JUDGMENT
Ramanujam, J.
1. This appeal is directed against the order of Mohan, J., in Writ Petition No. 665 of 1976 dismissing the said writ petition. The appellants were temporarily promoted along with 13 others as Executive Officer, Grade I from the post of Executive Officer, Grade II on various dates in 1964 and they were later regularised with effect from 1st April, 1965. On 22nd May, 1965, there was a selection of direct recruits to the post of Executive Officer, Grade I and those direct recruits were posted as Executive Officers, Grade I, on various dates in 1965. Subsequently there was fixation of inter se seniority of persons as between the appellants Who were promoted from Grade II and those Who were recruited directly as Executive Officer, Grade I, in G. O.Ms. No. 57, Commercial Taxes and Religious Endowments Department dated 20th January, 1976. In the said combined seniority list, the first appellant has been given 15th rank and the second appellant 19th rank. The appellants had filed the above writ petition seeking to quash the said G. O. on the ground that the inter se seniority has been fixed in contravention of Rule 35 (a) of the State Subordinate Service Rules, hereinafter referred to as the General Rules. Apart from the appellants there were three other promotees who also filed writ petitions challenging the same G.O.
2. All these writ petitions were resisted by the first and second respondents and the direct recruits who are respondents 3 to 8 herein. Their case was that the inter se seniority has been fixed as against those regularly appointed as Executive Officer in Grade I in the year 1965 by applying Rule 2(b) of the Hindu Religious and Charitable Endowments Subordinate Service Rules, hereinafter called the Special Rules, by taking two direct recruits and three promotees for every set of five persons and that such inter se fixation of seniority is strictly in accordance with the said Rules.
3. Mohan, J., has held that the inter se seniority fixed under the impugned G. O. was strictly in accordance with Rule 2(b) of the Special Rules and that it does not contravene Rule 35(a) of the General Rules. In that view all the writ petitions were dismissed. The view taken by Mohan, J., has been challenged in this writ appeal.
4. The learned Counsel for the appellants has urged three contentions. (1) that the inter se seniority fixed under the impugned G. O. as between direct recruits and the promotees is not only quite arbitrary but also contravenes Rule 35(a) end that it is also violative of Article 16; (2), that Rule 2(b) of the Special Rules does not permit the fixation of such a seniority ignoring general Rule 35 (a); (3) that the inter se seniority list has never been fixed so far with reference to Special Rule 2(b) and that the new departure made in enforcing the special rule for the first time, has prejudiced persons like the appellants who are promotees.
5. As per general Rule 35 (a) the seniority of a person is determined, only by the ranking-obtained by him in the approved list drawn by the appointing authorities irrespective of the date of commencement of probation. Special Rule 2(b) provides for a ratio of 2 :3 between direct recruits and promotees in the matter of recruitment to the posts of Executive Officers, Grade I. According to the Appellants, general Rule 35 (a) alone is to be applied in the matter of fixation of seniority ignoring the ratio fixed in Special Rule 2(b), for Special Rule 2(b) has not been enforced by the authorities at any point of time anterior to the passing of the impugned G. O. We do not see how the appellants cm say that Special Rule 2(b) cannot be enforced by the Government even assuming that the said rule has not been given effect to earlier. Admittedly this is a rule framed under Article 309 of the Constitution and that rule has to be strictly followed in the matter of recruitment to the posts of Executive Officers, Grade I. The fact that in earlier years the Government has not strictly enforced the said rule even if true, is not a ground to say that the Government cannot enforce that Rule. Even if the Government has not enforced the rule for certain reasons in the earlier years as alleged by the appellants, that cannot be taken advantage of by the appellants to say that the said statutory rule cannot be given effect to at all.
6. It cannot be disputed that general Rule 435(a) does not specifically provide for determining the inter se seniority between persons appointed to a category from different sources and that it normally applies to a situation where recruitment is made for a single source. In cases where the recruitment is made to a service from different sources as in this case, one by direct recruitment and the other by promotion , Special Rule 2(b) determines as in what proportion the selection should be made from each source. In this case the appellants do not challenge the validity of Rule 2(b) fixing the ratio of 2 :3 between direct recruits and promotees in the matter of recruitment to the posts of Executive Officers, Grade I. Special Rule 2(b) is extracted below:
(6) In respect of the appointment to the posts of Executive Officers, First to Fourth Grade, two out of every five vacancies shall be filled in by direct recruitment while the other three shall be filled in by any of the other methods specified in sub-rule (a):
Provided that the Government may for special reasons alter the proportion specified in this sub-rule.
The ratio of 2:3 between direct recruits and the promotees fixed under the rule has to be strictly followed, provided the Government may for special reasons alter the proportion specified in a particular situation. It is not the case of the appellants that the said ratio 2:3 has been altered or departed from by the Government at any time during the year 1965 when the recruitment of the appellants and respondents 3 to 8 had taken place. How combined seniority list has to be prepared between persons coming from two different sources in the context of a rule like Special Rule 2(A) has been considered by the Supreme Court in the following cases:
7. In Mervyn Coutinho v. Collector of Customs their Lordships of the Supreme Court were concerned with a seniority list of Appraisers prepared by the Customs department. The said seniority list had been prepared on the basis of the following circular issued by the Central Board of Re venue:
Inter se seniority of direct recruits and promotees in the grade of Appraisers should be determined in the order in which the vacancy in that grade is filled by the direct recruit or by a promotee according to the quota fixed for such appointment.
by arranging persons appointed in such a way that one person is put in from the direct recruits and one from the promotees from the department alternatively, as the ratio fixed under the service rules was 50:50 as between the direct recruits and the promotees. Preparation of such a seniority list was challenged as offending the right to equality of opportunity enshrined in Article 16(1) of the Constitution. The Supreme Court, however, did not uphold the challenge but it held that where recruitment to a cadre is from two sources namely direct recruits and promotees and a rotation system of 50:50 is enforced, the seniority is to be fixed by alternatively placing a promotee and a direct recruit in the seniority list and while doing so there is no violation of the principle of equality of opportunity contained in Article 16 and that if any anomaly results from the adoption of such a rotational principle, it is not due to any vice inherent in the rotational system but may be due to other circumstances such as non-availability of candidates from the respective sources. The following observations of the Supreme Court appears to be pertinent:
Where therefore recruitment to a cadre is from two sources namely direct recruits and promotees and rotational system is in force, seniority has to be fixed as provided in the explanation by alternately fixing a promotee and a direct recruit in the seniority list. We do not see any violation of the principle of equality of opportunity enshrined in Article 16(1) by following the rational system of fixing seniority in a cadre half of which onsists of direct recuits and the other half of promotees and the rotational system by itself working in this way cannot be said to deny equality of opportunity in Government service. The anomalies which have been referred to in the petition arise not on account of there being anything opposed to e quality of opportunity in Government service by the use of the rotational system, they arise out of the fortuitous circumstance that in this particular service of Appraisers, for one reason or another, direct recruitment has fallen short of the quota fixed for it.
In V.B. Badami v. State of Mysore (1976) 2 S.C.G. 906 the Supreme Court had again dealt with a similar situation. In that case there was a quota rule in the matter of recruitment to the post of Assistant Commissioners Class I (junior scale). This cadre has to be filled up from two sources, direct recruits and promotees in the ratio of 1:2. In some of the years recruitment to the cadre post of Assistant Commissioners, Class I (junior scale) had been made from the promotees in excess of their quota. Later when the recruitment of direct recruits had been made, the inter se seniority was fixed by applying the quota rule. That was challenged on the ground that it is violative of Rule 2(c) of the Mysore Government Servants (Seniority) Rules, 1957 which was as follows:
Seniority inter se of persons appointed on temporary basis will be determined by the dates of their continuous officiation in that grade and where the period of officiation is the same the seniority inter se in the lower grade shall prevail.
In that case persons who were promoted to the higher post of officiating therein long before the direct recruits came into the picture have been shown as juniors to the direct recruits who came later. The Supreme Court pointed out that in working out the quota rule the following principles are to be generally followed:
(1) 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.
(2) Confirmed persons are senior to those who are officiating;
(3) As between persons appointed in officiating capacity seniority, is to be counted on the length of continuous service.
The Supreme Court pointed out that the quota between the promotees and direct recruits has to be fixed with reference to the permanent strength in the cadre, that so long as the quota rule remains neither promotees nor direct recruits can be allotted to promotional vacancies in excess of their respective quota and that the quota rule cannot be altered according to exigencies of each situation but can be altered only by fresh determination of the quotas under the relevant rule. On the facts of that case the Supreme Court found that the promotees had been appointed in excess of their quota and therefore they had to give place to the direct recruits and go down to vacancies in the subsequent period. In this view the Supreme Court upheld the seniority list fixed in pursuance of the rotational principle contained in the Service Rules.
8. In N.K. Chauhan v. State of Gujarat the Supreme Court has reviewed almost all of its earlier decisions on the point. In the erstwhile State of Bombay the quota fixed for recruitment to the cadre of Deputy Collectors was 50 : 50 as between direct recruits and promotees. The Gujarat State which was form ed on 1st May, 1960 continued the quota system by a circular dated 1st May 1960. However, during 1959-62 no direct recruitment was made and all the vacancies had been filled up by promotion. Afterwards in 1963 and thereafter direct recruits were appointed. The direct recruits later appointed claimed seniority over the promotees who had come into the cadre earlier, on the basis of the quota rule. The Supreme Court dealing with the question as to whether the claim of the direct recruits to go ahead in the gradation list on the basis of the rotation rule expressed the view that though the Gujarat Government in that case adopted the quota system, they have not however provided for a rotational or roster system which should go hand in hand with the quota system, and that in the absence of a rule of rotation a quota is fixed for each category at the stage of the entry, the quota methodology may itself take many forms-vacancy-wise ratio, cadre composition-wise proportion period-wise or number wise regulation. If the rotation principle is not provided in the rules which is usually a corollary to the quota rule, it is then open to the Government to adopt any one methodology in fixing the inter se seniority, between persons coming from various sources The Supreme Court ultimately expressed its view thus :
The quota rule does not, inevitably, in voke the application of the rota rule. The impact of this position is that if sufficient number of direct recruits have not been forthcoming in the years since 1960 to fill in the ratio due to them and those deficient vacancies have been filled up by fromotees, later direct recruits cannot claim ‘deemed’ dates of appointment for seniority in service with effect from the time, according to the rota or turn, the direct recruits vacancy arose. Seniority will depend on the length of continuous officiating service and cannot be upset by later arrivals from the open market save to the extent to which any excess promptees may have to be pushed down as indicated earlier.
The ultimate conclusions of the Supreme Court after a survey of all decided cases on the point are these:
(a) The quota system does not necessitate the adoption of the rotational rule in practical application. Many steps of working out ‘quota’ prescription can be devised of which rota is certainly one.
(b) While laying down a quota when (sic) ling up vacancies in a cadre from more than one source, it is open to Government, subject to tests under Article 16, to choose ‘a year’ or other period or the vacancy by vacancy basis to work out the quota among the sources….
(c) Seniority normally, is measured by length of continuous, officiating service the actual is easily accepted as the legal. This doss not preclude a different prescription, constitutionality tests being satisfied.
(d) A periodisation is needed in this case to settle rightly the relative claim of promotees and direct recruits. 1960-62 forms a period A and 1963 onwards forms period B. Promotees regularly appointed during period A in excess of their quota, for want of direct recruits (reasonably sought but not secured and because tarrying longer would injure the administration) can claim their whole length of service for seniority-even against direct recruits who may turn up in succeeding periods.
(e) Promotees who have been fitted into vacancies beyond their quota during the period B the year being regarded as the unit, must suffer survival as invalid appointees acquiring new life when vacancies in their quota fall to be filled up. To that extent they will step down, rather be pushed down as against direct recruits who were later but regularly appointed within their quota.
9. The Supreme Court in its earlier decisions proceeds on the basis that if appointments have been made from a particular source in excess of the quota, persons coming from other sources within their quota can claim seniority to the former even if they had been appointed to the post earlier. The view taken by the Supreme Court in the later decision in N.K. Chaudhan v Slate of Gujarat is that though there is a quota for each source that has to be applied in conjunction with the rule of rotation if any provided in the rules and that if there is no rule of rotation the quota rule has to be applied either with reference to vacancies at a particular time or cadre composition or a period or the number and that it is open to the Government to choose a year or other periods to work out the quota among the various sources. Applying the said principle we have to find out whether the impugned combined seniority list prepared for the post of Executive Officers, Grade I is invalid as offending Article 16 of the Constitution as contended by the appellants.
10 The learned Counsel for the appellant refers to the decision in General Manager, South Central Railway v. A.V.R. Sidddhanti wherein it has been observed that once the persons coming or recruited to the service from two different sources are absorbed into one integrated class with identical service conditions, they cannot be discriminated against with reference to the original source, for the purpose of absorption and seniority. But those observations have to be read with reference to the particular facts of that case. There the recruitment was made from three sources to the grain shop department of the Railways and integrated into a single cadre governed by identical service conditions. After some time the grain shop department was wound up and at the stage of absorption of the persons who were working in the grain shop department at the time of the winding up in other permanent departments, classification of grain shop staff was made by fixing the inter se seniority. That classification was based on the source from which they came originally to the grain shop department. Such a classification was held to be bad for the reason that after there has been a clear merger of persons coming from three different sources into a single cadre, there is no question of fixing seniority for purposes of absorption in permanent departments with reference to the source from which they came. Further, there was no quota rule as between the three sources from which recruitment was made and therefore the principle laid down in that case cannot be applied here. The learned Counsel also refers to the decision in F C. Sethi v. Union of India in support of his proposition that once the recruitment has been made to the post of Executive Officer, Grade I from two different sources, direct recruits as well as promotees, persons recruited, have become equal and there could be no discrimination whatsoever amongst the equals and giving of a higher rank to the direct recruits without reference to their date of entry into service will be arbitrary. That decision also will not apply here as it has been found in that case that though there was a quota fixed for direct recruits and promotees, the policy adopted by the Government as seen from the executive instructions are different and that the appointments had been made only on the basis of the executive instructions and not on the basis of quota.
11. In this case both the appellants who are promotees and respondents 3 to 8 Who are direct recruits had been appointed regularly in the year 1965. As has been held by the Supreme Court in N.K. Chatham v. State of Gujarat it is open to the Government to fix a year as a unit for fixing the quota. Therefore with reference to persons recruited in the year 1965, the seniority has been fixed by placing two direct recruits and three promotees in a cycle of five. Once an year could be taken as the unit, what the Government has done in this case cannot be challenged at all, as arbitrary or violative of Article 16 of the Constitution, having regard to the quota rule fixing 2:3 as between direct recruits and promotees. In this case some of the promotees had been posted as Executive Officers temporarily earlier to some of the direct recruits, prior to 1965. But such temporary appointments cannot confer on them any right and it is the regular appointment that has to be taken into account for the purpose of fixing the seniority. The impugned combined seniority list has been fixed by the Government with reference to the quota rule taking into account the date of their regular appointment of the direct recruits as well as promotees.
12. This Court with reference to recruitment to the post of Assistant Commissioners and the fixation of inter se seniority with reference to the proportion 60:40 between promotees and the direct recruits held that the quota rule can be applied vacancy-wise. In that case (P.M. Muthuvel v. State of Tamil Nadu and Ors W.P. No. 3660 of 1977 in every cycle of 10 vacancies the quota of 60 40 had been applied and that was upheld by this Court. The said view has also been upheld in P.M. Multilevel v. State of Tamil Nadu and Ors. W.A. No- 406 of 1978, by a Division Bench of this Court. In R. Tamilmani v. State of Tamil Nadu and Ors. W.P. Nos. 2016 and 2017 of 1972 the identical question which arises in this case as to the relevant scope of Rule 35(a) and the special rule 2(a) of Commercial Taxes Service Rules came up for consideration and one of us expressed the view that an year can be taken as a unit for fixing the inter se seniority on the basis of the quota rule and that all those persons recruited to the post of Joint Commercial Tax Officers either by direct recruitment or by promotion in the same year have to be arranged in the seniority list on the basis of the quota rule. The said decision is in consonance with the judgment of the Supreme Court in N. K. Ghauhan v. State of Gujarat (1977) 1 S.C.R. 1037 : A.I.R. 1977 S.C. 251 .
13. In this case, since the seniority had been feed between persons who have been regularly appointed to the post in the year 1965 from two sources, direct recruits and promotees strictly in accordance with Rule 2(b) of the special rules, the impugned order has to be held to be valid.
14. The writ appeal therefore fails and is dismissed. There will however, be no order as to costs.
The Order of the Court was delivered by
ORDER
Ramanujam, J.
This matter has been posted before us at the instance of the counsel for the respondents 3 and 4, who apprehend that the rights of the respondents 3 and 4 arising out of their regularisation of services as Executive Officer, Grade I from 1962 may be a flected by the observations made in our judgment that the respondents 3 and 4 have been recruited directly in the year 1965. We, with a view to avoid any such apprehension, make it clear that any observation made in our judgment will not prejudice the rights, if any of the respondents 3 and 4, Whose services have been regularised by orders of Government with effect from 1962. No further orders are necessary.