{"id":152213,"date":"1990-03-27T00:00:00","date_gmt":"1990-03-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/awadh-prasad-singh-and-ors-vs-state-of-bihar-and-ors-on-27-march-1990"},"modified":"2018-11-17T14:06:52","modified_gmt":"2018-11-17T08:36:52","slug":"awadh-prasad-singh-and-ors-vs-state-of-bihar-and-ors-on-27-march-1990","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/awadh-prasad-singh-and-ors-vs-state-of-bihar-and-ors-on-27-march-1990","title":{"rendered":"Awadh Prasad Singh And Ors vs State Of Bihar And Ors on 27 March, 1990"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Awadh Prasad Singh And Ors vs State Of Bihar And Ors on 27 March, 1990<\/div>\n
Equivalent citations: 1990 AIR 1256, \t\t 1990 SCR (2) 193<\/div>\n
Author: B Ray<\/div>\n
Bench: Ray, B.C. (J)<\/div>\n
           PETITIONER:\nAWADH PRASAD SINGH AND ORS.\n\n\tVs.\n\nRESPONDENT:\nSTATE OF BIHAR AND ORS.\n\nDATE OF JUDGMENT27\/03\/1990\n\nBENCH:\nRAY, B.C. (J)\nBENCH:\nRAY, B.C. (J)\nSAIKIA, K.N. (J)\n\nCITATION:\n 1990 AIR 1256\t\t  1990 SCR  (2) 193\n 1990 SCC  (3) 294\t  JT 1990 (3)\t483\n 1990 SCALE  (1)587\n\n\nACT:\n    Excise  Recruitment\t Rules\t1936:  Rule   1(3)(2)--Bihar\nState--Excise  Department--Excise Inspectors  promoted\tfrom\nUpper  Division Assistants in Excise Department\t and  Excise\nInspectors  promoted  Sub-Inspectors--Gradation\t list--Chal-\nlenge to--Whether valid.\n\n\n\nHEADNOTE:\n    The subject matter of the Writ Petition is the gradation\nlist dated 9.1.1986 of the Inspectors of Excise by which the\nGovernment of Bihar has finally fixed the inter se seniority\nof  the Petitioners who were promoted vis-a-vis\t the  appel-\nlants  in the present appeal who were promoted to  posts  of\nInspectors of Excise in 5% quota reserved for promotion from\nthe posts of Upper Division Assistants of Excise Department.\n    In\tthe  gradation\tlist the appellants  who  joined  as\nInspectors  of Excise on 7.5.76 were shown as senior to\t the\nExcise\tInspector who were promoted from  Sub-Inspectors  on\n24.4.74 in the vacancies of direct recruits.\n    The\t gradation list was challenged in the High Court  by\nthe  Respondents on two grounds i.e., (1) the State  Govern-\nment  has  no  jurisdiction to determine  the  seniority  or\ngradation  list\t of  the Excise\t Inspectors,  the  competent\nauthority is the Excise Commissioner (2) The Respondents  in\nthe  present  appeal have been continuously  officiated\t for\nyears together in the vacancies of direct recruits and\tthus\ncould  not be pushed down for determining the seniority\t and\nshown as juniors to the contesting appellants.\n    The High Court allowed the Writ Petition in part. It was\nheld  that 5% quota to be filled up by promotion from  Upper\nDivision  Assistants of Excise Department was notified\tonly\non 31st March 1975, whereas the appellants have been promot-\ned  in the 5% quota of vacancies of the year 1974-75.  Hence\nthey have not been promoted in the 5% quota. The Respondents\nin the present appeal were promoted as Excise Inspectors  on\n24.4.74 in the quota of direct recruits and thus they  could\nnot  be\t shown\tas juniors to those who\t were  promoted\t and\njoined\ton 7.5.76 from 5% quota of the 1974-75\tyear  vacan-\ncies. The High Court quashed the\n194\ngradation list and directed the State Government to draw  up\na fresh list in the light of the observations made.  Further\nit held that State Government is the competent authority  to\ndetermine inter se seniority because where in any provisions\nof  Bihar Excise Act 1915 government has vested\t the  Excise\nCommissioner with the power of determining the seniority  of\nthe Excise Inspectors. Hence the gradation list prepared  by\nthe State Government is legal and valid.\n    The\t appellants  filed Special Leave  petition  in\tthis\nCourt against the High Court Judgment and Order.\nAllowing the Special Leave Petition, this Court,\n    HELD: The appellants claimed to be promoted to the posts\nof  Inspectors in the 5% quota set apart for promotion\tfrom\nthe  Upper Division Assistants against the vacancies of\t the\nyear 1974-75. Since under Bihar Excise Act 1915 vide notifi-\ncation\tNo. 417 of 15.1.1919 clause (iv) the Excise  Commis-\nsioner\twas given only the powers to appoint Excise  Inspec-\ntors  by promotions but not to determine inter se  seniority\netc.  Hence vide Excise Recruitment Rules 1936, Rule  No.  I\nvide  notification No. 411 dated 31.3.75, after\t clause\t (2)\nclause\t(3)  was added making provision for  promotion\tfrom\nselected confirmed Upper Division Assistants and Head Clerks\nof  the District Excise Office and also added at the end  of\nthe Rule 1 that at least 5% of the total vacancies shall  be\nfilled up by promotion from among the above notified  staff.\nIn this rule the provision for relaxation of direct recruit-\nment quota was made but there was no relaxation of the quota\nof promotees. [197G; 198C; 199E]\n    The\t State\tGovernment made this decision and  order  on\n20.3.74\t regarding reservation of 5% of the total  vacancies\nto  be\tfilled\tby promotion for the year  1974-75  but\t the\nnotification  to that effect was published on  31.3.75.\t The\npromotion could not have been given unless the decision\t was\nconfirmed  by notification. It was only after the  notifica-\ntion  of  31.3.75, that the Upper Division  Assistants\twere\npromoted as Excise Inspectors for the first time out of\t the\n5%  quota created in the vacancies of 1974-75, in  the\tyear\n1976. [205G-H; 206B]\n    The\t Government  has  rightly  promoted  the  appellants\nwithin their quota in the vacancies occurred in 1974 by\t its\norders. [211D]\n    When  there is no relaxation in the quota  vacancies  as\nbetween the direct recruitment and promotees, the determina-\ntion of inter se\n195\nseniority  shall be determined in the order of\trotation  of\nvacancies reserved for both categories, the direct  recruits\nmade within their quota would always deemed to be senior  to\nthose promotees recruited inexcess of their quota. [210H; 21\n1A]\n    V.B.   Badami v. State of Mysore, AIR<\/a> 1980 SC  1561;  A.\nJanardhana v. Union of India & Ors., AIR<\/a> 1983 SC 769 and  O.\nSingla\t& Anr. v. Union of India & Ors., AIR 1984  SC  1595,\nrelied on.\n    It\tis  only when the quota rule was not adhered  to  or\nfollowed  for a long time and the promotees are\t allowed  to\nofficiate in the quota of direct recruits for a period of 15\nto  20 years, in such circumstances Government is  empowered\nto relax the quota rule and the promotees will have seniori-\nty  from  the  date of the continuous  officiations  in\t the\ncadre, grade or service. [210F]\n    Narendra  Chadha v. Union of India, AIR<\/a> 1986 SC 638\t and\nG.S. Lamba & Ors. v. Union of India & Ors.,<\/a> [1985] 3 SCR 431\n    Quotas  are fixed under the relevant rules\tof  recruit-\nments  and  can be altered only by  fresh  determination  of\nquotas under the relevant rules of recruitments. [201 C]\n    In the instant case, there was no rule for relaxation of\nthe quota. The respondent Nos. 3 & 4 who were promoted\tfrom\nselected  Excise Sub-Inspectors to the Inspectors of  Excise\nin  1974,  officiated  till 7.5. 1976  when  the  appellants\njoined\tas  Inspectors\tof Excise from their  5%  quota.  It\ncannot be said in such circumstances that the quota was\t not\nfilled\tup  for a long period nor can it be  said  that\t the\nrespondents 3 & 4 who were promoted in excess of their quota\nhave  worked  as inspectors of Excise for long time  and  as\nsuch the respondents 3 & 4 cannot claim to be seniors to the\nappellants. [210G-H; 211A]\n    The\t appellants being promoted as Inspectors  of  Excise\nfrom  the  5% quota of vacancies of the year  1974-75,\twere\nrightly shown as seniors. in the gradation list prepared  by\nthe Government on 9.1.1986 which is legal and valid. [21 1D]\n\n\n\nJUDGMENT:\n<\/pre>\n
    CIVIL APPELLATE JURISDICTION: Civil Appeal No. 16 13  of
\n1990.\n<\/p>\n
    From  the  Judgment and Order dated 1.4. 1987  of  Patna
\nHigh Court in Civil Writ Jurisdiction Case No. 4097 of 1985.\n<\/p>\n
196<\/span><\/p>\n
    R.K.  Garg,\t Praveen Swarup and Pramod  Swarup  for\t the
\nAppellants.\n<\/p>\n
    M.K. Ramamurthi, L.R. Singh, B.B. Singh, D.P.  Mukherjee
\nand M.P. Jha for the Respondents.\n<\/p>\n
The Judgment of the Court was delivered by
\nRAY, J. Arguments heard. Special Leave granted.
\n    This  appeal  on Special Leave is directed\tagainst\t the
\nJudgment  and Order dated April 1, 1987 passed by  the\tHigh
\nCourt,\tPatna  m C.W.J.C. No. 4097\/1985\t allowing  the\twrit
\npetition in part. The subject matter of the writ petition is
\nthe  gradation\tlist dated 9.1. 1986 of\t the  Inspectors  of
\nExcise\tby which the Government of Bihar has  finally  fixed
\nthe  inter se seniority of the petitioners  (respondents  in
\nthis  Appeal)  who were promoted vis-a-vis  the\t respondents
\nNos. 3 and 4 (appellants in this appeal) who are promoted to
\nposts of Inspectors of Excise in 5% quota for promotion from
\nthe posts of Upper Division Assistants of Excise  Department
\nin the said Civil Writ Petition.\n<\/p>\n
    The matrix of this case in short is that the  appellants
\nNos. 1 and 2 who were respondents 3 and 4 of the writ  peti-
\ntion  were promoted to the posts of Excise  Inspectors\tfrom
\namong the Upper Division Assistants of the Excise Department
\nagainst the vacancies of the year 1974-75 and they joined as
\nInspectors  of Excise on May 7, 1976. The respondent Nos.  3
\nand  4\twho were Sub-Inspectors of Excise were\tpromoted  on
\n24.4.74\t in the vacancy of the year 1974-75 by\tthe  Commis-
\nsioner\tof Excise, Bihar. In the gradation list prepared  by
\nthe Government on January 9, 1986 the appellants were  shown
\nas  seniors to the respondents even though  the\t respondents
\nwere  promoted\tfrom selected Sub-Inspectors of\t Excise\t and
\nthey joined the posts of Excise Inspectors earlier than\t the
\ndate when the appellants were promoted as Excise Inspectors.
\nThis  has been challenged by the respondents on\t the  ground
\nthat  there is an apparent error committed by the  State  in
\nshowing\t the  respondents juniors to the appellants  in\t the
\ngradation list. The gradation list was challenged mainly  on
\ntwo grounds namely:\n<\/p>\n
(1)  the State Government has no jurisdiction  to  determine
\nthe  seniority of Excise Inspectors and the  only  competent
\nauthority  for determining the same was the  Excise  Commis-
\nsioner who has neither determined the seniority nor prepared
\nthe gradation list.\n<\/p>\n
197<\/span><\/p>\n
(2) The respondents (petitioners of the writ petition)\thave
\ncontinuously officiated for years together in the vacancy of
\ndirect\trecruits  and merely because  the  respondents\twere
\nappointed against the vacancy of direct recruits they  could
\nnot  be pushed down for determining the seniority and  shown
\njunior\tto the contesting appellants. The writ petition\t was
\nallowed by the High Court holding that the respondents\twere
\nnot  appointed in the 5% quota set apart for being filed  up
\nby promotion from the posts of Upper Division Assistants  in
\nthe Excise Department inasmuch as this quota was notified by
\nthe Government on March 31, 1975 even though the  Government
\npassed\torder  providing  5% of the total  vacancies  to  be
\nfilled by the promotion from among the selected Upper  Divi-
\nsion Assistants and selected Head Clerks. It has, therefore,
\nbeen  contended that the petitioners Nos. 3 and 4  (respond-
\nents Nos. 3 and 4 in this appeal) cannot be shown as juniors
\nto the appellants. Moreover it has been alternatively  urged
\nthat these respondents having been promoted to the posts  of
\nInspectors of Excise in the quota of direct recruitment\t for
\nseveral years, they could not be pushed down and the  appel-
\nlants who joined on promotion to the posts of Inspectors  of
\nExcise\tsubsequently  cannot be shown as senior to  the\t re-
\nspondents Nos. 3 and 4 in the said gradation list. The\tHigh
\nCourt,\tPatna  after hearing the parties held that  the\t re-
\nspondents  Nos. 3 and 4 who were appointed in the  vacancies
\nof  the\t promotees  of the year 1974-75 and  who  joined  as
\nInspectors on 24.4.1974 cannot be made juniors to appellants
\nNos. 1 and 2 who were promoted and joined two years later on
\n7.5. 1976. The High Court allowed the writ petition in\tpart
\nby  quashing the gradation list (Annexure 15)  and  directed
\nthe  Government\t to draw up a fresh gradation  list  in\t the
\nlight of observations made therein.\n<\/p>\n
    It is against this judgment and order passed in C.W.J.C.
\nNo.  4097\/85, the instant appeal on special leave  has\tbeen
\nfiled by the appellants.\n<\/p>\n
    The\t only question that falls for consideration in\tthis
\nappeal is whether the appellants who claim to be promoted to
\nthe posts of Inspectors of Excise in the 5% quota set  apart
\nfor promotion to the posts of Inspector of Excise from among
\nthe  Upper  Division  Assistants of  the  Excise  Department
\nagainst the vacancies of the year 1974-75 had been  promoted
\nin  this  quota.  In order to decide this  question,  it  is
\nrelevant to refer to certain provisions of the Bihar  Excise
\nAct, 1915 as well as Rules 1 & 4 of the Inspectors of Excise
\nRecruitment Rules, 1936.\n<\/p>\n
198<\/span><\/p>\n
    Section 2(7) of the Bihar Excise Act, 1915\t(hereinafter
\nreferred  to  as Act) defines Excise  Commissioner  “as\t the
\nOfficer\t appointed under Section 7 sub-section 2 clause\t (a)
\nof the said Act”. Section 7 Sub-Section (2)(a) provides that
\nthe  State Government may appoint an officer who shall\tsub-
\nject  to  such control as the State Government\tmay  direct,
\nhave the control of the administration of the Excise Depart-
\nment  and  the\tcollection of the  excise  revenue.  Section
\n7(2)(a)\t further  provides  that the  State  Government\t may
\ndelegate to the Board, the Commissioner of a Division or the
\nExcise Commissioner all or any of the powers conferred\tupon
\nthe State Government by or under this Act except the  powers
\nconferred  by  Section\t89 to make  Rules.  Section  7(2)(f)
\nprovides  that\tthe State Government may withdraw  from\t any
\nofficer\t or person all or any of the powers of\tduties\tcon-
\nferred or imposed upon him by or under this Act.. By Notifi-
\ncation\tNo. 417 dated January 15. 1919, in exercise  of\t the
\npowers conferred under the Act, the Lt. Governor in  Council
\nwas pleased to make clause (ii) of the Notification order to
\nthe  effect that there shall be an Excise  Commissioner\t who
\nshall subject to the control of the Board will have through-
\nout the province of Bihar the control of the  administration
\nof the Excise Department and the collection of excise  reve-
\nnue. It has also been provided in clause (iv) of the Notifi-
\ncation\tthat the power to appoint by promotion Inspector  of
\nExcise\twas  delegated\tto the Excise  Commissioner  by\t the
\nGovernment.\n<\/p>\n
    Thus,  it is clear and apparent that the Excise  Commis-
\nsioner has been delegated the powers by the State Government
\nto  appoint  by promotion from\tselected  Sub-Inspectors  of
\nExcise,\t but no here it has been mentioned in any  of  those
\nprovisions that the Excise Commissioner has been vested with
\nthe power of determining the seniority of the Inspectors  of
\nExcise. Therefore, the submission that the seniority list or
\nthe  gradation\tlist  prepared by the  State  Government  is
\nunauthorised being beyond the powers of the State Government
\nis  unsustainable and the gradation list that has been\tpre-
\npared  on January 9, 1986 by the State Government  is  legal
\nand valid as upheld by the High Court.\n<\/p>\n
    It\tis  necessary to refer to the recruitment  rules  to
\ndetermine  seniority.  Rule 1 of Excise\t Recruitment  Rules,
\n1936 reads as follows:\n<\/p>\n
“1. Inspectors of Excise and Salt shall be appointed:\n<\/p>\n
(i) by direct recruitment by the Board of Revenue,or,
\n199<\/span>\n<\/p>\n
     (ii)  by  promotion of selected Sub-Inspectors  by\t the
\nCommissioner of Excise and salt.\n<\/p>\n
\t Not  more than 25 per cent of the  vacancies  shall
\nordinarily  be\tfilled by direct recruitment; but  with\t the
\napproval  of the Board of Revenue on the  recommendation  of
\nthe Commissioner of Excise this proportion may on any  occa-
\nsion, be increased to 50 per cent”.\n<\/p>\n
Later on by Notification No. 1451 dated 2.3. 1945  published
\nin  the Bihar Gazette on March 7, 1945, the expression\t“not
\nmore than” in\tthe last paragraph of Rule 1 has been delet-
\ned. Subsequently by Government Notification S.O. 411,  dated
\n31st  March,  1975 published in the  Bihar  Gazette,  Extra-
\nordinary  Issue\t on  that day, after clause (2)\t or  rule  1
\nclause (3) has been added and it reads as follows:
\n“by  promotion from among selected confirmed Upper  Division
\nAssistants of the Excise Commissioner’s office and  selected
\nconfirmed Head Clerks of the District Excise Offices”.
\n    By the said notification the following has been added at
\nthe end of rule 1 “Atleast 5 per cent of the total vacancies
\nshall  be filled by promotion from among the selected  Upper
\nDivision Assistants and selected Head Clerks.”\n<\/p>\n
    Thus on a perusal of the said rule as amended clearly it
\nindicates  that 25% of the total vacancies for the  post  of
\nInspectors of Excise shall be filled by direct\trecruitment,
\n70%  shall  be filled by promotion from among  the  selected
\nSub-Inspectors\tand  5% shall be filled\t by  promotion\tfrom
\namong the confirmed Upper Division Assistants of the  Excise
\nCommissioner’s\tOffice\tand  confirmed Head  Clerks  of\t the
\nDistrict  Excise Offices. The 25% quota of  direct  recruits
\ncan be relaxed and increased to 50 per cent. It is  signifi-
\ncant  to note in this connection that no provision has\tbeen
\nmade in the said rules for relaxation of the quota of promo-
\ntees.  The necessary question arises if the  promotion\tfrom
\nSub-Inspectors of Excise to the post of Inspectors of Excise
\nhave  been made in excess of the quota of the  promotees  in
\nthe vacancy of direct recruits and later on direct  recruit-
\nment  has been made the promotees can in such  circumstances
\nbe treated to be juniors to the direct recruits or not. This
\nquestion  was under consideration before this Court  in\t the
\ncase of V.B. Badami v. State of Mysore, A.I.R.<\/a> 1980 SC 1561.
\nIn this case The Mysore Administrative Service
\n200<\/span>
\n(Recruitment) Rules, 1957 classified class 1 posts into\t two
\ncategories:  senior scale posts and the junior scale  posts.
\nTwo-thirds of the junior class I posts were filled by promo-
\ntion  from  Class II officers and the balance  one-third  by
\ndirect recruitment by the Public Service Commission. By\t the
\nMysore Recruitment of Gazetted Probationers Rules, 1959, the
\nquota  for direct recruitment to the  Mysore  Administrative
\nService\t was  increased from one-third to two-thirds  for  a
\nperiod of five years as a consequence of which the quota for
\npromotees  had been reduced to one third, Rule 17(b) of\t the
\n1957  Recruitment Rules empowered the Government to fill  up
\nposts temporarily by promotion against vacancies for  direct
\nrecruits but such promotees were liable to be reverted after
\nthe appointment of direct recruits.\n<\/p>\n
    In January 1972, a Gradation List was published in which
\nthe  direct recruits (respondents) were shown as  senior  to
\nthe  appellants. The appellants challenged the seniority  of
\nthe respondents in writ petitions on the ground mainly\tthat
\nthe  respondents  were recruited only to  the  20  temporary
\nposts  created\tand that the appellants and 51\tothers\twere
\nappointed  to  59 permanent vacancies. The appeal  was\tdis-
\nmissed by this Court and it has been observed as follows:
\n“The principles generally followed in working out the  quota
\nrule  are,  (i) Where rules prescribe quota  between  direct
\nrecruits and promotees confirmation or substantive  appoint-
\nment can only be in respect of clear vacancies in the perma-
\nnent  strength\tof  the cadre; (ii)  confirmed\tpersons\t are
\nsenior\tto those who are officiating; (iii) as between\tper-
\nsons  appointed in officiating capacity, seniority is to  be
\ncounted\t on  the length of continuous service;\t(iv)  direct
\nrecruitment  is\t possible only\tby  competitive\t examination
\nwhich is the prescribed procedure under the rules. In promo-
\ntional vacancies, the promotion is either by selection or on
\nthe  principle of Seniority-cum-merit. A promotion could  be
\nmade  in  respect  of a temporary post or  for\ta  specified
\nperiod, but direct recruitment has generally to be made only
\nin respect of a clear permanent vacancy, either existing  or
\nanticipated to arise at or about the period of probation  is
\nexpected  to  be completed; (v) if promotions  are  made  to
\nvacancies in excess of the promotional quota, the promotions
\nmay  not  be  totally illegal but would\t be  irregular.\t The
\npromotees can not claim any right to hold promotional  posts
\nunless the vacancies fall within their quota. If the  promo-
\ntees occupy any vacancies which are within the
\n201<\/span>
\nquota of direct recruits, when the direct recruitment  takes
\nplace, the direct recruits will occupy the vacancies  within
\ntheir  quota.  Promotees  who are  occupying  the  vacancies
\nwithin the quota of direct recruits will either be  reverted
\nor they will be absorbed in the vacancies within their quota
\nin the facts and circumstances of the case; and (vi) as long
\nas the quota rule remains, neither promotees can be allotted
\nto  any of the substantive vacancies of the quota of  direct
\nrecruits nor direct recruits can be allotted to\t promotional
\nvacancies; and (vii) quotas which are fixed are\t unalterable
\naccording  to exigencies of the situation. They can only  be
\naltered by fresh determination of quotas under the  relevant
\nrules.\tOne group either on the ground that the\t quotas\t are
\nnot  filled  up or that because there had been a  number  in
\nexcess\tof the quota the same should be\t absorbed  depriving
\nthe other group of quota.”\n<\/p>\n
    It\tthus emanates from the said Judgment of\t this  Court
\nthat when promotion has been made in excess of the quota the
\npromotees  who\thave been promoted in the  quota  of  direct
\nrecruits  will\tbe pushed down and will be absorbed  in\t the
\nquota  of promotees of subsequent years and the\t direct\t re-
\ncruits made within their quota would be deemed to be  senior
\nto those promotees recruited in excess of their quota.
\n    In\tthe case of A. Janardhana v. Union of India &  Ors.,
\nAIR<\/a>  1983 SC 769 the question of determination of  seniority
\nbetween the direct recruits to the post of Assistant  Execu-
\ntive  Engineer\t(AEE)  and the promotees from  the  post  of
\nAssistant  Engineer  fell for  consideration.  The  Military
\nEngineer  Services Class I (Recruitment, Promotion and\tSen-
\niority)\t Rules\t(1949  Rules for Short)\t were  brought\tinto
\noperation  on or from 1.4. 1951. Under Rule 3 and 4 of\t1949
\nRules the recruitment to MES Class I was to be made from two
\nsources,  namely, by competitive examination  in  accordance
\nwith  Part  II of the Rules and by promotion  in  accordance
\nwith Part III of the Rules. Rule 4 prescribed a quota of 9:1
\nbetween\t direct\t recruits and promotees.  During  the  years
\n1962,  1963 and 1964 particularly and until the\t year  1969,
\nthe  Class I Service Rules were not statutory in  character.
\nThe  Union  Government relaxed the Rules both in  regard  to
\nrecruitment  by interview and in regard to the quotas  fixed
\nby  the\t Rules\tfor direct recruitment\tand  recruitment  by
\npromotion to Class I Service. The 1949 Rules and the  subse-
\nquent  amendments  thereto  acquired  statutory\t flavour  in
\ncharacter  by incorporation only in 1969 and till then\tthey
\nwere mere administrative instructions.\n<\/p>\n
202<\/span><\/p>\n
    It\twas  due to emergency situation in  .the  market  of
\nrecruitment of engineers between 1959 and 1969 and the\tdire
\nneed of urgently recruiting engineers which led the  Govern-
\nment  to  make\trecruitment m relaxation of  quota  rule  by
\nforegoing the competitive examination and promoting subordi-
\nnate  ranks  to\t Class i Service.  Appellant  and  similarly
\nsituated persons were thus promoted to meet the dire need of
\nservice in relaxation of the quota rule.\n<\/p>\n
    It has been observed by this Court that when recruitment
\nis  from  two  independent sources,  subject  to  prescribed
\nquota, but the power is conferred on the Government to\tmake
\nrecruitment in relaxation of the rules any recruitment\tmade
\ncontrary  to  quota rule would not be invalid unless  it  is
\nshown that the power of relaxation was exercised mala  fide.
\nIt  was also observed that the recruitment made to meet\t the
\nexigencies of service by relaxing the quota rule the  promo-
\ntion in excess of quota would be valid. It had further\tbeen
\nobserved that once the quota rule was fully relaxed  between
\n1959  and 1969 to suit the requirements of service  and\t the
\nrecruitment  made  in relaxation of the quota rule  and\t the
\nminimum\t qualification rule for direct recruits was held  to
\nbe  valid,  no effect could be given to the  seniority\trule
\nenunciated  in Para 3(iii) of Appendix V of the 1949  Rules,
\nwhich  was wholly interlinked with the quota rule and  could
\nnot  exist apart from it on its own strength. This  was\t im-
\npliedly accepted by the Union Government and was implicit in
\nthe seniority lists prepared in 1963 and 1967-68 in  respect
\nof AEE, because both those seniority lists were drawn up  in
\naccordance  with  the  rule of seniority  provided  in\tArmy
\nInstruction No. 241 of 1950.\n<\/p>\n
    It has been further held that there was no justification
\nfor redrawing the seniority list affecting persons recruited
\nor promoted prior to 1969 when the rules acquired  statutory
\ncharacter. Therefore, the 1974 seniority list was liable  to
\nbe  quashed and the two 1963 and 1967 seniority\t lists\tmust
\nhold the field.\n<\/p>\n
In  Shri O.P. Singla and another v. Union of India  &  Ors.,
\nAIR 1984 SC 1595 the question of inter se seniority  between
\npromotees  and\tdirect recruits came  up  for  consideration
\nbefore this Court. Delhi Higher Judicial Service was consti-
\ntuted  on May 15. 1971. It was governed by the Delhi  Higher
\nJudicial  Service  Rules,  1970. Rule 7\t provides  that\t the
\nrecruitment  to\t the service will be made from\ttwo  sources
\ni.e. by promotion on the basis of selection from members  of
\nthe Delhi Judicial Service, who have completed not less than
\nten  years of service in the Delhi Judicial Service  and  by
\ndirect Recruitment from the Bar
\n203<\/span>
\nprovided  that not more than 1\/3rd of the substantive  posts
\nin the service shall be held by direct recruits. The senior-
\nity  of direct recruits vis-a-vis promotees shall be  deter-
\nmined  in  the order of rotation of  vacancies\tbetween\t the
\ndirect recruit and promotees based on the quota of vacancies
\nreserved for both categories. Rule 7 provided that the first
\navailable vacancy will be filled by a direct recruit and the
\nnext two vacancies by promotees and so on.\n<\/p>\n
    It\thas been observed that persons who are appointed  or
\npromoted on an ad hoe basis or for fortuitous reasons or  by
\nway  of a stop-gap arrangement cannot rank for\tpurposes  of
\nseniority  with\t those who are appointed to their  posts  in
\nstrict\tconformity  with the rules of  recruitment,  whether
\nsuch latter class of posts are permanent or temporary.
\n    It has also been observed that persons belonging to\t the
\nDelhi Judicial Service who are appointed to temporary  posts
\nof  Additional\tDistrict and Sessions Judges on\t an  ad\t hoc
\nbasis  or  for fortuitous reasons or by way  of\t a  stop-gap
\narrangement,  constitute a class which is separate and\tdis-
\ntinct  from those who are appointed to posts in the  Service
\nin strict conformity with the rules of recruitment. In\tview
\nof this, the former class or promotees cannot be included in
\nthe list of seniority of officers belonging to the Service.
\n    It has, therefore, been held that those who are appoint-
\ned to the post of Additional District and Sessions Judges on
\nad  hoc\t basis for fortuitous reasons cannot be\t taken\tinto
\nconsideration in determining the seniority of the members of
\nthe Service.\n<\/p>\n
    In\tthe  case of G.S. Lamba & Ors. v. Union of  India  &
\nOrs.,<\/a>  [1985] 3 SCR 431 the question of inter  se  seniority
\nbetween direct recruits and promotees cropped up for consid-
\neration before this Court. The Indian Foreign Service Branch
\n‘B’  was  constituted in 1956. The  statutory  rules  Indian
\nForeign\t Service Branch ‘B~ (Recruitment,  Cadre,  Seniority
\nand  Promotion) Rules, 1964 were enforced on or from May  6,
\n1964. It provided for recruitment from three sources:-
\n(1) direct recruitment on the result of a competitive exami-
\nnation held by the Union Public Service Commission
\n(2)  substantive  appointment  of persons  included  in\t the
\nselective  list promoted on the basis of a limited  competi-
\ntive examination held by the Union Public Service Commission
\nand
\n204<\/span>
\n(3) Promotion on the basis of seniority
\n    By\ta notification dated February 12, 1975, Rule 13\t was
\namended\t to provide that recruitment to the three  different
\nsources of integrated Grades II and III to be:
\n(1)  1\/6th of the substantive vacancies to be filled  in  by
\ndirect recruitment
\n(2)  331\/3  % of the remaining 5\/6 of the  vacancies  to  be
\nfilled\ton the basis of results of the\tlimited\t competitive
\nexamination and
\n(3) the remaining vacancies to be filled in by promotion  on
\nthe basis of seniority.\n<\/p>\n
    The petitioners were selected by the Union Public  Serv-
\nice  Commission\t on the basis of the merit obtained  at\t the
\nexamination  of\t Assistants conducted for  the\tpurpose\t for
\nappointment  to\t the post and allocated to the\tMinistry  of
\nExternal  Affairs.  After the initial  constitution  of\t the
\nservice\t of 1956, they were offered an option  whether\tthey
\nwould  like to join the I.F.S. Branch ‘B’ in grade IV.\tThey
\nopted  and were inducted into the service. Later  they\twere
\npromoted  between 1976 and 1979 from Grade IV to  the  inte-
\ngrated Grades II and III. The Government of India  published
\na  seniority list of the integrated Grades II and III as  on
\nJune 25, 1979 and before objections taken by the petitioners
\nto  the\t seniority list were dealt with,  another  seniority
\nlist was published on June 30, 1983. This list was  assailed
\nby  the petitioners on the ground that it is  discriminatory
\nand  is consequently violative of Article 14 and 16  of\t the
\nConstitution. This Court upheld their contention and quashed
\nthe  seniority\tlist. The Union Government was\tdirected  to
\nprepare\t a fresh seniority list. In the instant case  direct
\nrecruitment  had not been presumably made in excess  of\t the
\nquota and the promotees were appointed to substantive vacan-
\ncies in the service and they had been holding the posts\t for
\nover  6 to 8 years. In the seniority list that was  prepared
\nthe  direct  recruits who were promoted much  later  to\t the
\npromotees in excess of their quota were shown senior to\t the
\npromotees,  it\thas been held that once the  promotees\twere
\npromoted  regularly  and they have been\t officiating  for  a
\nnumber\tof years the continuous officiation confers on\tthem
\nan  advantage  of being senior to the later  recruits  under
\nRule  21(4). It has been further observed that if there\t has
\nbeen an enormous departure from the quota fixed by  exercis-
\ning the powers to relax, the quota rule was not adhered\t to,
\nthe rota rule for inter se seniority as prescribed in
\n205<\/span>
\nRule  25(i) and (ii) cannot be given effect. In the  absence
\nof  any other valid principle of seniority it has been\theld
\nthat  continuous officiation in the cadre, grade or  service
\nwill provide a valid principle of seniority.
\n    It\thas been held that where the direct recruitment\t had
\nnot  been made according to the quota for years\t and  promo-
\ntions  have been made in excess of the quota and the  promo-
\ntees were appointed in the vacancies of the direct  recruits
\nand  work  for a number of years, the quota rule  cannot  be
\ngiven effect to and the promotees cannot be shown as  junior
\nto  the\t direct recruits in the seniority  list.  Continuous
\nofficiation  in the cadre, grade or service will  provide  a
\nvalid principle of seniority. Seniority List was, therefore,
\nquashed and set aside.\n<\/p>\n
    In\tthe case of Narendra Chadha v. Union of\t India,\t AIR<\/a>
\n1986  SC  638  there was a quota rule  for  filling  up\t the
\nvacancies from two sources–by direct recruitment as well as
\nby promotion. The direct recruitment was not made for number
\nof  years and the posts of direct recruits were filed up  by
\npromotion.  The\t promotees were allowed to function  in\t the
\npromoted  posts\t for 15 to 20 years. Thereafter\t direct\t re-
\ncruitment  was\tmade. There was a rule\twhich  empowers\t the
\nGovernment  to relax the quota. It was held that whenever  a
\nperson\tis appointed in a post without following  the  rules
\nprescribed  for that appointment to the post, he should\t not
\nbe  treated  as a person regularly appointed to\t that  post.
\nSuch  a person may be reverted from that post but in a\tcase
\nwhere persons have been allowed to function in higher  posts
\nfor  15\t to 20 years without due deliberation  it  would  be
\nunjust\tto  hold that they had no claim to  such  posts\t and
\ncould be reverted unceremoniously or treated as persons\t not
\nbelonging  to the service at all particularly where  govern-
\nment  is endowed with the power to relax the rules to  avoid
\ninjustice.  It has been held by this Court  that  continuous
\nofficiation of the promotees could be justified on the basis
\nof  the rule 16 on the presumption that the  Government\t had
\nrelaxed\t the rules and appointed the promotees to the  posts
\nin question to meet the administrative requirements.
\n    In the instant case undoubtedly, the Government made  an
\norder  on 20.3.1974 for reservation of 5% of the  posts\t for
\nrecruitment by promotion from among selected confirmed Upper
\nDivision  Assistants  of the Commissioner’s Office  and\t the
\nselected  confirmed Head Clerks of the District\t Excise\t Of-
\nfices.\tPursuant  to  that order, the  Government  later  on
\npublished  a Notification S.O. 411 in the Bihar\t Gazette  on
\nMarch  31,  1975 stating therein about the quota  of  5%  of
\ntotal  vacancies reserved for the promotion of the  selected
\nUpper Division
\n206<\/span>
\nAssistants to the post of Inspectors of Excise. It has\tbeen
\nurged  by  the learned counsel appearing on  behalf  of\t the
\nrespondents that the respondent Nos. 3 and 4 being  promoted
\nand appointed as Inspectors of Excise from the 75% quota for
\npromotion  from selected SubInspectors of Excise  in  April,
\n1974  they cannot be shown as junior to the  appellants,  in
\nthe seniority list inasmuch as the appellants were appointed
\non  7.5.1976. It has been further submitted in this  connec-
\ntion  that  the appointment of the appellants  on  promotion
\nfrom the 5% quota of the vacancies available in 1974  cannot
\nbe  made. It has also been submitted that  the\tNotification
\nreferring  to the 5% quota for promotion of  Upper  Division
\nAssistants  cannot  be deemed to be a quota  in\t respect  of
\nvacancies  for\tthe year 1974-75. As such  quota  cannot  be
\nenforced  unless  and until the reservation of 5%  quota  of
\nvacancies is published in the official gazette for  informa-
\ntion of the public. In support of this submission the  deci-
\nsion  in  Harla v. State of Rajasthan,<\/a> [1952]  SCR  110\t was
\ncited  at the Bar. In this case on 11.12. 1923\tthe  counsel
\npassed\ta resolution which purported to enact a\t law  called
\nThe  Jaipur Opium Act and the only question was whether\t the
\nmere  passing  of  the resolution  without  promulgation  or
\npublication in the Gazette or by other means to make the Act
\nknown  to  the public was sufficient to make it\t a  law\t and
\nenforce the same. There was an amendment of Section 1 of the
\nJaipur Opium Act to the effect that it shall came into force
\nfrom  1.9.1924. The Act was never published in the  Gazette.
\nIt was held that the Jaipur Laws Act 1923 which required the
\nwhole  of the Act to be published instead of publication  of
\nonly one section, will not validate the same. In the instant
\ncase, the Government made an order reserving 5% of the total
\nvacancies  in a year for being filled in by  promotion\tfrom
\nthe  selected Upper Division Assistants and Notification  to
\nthat  effect  was published in the Gazette in  March,  1975.
\nThis  Notification  related to the vacancies  for  the\tyear
\n1974-75\t i.e. the year ends on March 31, 1975. It is  perti-
\nnent  to  refer\t to the specific averments  made  by  Excise
\nCommissioners,\tGovernment  of Bihar, on behalf of  the\t re-
\nspondent Nos. 1 and 2–The State of Bihar and  Commissioner-
\ncum-Secretary, Excise and Prohibition, Government of Bihar.
\nIt has been stated in paragraph 3 of the Counter Affidavit:
\n“That  the promotion of the petitioners were caused  in\t the
\nQuota of 5% which was given to the petitioner by a Notifica-
\ntion  dated 31.3. 1975 which is annexed in the\tpetition  as
\nAnnexure-A but due to the noting given in the File,  firstly
\nby the Member of Board of Revenue on 20.3. 1974 and the
\n207<\/span>
\nsame has caused promotion to the petitioner which should not
\nhave  been done unless there is a notification in effect  to
\nthe noting given by the State Government.”\n<\/p>\n
Noting given by the Board is reproduced herein below:
\n\t quota\tin  the cadre of Excise-Inspector  is  given
\nfrom  the cadre of confirmed Upper Division  Clerks,  Excise
\nCommissioner’s office and confirmed Head Clerks of  District
\noffices.”\n<\/p>\n
It has been further stated that in the year 1976 the  Secre-
\ntary of the Commission, Excise Department gave a note  whose
\nEnglish translation is given below:\n<\/p>\n
“As stated at page 22 of the notesheet that the pay scale of
\nUpper  Division Assistants is more than the Head Clerks\t and
\ntherefore  they will rank senior on that basis. So first  of
\nall  the question of promoting Sarvasri Awadh  Prasad  Singh
\nand Ram Vriksh Pd. Singh’s against the vacancy at Roster  67
\nand  68 has to be considered. The question of  promotion  of
\nSarvasri Vidyadhar Ghatwari and Devendra Narain Pd. would be
\nconsidered  against  future vacancies and  therefore  it  is
\nproposed to keep their names in the waiting list
\n\t\t\t\t   Sd\/-Ravikishore Narain
\n\t\t\t\t     26.4. 1976”\n<\/p>\n
It has been further stated in paragraph 5 of the said  affi-
\ndavit  that  the Excise Commissioner accordingly  passed  an
\norder in the year 1976, which is dated 5.5. 1976,  promoting
\nthe  petitioner\t in accordance with the quota.\tThe  English
\ntranslation of the same is as follows:\n<\/p>\n
      ” So  far the question of promotion of Assistants\/Head
\nClerks is concerned the rule has been framed in 1974 and for
\nthe  first time promotion is being given on this account.  I
\nhave carefully gone through the above rules and from perusal
\nof the file it would appear that only 5% of the total vacan-
\ncies  shall be filled in by the promotion. In the rule,\t the
\nword  2%  at  least” has come perhaps  inadvertantly  in  at
\nleast  5%.”.There  is no such mention in the file.  On\tthis
\nbasis,\tas has been mentioned in the note of  the  Secretary
\nonly two posts have to be filled up from the quota of
\n208<\/span>
\nAssistants. So far as the persons by whom the filling up  of
\nthe  vacancies are concerned, I agree with the note  of\t the
\nSecretary marked ‘Kh’ in the notesheet i.e. at present Awadh
\nPrasad Singh and Ram Brikh Pd. Singh should be promoted. The
\nname  of  Vidyadhar Pd. and Devendra Narayan Pd.  should  be
\nkept in the waiting list.”\n<\/p>\n
    It has been further stated that the Notification  giving
\n5% quota which is annexed in the petition as Annexure-A from
\nthe grade of Assistant\/Head Clerks came into picture only on
\n31.3.1975 on the basis of order made by Government in March,
\n1974.  However, the petitioners were promoted on the  vacan-
\ncies  caused in the year 1974-75, because the  decision\t was
\ntaken in the year 1974 itself and accordingly the Department
\ncarried\t out the same and accordingly a Gradation  List\t was
\nprepared.\n<\/p>\n
    A counter affidavit has also been filed on behalf of the
\nrespondent  Nos.  6 & 7, that is, promotees,  Inspectors  of
\nExcise. It has been stated in paragraph 6 that the rules  of
\nrecruitment of Inspectors of Excise were modified by Notifi-
\ncation\tNo. 411 dated 31.3. 1975. There was no provision  in
\nthe  Excise Act and Rules for appointment of  Inspectors  of
\nExcise\tfrom  among selected  Assistants  of  Commissioner’s
\noffice and Head Clerks of the District Excise offices  prior
\nto  this Notification. This Notification for the first\ttime
\nrequired the Department of Excise to fill at least 5% of the
\ntotal vacancies by promotion from among the confirmed  Upper
\nDivision  Assistants and selected Head Clerks. The  respond-
\nents were promoted as Inspectors of Excise from\t Sub-Inspec-
\ntors of Excise vide Order 2091 dated 24.4.1974 in their\t own
\nquota and joined the promotional posts on 1.5. 1974. It\t has
\nalso been stated that the appellants were appointed  Inspec-
\ntors  of  Excise in the year 1976 and joined on\t 7.5.  1976.
\nApparently there was no quota for appointment of  Inspectors
\nof Excise from among Assistants and Head Clerks in the\tyear
\n1974  and  the\taverments made by the  respondent  State  or
\nappellants  to\tthis  effect is mala  fide,  ridiculous\t and
\nfalse.\tThe appellants being appointed in the year  1976  by
\nvirtue\tof  the Notification which came\t into  existence  on
\n31.3.  1975  cannot  claim this vacancy of  1974  and  hence
\nseniority  allotted to them by the respondent-State  was  in
\nflagrant,  violation of law laid down by the  Supreme  Court
\nand  hence the High Court rightly allowed the  C.W.J.C.\t No.
\n4097\/85 against the appellants herein.\n<\/p>\n
    In\tthe supplementary rejoinder affidavit on  behalf  of
\nthe  appellants it has been stated in paragraph 4  that\t the
\nState of Bihar has
\n209<\/span>
\nproved the appellants, right to promotion on a vacancy\tthat
\noccurred  in 1974 by the following clear admissions made  by
\nthe State of Bihar in its counter affidavit.
\n“So  far  the question of promotion of\tAssistants  or\tHead
\nClerks\tis concerned, the rule has been framed in  1974\t and
\nfor  the  first\t time  promotion  is  being  given  on\tthis
\naccount.”\n<\/p>\n
“However,  the\tpetitioners were promoted on  the  vacancies
\ncaused\tin the year 1974-75, because the decision was  taken
\nin  the\t year  1974 itself and\taccordingly  the  Department
\ncarried out the same.”\n<\/p>\n
It  has also been stated in paragraph 5 of the said  Rejoin-
\nder:\n<\/p>\n
“That the Government who was clearly conscious of the rights
\ncreated by the decision to amend the Rules taken in 1974 and
\nin  accordance with the decision a Notification\t was  issued
\nlater in March 1975. But the ministerial failure to make the
\nNotification conformed to the decisions taken in 1974 is  no
\nmore  than  a clerical error and  the  Government  therefore
\nrightly\t promoted the petitioner within their quota  against
\nthe vacancies occurred in 1974 by its Order.”
\n1t  has\t been  further stated in paragraph 10  of  the\tsaid
\nrejoinder:\n<\/p>\n
“That there is a provision of seniority of Excise  Inspector
\nin  Rule  6 of Recruitment Rules vide  notification  no.  54
\ndated  3.1.1936 for Excise Inspector. It is  clearly  stated
\nthat the seniority of all Inspectors on confirmation will be
\ndetermined  in accordance with Government Order\t No.  6509\/A
\ndated 12.12.1934 which is still in force. Besides there\t are
\nalso  Government instructions with regard to seniority\tsuch
\nas letter No. 15784 dated 26.8.1972. The High Court ought to
\nhave considered the Rules of seniority when the case related
\nto the seniority of Excise Inspector.”\n<\/p>\n
In paragraph 11 it has been further averred:
\n“That  in view of the clear admission of the Government\t the
\npetitioners  are entitled to the benefit of  promotion\twith
\neffect from as against the vacancies of 1974 as fixed by the
\nGovernment  and\t the High Court order is liable\t to  be\t set
\naside and the appeal may be allowed.”\n<\/p>\n
210<\/span><\/p>\n
    It\tthus  appears from a perusal  of  the  Affidavit-in-
\ncounter sworn by the Commissioner of Excise on behalf of the
\nState of Bihar, the respondent Nos. I and 2, that the  order
\ncreating 5% of the vacancies for promotion from the posts of
\nconfirmed Upper Division Assistants and selected Head Clerks
\nhave been made by the Notification dated 31.3. 1975,  though
\naccording  to  the noting given in the File by\tthe  Member,
\nBoard  of Revenue on 20.3. 1974 on the basis of the  Govern-
\nment Order the petitioners (appellants of this appeal)\twere
\npromoted  in the vacancies of the year 1974-75 by  order  of
\nthe  Excise  Commissioner  dated  5.5.1976.  Therefore,\t the
\nargument  on behalf of the respondents in this\tappeal\tthat
\nthe appellants were promoted against the 5% quota in respect
\nof the vacancies of the year 1975-76 is not sustainable. The
\nappellants  having been appointed in the quota of 5% out  of
\nthe vacancies of 1974-75 are entitled to be shown as  senior
\nin  the\t gradation list prepared by the Government  on\t9.1.
\n1986.  We have already mentioned hereinbefore that  the\t re-
\nspondent  Nos. 3 and 4 were promoted from the selected\tSub-
\nInspectors  Excise,  that is, in the 5% quota  reserved\t for
\npromotion  from the Upper Division Assistants of the  Excise
\nDepartment.  In\t accordance with the decisions\trendered  by
\nthis  Court in the case of V.R. Badami v. State\t of  Mysore,<\/a>
\n(supra)\t the  respondent Nos. 3 and 5 who were\tpromoted  to
\nofficiate  in the 5% quota of Upper Division Assistants\t and
\nconfirmed  Head Clerks are to be pushed down as soon as\t the
\nappellants  have  been recruited in the said  quota  to\t the
\nposts of Inspectors of Excise in 1976 inasmuch as the promo-
\ntion  though not illegal is irregular and the promotees\t are
\nto  be accommodated in the vacancies of subsequent years  in
\ntheir  quota. 1t is only in the case of Narendra Chandha  v.
\nUnion of India, (supra) exception was made by this Court  to
\nthe  aforesaid\tdecision on the ground that  the  quota\t was
\nbroken\tdown or not adhered to as there was  no\t recruitment
\nfrom  the quota of direct recruits for a period of 15 to  20
\nyears  and  the promotees were allowed to officiate  in\t the
\nquota  of  direct  recruits for a long period of  15  to  20
\nyears,\tin such circumstances, it was held that in  view  of
\nRule 16 empowering the Government to relax the quota  rules,
\nthe  promotees\tofficiating in the vacancies of\t direct\t re-
\ncruits\twere presumable permitted to do so in relaxation  of
\nthe quota as such the seniority will be determined from\t the
\ndate  of  their continuous officiating in  the\tsaid  posts.
\nSimilar\t view  has  been  expressed  in\t G.S.  Lamba’s\tcase
\n(supra).  In the instant case there was no rule for  relaxa-
\ntion  of the quota nor the respondent Nos. 3 and 4 who\twere
\npromoted from selected Excise Sub-Inspectors to the  Inspec-
\ntors of Excise in the 5% quota of Upper Division  Assistants
\nin 1974 officiated till 7.5.1976 when the appellants  joined
\nas  Inspectors of Excise from their 5% quota. It  cannot  be
\nsaid in such circumstances
\n211<\/span>
\nthat the quota has not been filled up for a long period\t nor
\ncan it be said that the respondents 3 and 4 who were promot-
\ned  in\texcess of their quota have worked as  Inspectors  of
\nExcise for long time and as such the respondents Nos. 3\t and
\n4 cannot claim to be seniors to the appellants. Moreover, it
\nis evident from the affidavit of the Commissioner of  Excise
\non behalf of the State of Bihar that the 5% quota of  vacan-
\ncies  were  brought into being by the Board  of\t Revenue  of
\nMarch 20, 1974 though there was delay in notifying the\tsame
\nin  the Gazette till 31.3. 1975. Nevertheless, it  has\tbeen
\nsubsequently averred that the appellants were promoted\tfrom
\nthe said 5% quota of vacancies of the year 1974-75.
\n    In these circumstances on a conspectus of the  decisions
\nreferred to hereinbefore as well as of the Government  Order
\nreserving 5% quota of vacancies on 20.3. 1974 and subsequent
\nNotification  of the same on 31.3. 1975 the only  conclusion
\nthat  follows is that the appellants being promoted  as\t In-
\nspectors  of  Excise from the 5% quota of vacancies  of\t the
\nyear  1974-75,\tthey were rightly shown as  seniors  in\t the
\ngradation list prepared by the Government on 9.1. 1986.\t The
\nfindings of the High Court to the effect that the appellants
\nwere not promoted in the 5% quota of vacancies for the\tyear
\n1974-75\t is  wholly wrong. Accordingly, the  gradation\tlist
\nprepared  by the Government on 9.1. 1986 showing the  appel-
\nlants  as  seniors to the respondents are  quite  legal\t and
\nvalid  and so the same is upheld. We, therefore,  set  aside
\nthe judgment and order passed by the High Court in  C.W.J.C.
\nNo.  4097\/ 85. In the facts and circumstances of  the  case,
\nthere will be no order as to costs.\n<\/p>\n
S.B.\t\t\t\t\t\t    Petition\nallowed.\n212<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Awadh Prasad Singh And Ors vs State Of Bihar And Ors on 27 March, 1990 Equivalent citations: 1990 AIR 1256, 1990 SCR (2) 193 Author: B Ray Bench: Ray, B.C. (J) PETITIONER: AWADH PRASAD SINGH AND ORS. Vs. RESPONDENT: STATE OF BIHAR AND ORS. DATE OF JUDGMENT27\/03\/1990 BENCH: RAY, B.C. (J) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-152213","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nAwadh Prasad Singh And Ors vs State Of Bihar And Ors on 27 March, 1990 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/awadh-prasad-singh-and-ors-vs-state-of-bihar-and-ors-on-27-march-1990\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Awadh Prasad Singh And Ors vs State Of Bihar And Ors on 27 March, 1990 - 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