satisfactorily, subject to the rejection of
the unfit.
(b) 25% of the substantive vacancies
shall be filled by direct recruitment on
the basis of combined competitive
examination held by the Commission for
recruitment to the Central Services,
Group ‘A’/Group ‘B’, Assistant Civilian
Staff Officers so recruited shall be
confirmed in the manner as indicated in
Rule 14.
The relative seniority of the above
categories of officers shall be determined
according to the rotation of vacancies
between departmental promotees and
direct recruits which shall be based on
the quotas of vacancies reserved for
promotion and direct recruitment.
Note (1) Reservation of vacancies
against the quota reserved for direct
recruitment, for Scheduled Castes and
Scheduled Tribes and released
Emergency Commissioned Officers and
Short Service Regular Commissioned
Officers shall be in accordance with the
rules and orders issued by the
Government from time to time.
(2) Substantive vacancies at (b) may be
filled temporarily by promotion from
amongst Assistants on the basis of
selection. Such promotions shall be
terminated when the nominees of the
Commission become available to fill
the substantive vacancies.”
Temporary Vacancies
Temporary vacancies in the Grade of
Assistant Civilian Staff Officer shall be filled
by temporary promotion from amongst
Assistants on the basis of selection.
Provided that if any person in the Grade of
Assistants is considered for promotion to
the Grade of Assistant Civilian Staff Officer,
all persons belonging to Scheduled Castes
or Scheduled Tribes who are senior to him
in that Grade, shall also be considered
notwithstanding that they may not have
rendered five years’ continuous approved
service in that grade.
21. On a plain reading of the above-extracted provisions of
Third Schedule, it is clear that substantive vacancies to the
extent of 75% shall be made in the order of seniority of
temporary officers of the Grade, who have completed the
period of probation successfully and 25% of the substantive
vacancies shall be filled by direct recruitment on the basis of
qualifying Combined Competitive Examination held by the
Commission for recruitment to the Central Services, Group ‘A’
/Group ‘B’. The relative seniority of the above categories of
officers shall be determined according to the rotation of
vacancies between departmental promotees appointed to the
substantive posts and direct recruits which shall be based on
the quota of vacancies reserved for each source. Note (2)
under the Third Schedule of the Rules provides that
“substantive vacancies” meant for direct recruits may be filled
temporarily by promotion from amongst Assistants on the
basis of selection, but such promotions shall be terminated
when the nominees of the Commission become available to fill
the substantive vacancies in 25% quota.
22. In the teeth of the relevant Rules governing the relative
seniority inter se between DRs and DPs under Rule 16 and
substantive appointments of ACSOs in the ratio of 75% under
clause (a) and appointments of direct recruits to the Central
Services Group ‘A’ / Group ‘B’ in the ratio of 25% as provided
in clause (b), the seniority list is required to be maintained by
the authority.
23. The seniority list of 1977 circulated by the respondent-
Union of India inter se the DRs and DPs was under challenge
before the Central Administrative Tribunal, Principal Bench,
New Delhi, in T.A. No.356/85 (C.W. 3/78) titled Shri M.G.
Bansal & Ors. v. Union of India & Ors., which was decided on
20.11.1992. In the said petition, Union of India had
submitted a Tabular Statement showing details of substantive
vacancies in the grade of Assistant Civilian Staff Officers and
from the perusal of the Chart, the Tribunal observed that
every time the vacancies were calculated and a requisition was
sent to the UPSC for sending nominees for appointment as
direct recruits in the ratio 15% SC, 7.5% ST and 25%
released emergency commission officers of the total number of
vacancies. The Tribunal has found that all the direct recruits,
who were nominated by the UPSC, did not join in that
particular year. Before the Tribunal, the case of the
Interveners was that the quota has lapsed and cannot be
carried forward, whereas the case of the direct recruits was
that the quota rule had broken down as direct recruitments
had not been made for many years and on account of such
failure, fixation of seniority with reference to the rotational
method was not available to be followed. The Tribunal, on
perusal of the Chart made available to it by the Union of India,
observed that since 1969 till 1977 in each of the year, direct
recruits have joined the service, though in lesser number. In
1969, 10 direct recruits joined against the quota of 32; in
1970, 3 direct recruits joined against 13 vacancies; whereas in
the year 1971, 11 direct recruits joined against 16 vacancies,
whereas in the year 1972, 16 direct recruits joined against 9
vacancies and in the year 1973, 8 direct recruits joined
against 19 vacancies. Similarly, in the year 1974, against 20
vacancies only 13 direct recruits joined the service; in 1975,
29 direct recruits joined against 19 vacancies; in 1976, 17
direct recruits joined against 25 vacancies and in the year
1977, 23 direct recruits joined against 14 vacancies. Thus,
there was a shortfall of direct recruits in joining the service in
their quota excepting in the years 1972 and 1975 where
persons in excess have joined than the earmarked quota as
per the rules. It was a specific case of the DPs before the
Tribunal that no substantive/temporary vacancy was kept
unfilled and these were filled by promoting Assistants on
officiation temporary basis in accordance with the provisions
of the Rules. Thus, there has been no break down of the
quota. The quota also to some extent was not filled up to the
extent it was desired though UPSC has recommended
sufficient number of direct recruits, but because of certain
facts, all of them did not join for the reasons best known to
them. The record would also show that the Union of India
have carried forward the unfilled vacancies of direct recruits to
the next year. The Chart would further show that in the year
between 1968 and 1974, the direct recruits vacancies were 87
in the ratio of 25% in terms of the rules and the vacancies
intimated to UPSC were 132. The UPSC nominated 126
candidates, but 48 candidates actually joined the service.
Thus, taking all these facts into account, the Tribunal has
rightly observed that there cannot be a case where the quota
has broken down; rather this is a case of distortion of the
quota. Note (2) to the Third Schedule referred to above
mandates that substantive vacancies at (b) may be filled
temporarily by promotion from amongst Assistants on the
basis of selection. Such promotion shall be terminated when
the nominees of the Commission would become available to fill
the substantive vacancy. In the AFHQ Civil Service,
promotions were made against direct recruit vacancies after
the vacancies had been notified to the Public Commission.
The promotions were temporary and the promotees were given
seniority in accordance with Rule 16.5(ii) and after completing
their probation, they were confirmed only when substantive
vacancies were found available in their quota. The inter se
seniority was, therefore, only between substantive vacancy
promotees and substantive direct recruits. All promotee
substantive ACSOs were assigned seniority under Rule 16(1),
whereas all direct recruits were assigned seniority under Rule
16.6. Thereafter, these two seniority lists of substantive
officers from the two sources of recruitment are integrated
under Rule 16.7, i.e. in accordance with the well-known
principle of quota rota rule. Thus, it is evident that the late
induction of the direct recruits does not interfere with the
seniority of the promotee officers under Rule 16.5.
24. Further, Note (2) to the Third Schedule is to be read with
Rule 11.1 of the Rules and the Regulations made thereunder
so that substantive vacancies shall be intimated to UPSC well
within time. Note (2) is an enabling provision insofar as it
permits the Government to fill the vacancies temporarily
through selection. There is a mandate in Note (2) that these
promotions will be terminated when the direct recruits would
join the post. Thus, by the time the direct recruit had come or
is likely to come, such a promotee who happens to occupy a
berth of the direct recruit by virtue of Note (2) to Schedule
Third will normally, because of his seniority, get a berth in his
own quota. The order of the Tribunal shows that the
applicants and the interveners, however, could not furnish any
data to show that the promotees, who are occupying the berth
of direct recruits under Note (2) temporarily, were
subsequently got adjusted in the prescribed quota of
departmental promotees against the substantive vacancies.
On perusal, we find that no time-limit is prescribed in Note (2)
during which such temporarily promoted Assistants to the
grade of ACSOs in the quota of direct recruits can enjoy that
benefit. Note (2) only provides that whenever direct recruits
become available, the appointment of such promotees shall
stand terminated. No other interpretation of Note (2) can be
possible. Note (2) to the Third Schedule safeguards the
interest of the direct recruits, who though are successful in
the Civil Service Examination conducted by the UPSC and yet
are waiting for their appointment as the appointment of the
direct recruits is bound to take some time. Merely because
there is late arrival of direct recruits, the quota reserved for
them cannot be taken as lapsed nor can it be taken to have led
to break down of the quota rule. The relevant rules, as
referred to above, clearly envisage that the continuous
officiation in a service without break also gives the benefit of
seniority, but in a case where the recruitment is from two
sources and the quota is prescribed, then the person from one
source cannot take the benefit available to the other source
within the quota. Thus, promotees who have been promoted
within their quota of 75% under the rules as prescribed under
Third Schedule read with Rule 16(7) of the Rules would get
the benefit of continuous officiation from the date of their
substantive appointment to the grade of availability of a
substantive post and after having worked on temporary basis
in the grade. Those who have been appointed temporarily
under Note (2) from the cadre of Assistants to the grade of
Assistant Civilian Officers temporarily, would not get the
benefit of their continuous officiation and shall be liable by
operation of law to be reverted or there shall be deemed
reversion when the nominees from the UPSC would join on the
recommendations of the UPSC. Such temporary officers may
not actually face reversion because by the time the vacancies
of the next year may become available in their quota of 75%
and they can very well, by virtue of their seniority, earn the
benefit of substantive appointment under the Third Schedule.
25. Now, coming to the issue whether the High Court was
justified in granting relief to DRs Association in CWP No.4058
of 2002 and Union of India v. Smt. Ammini Rajan & Ors. in Writ
Petition (C) No.5396 of 2002 by overlooking and not properly
appreciating the substance of the order recorded by the CAT in
Shri M.G. Bansal’s case. The High Court, by its impugned
order dated 14.11.2006, has held that the order of the Central
Administrative Tribunal in Smt.Ammini Rajan’s case is
contrary to its earlier decision dated 20.11.1992 passed in
M.G. Bansal’s case. The High Court directed the issue of
seniority to be determined as it was done prior to Smt. Ammini
Rajan’s case was decided by the Tribunal. The High Court
further held that the direction of the CAT where it is held that
the seniority of DRs should be determined from the date of
joining and further that the unfilled vacancies and not the
slots can be carried forward, is contradictory to the decision of
the CAT in M.G. Bansal’s case. We are afraid to agree with the
reasoning of the High Court. If such reasoning of the High
Court is accepted, the consequences would be that the draft
seniority list of ACSOs would be taken as it stood on
01.05.1995, which was challenged before the Tribunal in O.A.
filed by Smt. Ammini Rajan and others as the draft seniority list
was not settled in terms of the decision of the CAT in M.G.
Bansal’s case, which admittedly has attained finality. The
judgment of the High Court setting aside the order of the
Tribunal in Smt. Ammini Rajan’s case would plainly amount to
interference with the decision of the CAT in M.G. Bansal’s case
and further if the order of the High Court is given effect to, the
result thereof would be that the DRs. shall be permitted to
take advantage of more than 12 years of ante-dated seniority
without holding an office. The petition filed by Smt. Ammini
Rajan was primarily seeking implementation of the earlier
decision of the CAT in Shri M.G. Bansal’s case. On bare
examination of the decision of the CAT rendered in Smt.
Ammini Rajan’ case, we find no discrepancy, no contradiction
or overlapping or inconsistency whatsoever in the said order
as compared to the earlier decision of the CAT in Shri M.G.
Bansal’s case. Therefore, the order of the High Court, in our
view, is erroneous as the High Court has committed an error
in understanding and appreciating the gist of the order
recorded by the CAT in Smt. Ammini Rajan’s case.
26. Mr. Paramjit Singh Patwalia, learned senior Advocate
appearing on behalf of the appellant-AFHQ/ISOs SOs (DP)
Association, in support of his submissions, placed reliance
upon the case of Suraj Prakash Gupta & Ors. v. State of J & K
& Ors. [(2000) 7 SCC 561]. In the said case, this Court while
dealing with a situation of giving direct recruitment
appointment ante-dated from the date of occurrence of a
vacancy in the direct recruitment quota, even if on that date
the said person was not directly recruited. The Court, in
answer to Point No.4, held as under:
“Point 4
Direct recruits cannot claim appointment
from date of vacancy in quota before their
selection
80. We have next to refer to one other
contention raised by the respondent
direct recruits. They claimed that the
direct recruitment appointment can be
ante-dated from the date of occurrence of
a vacancy in the direct recruitment
quota, even if on that date the said
person was not directly recruited. It was
submitted that if the promotees occupied
the quota belonging to direct recruits
they had to be pushed down, whenever
direct recruitment was made. Once they
were so pushed down, even if the direct
recruit came later, he should be put in
the direct recruit slot from the date on
which such a slot was available under the
direct recruitment quota.
81. This contention, in our view, cannot
be accepted. The reason as to why this
argument is wrong is that in service
jurisprudence, a direct recruit can claim
seniority only from the date of his regular
appointment. He cannot claim seniority
from a date when he was not borne in the
service. This principle is well settled. In
N.K. Chauhan v. State of Gujarat 14 (SCC
at p. 325, para 32) Krishna Iyer, J.
stated:
Later direct recruits cannot claim
deemed dates of appointment for
seniority with effect from the time
when direct recruitment vacancy
arose. Seniority will depend upon
length of service.
Again, in A. Janardhana v. Union of India
25 it was held that a later direct recruit
cannot claim seniority from a date before
his birth in the service or when he was in
school or college. Similarly it was pointed
out in A.N. Pathak v. Secy. to the Govt.
(SCC at p. 767) that slots cannot be kept
reserved for direct recruits for
retrospective appointments.”
27. In State of Uttaranchal & Anr. v. Dinesh Kumar Sharma
[(2007) 1 SCC 683], this Court has clearly held that the
seniority is to be reckoned not from the date when the vacancy
arose, but from the date on which the appointment is made to
the post.
28. In M. Subba Reddy & Anr., etc. v. A. P. State Road
Transport Corporation & Ors. [(2004) 6 SCC 729], relied upon
by Mr. L. N. Rao, learned senior Advocate appearing on behalf
of AFHQ Civil Service (Direct Recruits-Gazetted) Officers’
Association, this Court while dealing with inter se seniority
between direct recruits and promotees to the posts of
Assistant Traffic Manager (for short “ATM”) and Assistant
Mechanical Engineer (for short “AME”) in A.P. State Road
Transport Corporation, held that rota rule is inbuilt in the
quota prescribed in Item 3, Annexure ‘A’ (Section B) to A.P.
SRTC Employees (Recruitment) Regulations, 1966 and could
not be deviated from. In that case, the appellant promotees
were promoted to the posts of ATMs/AMEs temporarily under
Regulation 30 as there were no direct recruits available. They
were promoted subject to being reverted to substantive posts
on approved candidates becoming available. Regulation 34(6)
states that the revertees shall subsequently be considered for
repromotion against the quota of vacancies reserved for
promotees. Therefore, one has to read Regulation 3 of the A.P.
SRTC Employees (Service) Regulations, 1964 with Regulations
30 and 34 of the Recruitment Regulations. It is only when
such revertees are repromoted as per Regulation 34, they can
be deemed to have been appointed to the posts of ATM or
AME. Therefore, when the appellants were tentatively
appointed to the post of ATMs/AMEs originally for want of
direct recruits and to the posts reserved for direct recruits, it
cannot be said that they were first appointed to that category
within the meaning of Regulation 3 of the Service Regulations.
Therefore, seniority had to be fixed between the direct recruits
and the promotees strictly in accordance with the quota
provided for in Item 3 of Annexure ‘A’ (Section B). The said
Regulations prescribe a quota of 1:1, which leads to rota for
confirmation. The contention of the appellants before this
Court was that they had a right to be promoted within their
quota during the years 1981 to 1987, when vacancies for
promotees’ quota became available. M. Subba Reddy,
appellant in that case, was regularized from 27.12.1986 vide
order dated 9.9.1988, when no direct recruits were available
and, therefore, it was improper for the Corporation to place
direct recruits above the promotees. The appellant submitted
that in such a case the quota in Item 3(1) of Annexure ‘A’ to
the Recruitment Rules would not apply; that the said item
prescribed only quota and not rota for seniority and that the
direct recruits could not claim appointment from the date of
vacancy in their quota before their selecton. They added that
seniority was dealt with only by Regulation 3 of the Service
Regulations, 1964 and not by Regulation 34 of the
Recruitment Regulations, 1966. That in view of the 15.9.1995
amendment, Regulation 34 referred to only allocation of
vacancy and not for determination of seniority. A total ban for
direct recruitment was imposed by the State from the year
1977 to 1988 and, thus, the purported quota-and-rota rule
contained in Item 3 of Annexure ‘A’ could not have been given
effect to. The majority view of this Court was that where there
is inaction on the part of the Government or employer or
imposed ban on direct recruitment in filling up the posts
meant for direct recruits, it cannot be held that the quota has
broken down. We, with respect, do not support the view of the
learned Judges that in the facts and circumstances of the case
the quota has not broken down because of inaction on the
part of the Government in imposing ban in filling up the posts
meant for direct recruits. The appellants in the said case were
promoted in a regular manner having been regularized in
service with retrospective effect. Their services were not
regularized from the date of their initial ad hoc promotion but
with effect from the date when the vacancies became available.
Their services after regularization would not be by way of a
stop-gap arrangement. The direct recruits who were appointed
in the years 1990 and 1991, in terms of Item 3 of Annexure ‘A’
would be considered to have been appointed only after their
successful completion of training. They were borne in the
cadre in the years 1990-91 and, thus, prior thereto they
cannot claim seniority. The learned third Judge, dissenting
with the learned two Judges, has held that the direct recruit
can claim seniority from the date of his regular appointment,
he cannot claim seniority from a date when he was not borne
in the service. Thus, the direct recruits of 1990 and 1991, by
reason of the impugned seniority list, could not have been
placed over and above the appellants-promotees because the
purported quota and rota rule contained in Item 3 of Annexure
‘A’ could not have been given effect to because the State
Government had imposed total ban for direct recruitment from
the year 1977 to 1988. In such a situation, the said quota
rule became inoperative. We agree with the dissenting view of
the learned Judge that in the facts of the case, the quota rule
became inoperative because the direct recruits were borne in
the cadre when they were appointed against the vacancies
meant for them. Therefore, the majority view in M. Subba
Reddy & Anr., etc. (supra) is of no assistance to the AFHQ Civil
Service (Direct Recruits) Officers Association as the relative
seniority between the direct recruits and regularly appointed/
promoted candidates within their respective quota, in the
present case, shall be determined by the length of the
continuous officiation in the grade of ACSO from their
respective appointment to the substantive vacancies in terms
of Schedule Third within their quota as held by the CAT in
M.G. Bansal’s case, which has attained finality after dismissal
of the SLPs filed against the said order of the Tribunal.
29. Mr. Rakesh Khanna, learned senior Advocate appearing
on behalf of some of the respondents, in support of his
submissions, has placed reliance upon the case of O.P. Singla
& Anr., etc. v. Union of India & Ors. [(1984) 4 SCC 450] inter
alia contending that for determining an equitable rule of
seniority between direct recruits and promotees, attempt must
be made to minimise, as far as possible, the inequities and
disparities in terms of the rota-quota rule which has broken
down in this case. In the said case, this Court has held that
the seniority of DRs and Promotees appointed under the
relevant rules must be determined according to the dates of
which direct recruits were appointed to their respective posts
and the dates from which the promotees have been officiating
continuously either in temporary posts created in the service
or in substantive vacancies to which they were appointed in a
temporary capacity. The said decision, in our view, is of no
assistance to the contesting parties represented by Mr. Rakesh
Khanna, learned senior counsel, in the facts and
circumstances of the present cases.
30. In Arvinder Singh Bains v. State of Punjab & Ors. [(2006)
6 SCC 673], relied upon by Mr. Siddarth Dave, Advocate, the
issue before this Court related to the inter-relation between
Rules 18 and 21 of the Punjab Civil Services (Executive
Branch) (Class I) Rules, 1976. On consideration of the factual
situation of the case and the rules governing the services of
the employees, this Court said that rota and quota must
necessarily be reflected in the seniority list and any seniority
list prepared in violation of rota and quota is bound to be
negated. The Court found in the said case that the action of
the respondents in determining the seniority is clearly in total
disregard of rota-quota rule prescribed in Rule 18 of the 1976
Rules and, therefore, writ of mandamus was issued to the
respondents directing them to prepare the seniority list of the
appellants who belong to the PCS (EB) in accordance with
Rule 18 and read with Rule 21 of the 1976 Rules by fixing
seniority according to the roster prescribed under Rule 18 of
the 1976 Rules.
31. In Gonal Bihimappa v. State of Karnataka & Ors. [1987
Suppl. 207] relied upon by Mr. P. Vishwanath Shetty, learned
senior Advocate appearing on behalf of the Union of India, this
Court held that the quota rules has to be strictly enforced and
it is not open to the authorities to meddle with it on the
ground of administrative exigencies. Further, in that case the
scheme in force relating to the services for fixing inter se
seniority took into account the filling up of the vacancies in
the service from the two sources on the basis of the quota and
fixation of inter se seniority in the gradation list has to be
worked out on the basis of quota. There cannot be any doubt
or quarrel to the well-settled law that inter se seniority
between direct recruits and promotees should be fixed on the
basis of quota-and-rota rule/instructions governing the service
conditions of the employees.
32. In the light of the above factual situation, service rules
governing the conditions of service of employees and the
settled proposition of law, we are of the opinion that the
judgment and order dated 14.11.2006 in C.W.P.
No.4058/2002, CWP No.5396/2002 and subsequent judgment
dated 15.01.2007 in CWP No.18073/2005 of the High Court of
Delhi passed in AFHQ Civil Service Officers Association v.
Union of India & Ors. are not sustainable and deserve to be set
aside to the extent of setting aside the order of the Tribunal in
Smt. Ammini Rajan’s case holding that the said order is
contrary to the earlier judgment of the CAT dated 20.11.1992
recorded in M.G. Bansal’s case. This view of the High Court
apparently appears to be contrary and contradictory to the
judgment and order of the CAT dated 20.11.1992 passed in
T.A. No.356/1985 (CW 3/1978) titled Shri M.G. Bansal & Ors.
v. Union of India & Ors. in which the impugned seniority list of
1977 stood quashed and the respondent(s)-authority were
directed to implement the said judgment in terms of the
observations/directions contained in paragraph 25 of the said
judgment. The judgment of the CAT in M.G. Bansal’s case has
attained finality when two SLPs filed by the DRs against the
said judgment came to be dismissed by this Court on
20.01.1995. Consequently, the Writ Petition CWP
No.4058/2002 of the AFHQ Civil Service (Direct Recruits-
Gazetted) Officers’ Association and CWP No.5396/2002
preferred by Union of India against the order of the CAT in OA
No.1356/1997 titled Smt. Ammini Rajan & Ors. v. Union of
India & Ors. are dismissed. CWP No.62/2003 and CWP
No.4458/2002 filed by the DPs shall stand allowed
accordingly. CWP No.18073/2005 shall also stand disposed of
in terms of this judgment. As the dispute and controversy
relating to inter se seniority between the DPs and DRs has
remained unsettled and is lingering over the past many years,
the respondent-authority is directed to determine and settle
the seniority list in strict compliance and spirit of the
judgment of the CAT dated 20.11.1992 in TA No.356/1985
(CW 3/1978) rendered in Shri M.G. Bansal & Ors. v. Union of
India & Ors. The directions so contained in the said judgment
shall be carried out within three months from the date of this
judgment.
33. For the reasons stated above, the appeals are allowed to
the extent indicated above. However, in the facts and
circumstances of the case, the parties are left to bear their
own costs.