B.S. MURTHY & ORS versus A. RAVINDER SINGH & ORS. on 15 March 2022

[2022] 19 S.C.R. 1

B.S. MURTHY & ORS.

v.

A. RAVINDER SINGH & ORS.

(Civil Appeal No. 3968 of 2009)

MARCH 15, 2022

[UDAY UMESH LALIT, HEMANT GUPTA ANDS. RAVINDRA BHAT, JJ.]

Service Law — Central Excise and Land Customs Group-CRecruitment Rules, 1979 — Determination of inter-se seniority –Recruitment to the post of Inspectors of Central Excise was fromtwo channels : Direct recruitments and promotion from in servicecandidates – The ratio between direct recruit inspectors (DRI) andpromoted inspector (PRI) was 3:1 – The inter se seniority wasgoverned by an office memo dated 22.12.1959 – In view of theexperience, the 1959 OM was changed, another OM was issued,on 07.02.1986 – Five promoters promoted in 1983-1984 filed anapplication challenging the inter se seniority list dated 08.07.1985on the ground that the length of their continuous service was nottaken into consideration while fixing seniority – CAT directed thedepartment to recast seniority in accordance with the 1986 OM –CAT referred the batch of matters to a Full Bench, on the issue as towhether 1986 OM was prospective or retrospective – Full Bench byits order clarified that 1986 OM only operated prospectively from1.3.1986 – Based on the findings of tribunal seniority list of 1993was quashed – The cadre controlling authority circulated a tentativeseniority list on 01.01.2022 which was finally published on 7.8.2002– The list was challenged by PRI and the CAT allowed theapplications and set aside the seniority list – Central governmentand DRI filed writ petition before the High Court – High court heldthat the vacancy register had no relevance for the purpose ofpromotion of in-service candidates and such promotions could beonly in proportion to the quota, based on indents placed by thedepartment with staff selection Board for direct recruitment – Lengthof continuous service cannot be counted for the purpose of seniority– It upheld the impugned seniority list dated 22.07.2002 – In appealby PRIs, the main issue was regarding the application of Clauses 4and 5 of the OM of 1986, whether the ratio of the PRIs has to be

A

B

C

D

E

F

GH

A

B

C

D

E

F

GH

Adrawn with respect to the indented vacancies for DRIs – Held: Noappointee from any one channel (direct recruits or promotees) canlay claim to seniority from a date before her or his appointment –Para 5 of the 1986 OM was meant to cater to a contingency that isof underreporting direct recruit vacancies to the public servicecommission which resulted in an unfair advantage to promoteesBwho would “steal a march” over such direct recruits, appointedlater – It was in such contingencies, that is, of under-reportingvacancies, that the consequence of deeming promotions to be ad-hoc could be resorted to – Materials on record indicate thatpromotional vacancies did exist, at the relevant period, there was aCban on direct recruitment – During that period, no requisitions weremade to the SSC for filling direct recruit vacancies – However, HighCourt was wrong in concluding that by virtue of Para 5 of the 1986OM the promotion made during the same period has to be treatedas in excess of the quota, because they were not in proportions tothe requisition for direct recruitment – This view taken by the HighDCourt is fallacious and it equates executive policy of not fillingvacancies, due to financial or other compulsions with deliberateunderreporting – In the Instant case, the direct recruitment throughthe SSC was not resorted to because of a ban, and not due to under-reporting – Thus the contingency envisaged under Para 5 neverEarose – Not only the were promotions made within the quota, andwere regular, there were regular vacancies, within the promote quota– No excess promotions took place during the period 1983 and1991 – Indents/requisitions placed with, the SSC for the recruitmentof DRIs were for a part of the vacancies and not for the exact 75%of the actual vacancies available in each year – The date ofFappointment of direct recruits the date for counting seniority – It isnot from the date of receipt of the dossiers from the recruitingauthorities or the date of recommendation – Resultantly seniorityof direct recruits appointed after 01.03.86 has to be revised onlyfrom the date of their respective appointments but not earlier toG01.03.1986 as was done in the impugned seniority list – Thosepromoted ad hoc basis in any year in the vacancies available tothem were eligible for seniority from the date of their continuousofficiation, if - they were promoted within their eligible quota ofthat year under the Recruitment Rules – The consequential action,by way of drawing and publishing a final seniority list, inH

accordance with the present findings, shall be completed within threemonths.

Allowing the appeals by PRIs, the Court

Held: 1. The main issue before this Court is regardingapplication of Clause 4 and 5 of the OM of 1986 in the backgroundof the 1979 Rules, which provide for 75% by direct recruitmentand 25% by promotion. The 1986 OM introduced the principleof rotation of quota along with bunching rule. The question inthis case is whether the ratio of the PRIs has to be drawn withrespect to the indented vacancies for the DRIs. The fall out ofthis mode of drawing the list is that if in a particular year thereare less number of indented vacancies for DRIs or the vacanciesare under reported the PRIs lose their right of seniority as givenunder 1979 Rules. [Paras 33, 34 and 35][25-B-D, F-G]

2. In two judgments (Aghore Nath Dey and Suraj PrakashGupta) the promotions were made in disregard of the rules; evenin excess of their quota, and against direct recruit quota. InAghore Nath Dey, the promotee’s claim was to seniority prior totheir regularization – which was achieved through a special rule,inserted by way of amendment. The claim was that seniority shouldbe given to the promotees, over the direct recruits, who hadbeen appointed earlier. In Suraj Prakash Gupta, promotions weremade in excess of the quota and as against posts that shouldhave fallen due to direct recruits, in their quota. The ratio in thesedecisions is inapplicable, because there is nothing to indicatethat the promotees (who were regularized in 1988) exceeded theirquota. Furthermore, the department’s pleading, specificallyadmits that the promotees were appointed against vacanciesavailable to the PRI quota. [Para 51][31-B-D]

3. The court, in K.V. Subba Rao & Ors. v. Government ofAndhra Pradesh held that, promotion and seniority shall bereckoned from the date of appointment, not retrospectively fromthe date when the vacancy arose. The court, in M. Subba Reddy vA.P. State Road Transport Corporation considered a situationwhere departmental candidates were given ad-hoc promotionsagainst direct recruit vacancies when a ban on direct recruitment A

BC

D

E

F

G

H

Awas in force. Upon later regularization (of such promotions) itwas contended that the regularizations related back and that thepromotees were to be accorded seniority over direct recruits,who entered the service. The court rejected this argument. Stateof Uttaranchal & Ors. v Dinesh Kumar Sharma was a decision,where this court held that the seniority is to be reckoned notBfrom the date when the vacancy arose, but from the date on whichthe appointment is made to the post. [Paras 52, 53 and 54][31-D-E; 32-D, F-G]

4. No appointee from any one channel (direct recruits orpromotees) can lay claim to seniority from a date before her orChis appointment. Para 5, (which has been the basis of the HighCourt judgment, to hold that the PRIs were in excess of theirquota) was meant to cater to a contingency that is of underreporting direct recruit vacancies to the public service commission(in this case, the SSC) which resulted in an unfair advantage toDpromotees who would “steal a march” over such direct recruits,appointed later. It was in such contingencies, that is, of under-reporting vacancies, that the consequence of deeming promotionsto be ad-hoc could be resorted to. The materials on record indicatethat promotional vacancies did exist, at the relevant period. Therewas a ban on direct recruitment. The reasons for the ban are nowEobscure; but the fact remains that it was in force for six years(1984-90). During this period, undoubtedly, no requisitions weremade to the SSC for filling direct recruit vacancies. However,the linear logic, applied by the High Court, to conclude that byvirtue of Para 5 of the OM of 1986, the promotions made duringFthe same period had to be treated as in excess of the quota,because they were not in proportion to the requisitions for directrecruitment. This view is plainly fallacious, because it equatesexecutive policy -of not filling vacancies, due to financial orother compulsions with deliberate underreporting, meant to result in unfair advantage to the PRIs. In the present case,Gdirect recruitment through the SSC was not resorted tobecause of a ban, and not due to under-reporting. Thus, thecontingency visualized in Para 5 never arose. Not only werepromotions made within the quota, and were regular (as theywere preceded by proceedings of the Departmental PromotionHCommittee, and culminated in regularization, in 1988), there were in fact regular vacancies, within the promotee quota. [Paras 56,58 and 59][37-C; 38-C-D, G-H; 39-A-C]

5. The existence of PRI vacancies is a matter of objectivefact – as can be seen from the replies to the RTI queries. Thosevacancies fell to the share of PRIs, in terms of the 25% quotaearmarked for them, under statutory rules. In such circumstances,to say that those promoted, by resort to DPCs and regularizedlater, should be treated as ad-hoc promotees, would be contraryto express rules. In other words, by giving effect to Para 5 of the1986 OM, (and treating the promotions as ad-hoc for purposesof inter se seniority), the statutory rules are virtually given a gobye. It is also contrary to the stated objective sought to beachieved by Para 3 of the 1986 OM, which is to “present practiceof keeping vacant slots for being filled up by direct recruits of lateryears, thereby giving them unintended seniority over promotees whoare already in position, would be dispensed with.” The promotionsof the PRIs before the court therefore, have to be treated asregular. The court is of the opinion, that the reasoning of theHigh Court, in overlooking these aspects, is clearly in error. [Para60][39-D-F]

6. The other aspect – which the High Court ignored, is thata number of vacancies were filled from amongst the quota forcompassionate appointment, and the sports quota. They werenot reported to the SSC. In such circumstances, to treat thepromotees as exceeding the quota set apart for them (though asa matter of fact, they were accommodated within the quota) is notwarranted. Furthermore, the materials on record also show thatthough there was a ban on direct recruitment, it did not apply tovacancies which were to be filled up by way of promotion in termsof the Recruitment Rules. [Para 61][39-G-H; 40-A]

7. High Court fell into error in setting aside the order ofthe CAT, which is restored. It is held that (i) No excess promotionstook place during the period 1983 and 1991. 25% of the actualvacancies arising every year during that period were for thepromotees. No direct recruit vacancy for any year was filled bypromotees. (ii) Indents/requisitions placed with, the SSC for the AB

C

D

EF

G

6SUPREME COURT REPORTS

Arecruitment of DRIs were for a part of the vacancies and not forthe exact 75% of the actual vacancies available in each year. (iii)The record does not bear out instances of suppression or under-reporting of vacancies available for direct recruits out of thepermanent cadre strength in any year, to help the promotees. Asa result, there is no justification for invoking para 5 of the O.M.Bof 1986. The department erroneously proceeded as if there wereexcess promotions by wrongly estimating the promotee quotaon the basis of the indents placed for direct recruitment; (iv)(a)The date of appointment of direct recruits the date for countingseniority- it is not from the date of receipt of the dossiers fromCthe recruiting authorities or the date of recommendation.Resultantly seniority of direct recruits appointed after 01.03.86has to be revised only from the date of their respectiveappointments but not earlier to 01.03.1986 as was done in theimpugned seniority list, (b) Direct recruits of 1992 could be givenseniority only in that year but not earlier, or in 1991 as wasDerroneously done in the impugned seniority list; (vi)Thosepromoted ad hoc basis in any year in the vacancies available tothem were eligible for seniority from the date of their continuousofficiation, if -they were promoted within their eligible quota ofthat year under the Recruitment Rules. The impugned judgmentEand order is set aside accordingly; the appeals by the PRIs areallowed in the terms of the findings of the Court. Theconsequential action, by way of drawing and publishing a finalseniority list, in accordance with the findings, shall be completedwithin three months. [Paras 62 and 63][40-B-H; 41-A, D]

FState of West Bengal & Ors v Aghore Nath Dey & Ors.(1993) 3 SCC 371 : [1993] SCR 2 919 ; Suraj ParkashGupta v State of J& K (2000) 7 SCC 561 : [2000] 3SCR 807 – held inapplicable.

Pawan Pratap Singh v. Reevan Singh (2011) 3 SCCG267 : [2011] 2 SCR 831; P. Sudhakar Rao & Ors. v U.Govinda Rao & Ors (2013) 8 SCC 693 : [2013] 13SCR 540 – relied on.

Devindra Prasad Sharma v State of Mizoram (1997) 4SCC 422 : [1997] 2 SCR 930 ; K.V. Subba Rao & Ors.

H

B.S. MURTHY & ORS. v. A. RAVINDER SINGH & ORS.

v. Government of Andhra Pradesh (1988) 2 SCC 201 :[1988] 2 SCR 1118 ; M. Nirmala v. State of AP (1986) 3SCC 647 : [1986] 3 SCR 507 ; M. Subba Reddy v. A.P.State Road Transport Corporation (2004) 6 SCC 729 :[2004] Supp 2 SCR 7 ; State of Uttaranchal & Ors. vDinesh Kumar Sharma (2007)1 SCC 683 : [2006] Supp10 SCR 1 ; AFHQ/ISOs SOs (DP) Association & Ors.V. Union of India (UOI) & Ors (2008) 3 SCC 331 :[2008] 2 SCR 1183 ; State of U.P. v. Ashok KumarSrivastava, (2014) 14 SCC 720 : [2013] 11 SCR 846;K. Meghachandra Singh v. Ningam Siro (2020) 5 SCC689 : [2019] 16 SCR 651; Dinesh Kumar Gupta & Otsv High Court of Judicature, Rajasthan 2020 SCCOnLine (SC) 420 : [2020] 10 SCR 497 ; Direct RecruitClass II Engg. Officers’ Assn. v. State of Maharashtra(1990) 2 SCC 715 : [1990] 2 SCR 900 – referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3968of 2009.

From the Judgment and Order dated 16.03.2005 of the High Courtof Judicature of Andhra Pradesh at Hyderabad in W.P. No. 11620 of2004.

With

A

B

C

D

E

F

G

H

ACivil Appeal Nos. 3967, 3969-3982 of 2009 and Writ Petition (C)No.1380 of 2020.

R. Basant, Sr. Adv., Dhruv Kapur, Yash Pal Dhingra, VijinderKumar, Maharishi Kaler, Ms. Ritika Sethi, Nithin Pavuluri, Rama KrishnaMeka, Dashrath Singh, Ms. Kirti Khangarot, Ms. Celesty Agarwal, Ms.BAmeya Thanvi, Dhruv Kapoor, Ms. Chitrangda Rashtrav, ManvendraSingh Rathore, Gp. Capt. Karan Singh Bhati, Advs. for the Appellants.

Ms. Madhavi Divan, ASG, V. Giri, R. Bala, A. K. Srivastava, Sr.Advs., Vadlamani Seshagiri, Adhish Rajvanshi, Siddharth Sachar,Shreyuss Shankar Joshi, Mrs. Bela Maheshwari, Ms. Sunita Rani Singh,CMs. Rekha Pandey, B. Krishna Prasad, B. V. Balaramdas, Advs. forthe Respondents.

The Order of the Court was passed by

S. RAVINDRA BHAT, J.

D1. The appellants are aggrieved by a common judgment and orderof the erstwhile unified High Court of Andhra Pradesh in several writpetitions.[1 ]The High Court allowed those writ petitions and set aside theorder[2] of the Central Administrative Tribunal (CAT) in a batch of tenoriginal applications. The CAT’s order had allowed those applicationsand directed proper fixation of inter se seniority of Inspectors of CentralEExcise, as between direct recruits and promotees. The promoteeinspectors are aggrieved, and are appellants before this court.

2. Recruitment to the posts of Inspectors of Central Excise isfrom amongst two channels- one, direct recruitment and the other, bypromotion from in-service candidates: in accordance with the provisionsFof the Central Excise and Land Customs Group-C Recruitment Rules,1979 (hereafter the “1979 Rules” or “the Rules”) framed by the Presidentof India under proviso to Article 309 of Constitution of India. The ratiobetween the direct recruits and the promotions -from amongst variousin-service cadres on the ministerial line- was fixed under the Rules at75%:25% (or 3:1). The Rules however, did not provide guidance forG

H

1 W.P.Nos.11620/2004, 10601/2004; 13525/ 2004, 12970/ 2004, 21863/2004, 1834/2005, 1836/2005, 1838 of 2005, 1858/ 2005, 1861/ 2005, 2011/2005, 1348/ 2005,18149/ 2004, W.P. No.6098/2005, 6099/2005; 6100/ 2005, & 6097/ 2005; all weredecided on 16.03.2005.

2 Dated 29.12.2003

determination of inter seseniority of direct recruit inspectors (DRIs)and promotee inspectors (PRIs). Seniority lists were prepared on thebasis of executive instructions issued by the Government of India fromtime to time. It is an undisputed fact that inter se seniority was governedby an office memo[3 ]dated 22.12.1959 (hereafter “1959 OM”) stipulatinggeneral guidelines to determine the seniority of various category ofemployees in the Central Secretariat. The Central Excise Departmenttoo followed it. The 1959 OM stipulated that seniority was determinableby the order indicated at the time of initial appointment (and not date ofconfirmation). Permanent Officers of each grade were to be rankedseniors to those officiating to that grade. The inter se seniority of thedirect recruits was to be determined by the order of merit in which theyare selected for such appointment on the recommendations of theU.P.S.C. or such selecting authority. Paras 2-5 of the 1959 OM providedthe principles for determining inter se seniority of direct recruits andpromotees. In the light of experience, the 1959 OM was changed, andanother OM was issued, on 07.02.1986[4] (hereafter “1986 OM”).

3. Five Revenue Inspectors, from the promotion cadre (hereaftercalled generically also- apart from PRIs as “promotees”), promoted in1983-1984 filed an application[5], challenging the inter se seniority listdated 08.07.1985 (hereafter “the 1985 list”) issued by the departmenton the ground that the length of their continuous service was not takeninto consideration while fixing seniority. This application however didnot implead the direct recruit employees; it was allowed on 05.07.1988(hereafter “CAT 1988 order”). CAT directed the department to recastseniority in accordance with the 1986 OM after giving notice to theaffected parties. A revised list was thereafter issued. DRIs, whoseseniority was affected by the revised seniority list filed reviewapplications[6 ]in the disposed of applications. The CAT reiterated its mainorder, dated 05.07.1998 (hereafter “CAT review order”). The departmentthen issued a final seniority list (as on 1.1.1992) on 30.4.1993 (hereafter“1993 final list”). Those promoted before 1986 also requested thedepartment to fix their seniority in terms of the CAT’s 1998 order.

3 Office Memo No. 9/11/55 RSP dated: 22.12.1959

4 OM No. 35014/2/80- Estt.(D), dated: 7.2.1986

5 O.A.NO. 156/1986

6 R.A. No. 29/1994 etc.

AB

C

D

E

F

G

H

A4. CAT’s 1998 order was in the context of the 1986 OM, whichwas in-applicable to pre-1986 PRIs. Thereafter, the matter was referredto the Central Board of Excise and Customs (“CBEC”), which apparentlyclarified that the procedure of fixation of seniority notified in 1986 OMwas to be applied to pre-1986 promotees too. A seniority list was thenprepared in respect of the officers appointed prior to 1986 on the lines ofB1986 OM. At this point, the DRIs filed Review application in R.A. No.103/1993 against the 1993 final list.

5. The CAT, in an order doubted the basis of its previous decisionand referred the batch of matters to a Full Bench- on the issue as towhether 1986 OM was prospective or retrospective. The Full Bench byCits order clarified that the 1986 OM only operated prospectively from1.3.1986. On the basis of the finding of the Full Bench, the tribunalheard the review applications along with O.A. Nos. 1323/ 1993, 285/1994 and OA 906/1994. It is noteworthy that the Central Governmentpreferred a Special Leave Petition to this court, against the CAT’s orderDin O.A.NO. 156/1986 which was dismissed as time-barred.

6. The tribunal considered the matter and the cases were disposedof by a common order dated13.2.1997 recording the followingconclusions:

(i) The O.M dated: 07.02.1986 was prospective; E

(ii) Pre- 07.02.1986 inter-se seniority was to be regulated inaccordance with 1959 OM;

(iii) There was no break-down of the quota rule:The 1959 O.M.was to be followed.F(iv)Cases of those who officiating as Inspectors prior to01.03.1986 but regularised after that date had to beindividually decided after determining the nature ofofficiation, nature of the post, (to which officiation related)and the provisions of OM of 1959 and could not begeneralised.G

(v) Pre 01.03.1986 cases where the selection process -for directrecruitment- but where appointment was made after thatdate werecovered by the OM dated: 7.2.1986.

7. Based on these findings, the 1993 final list was quashed; theHdepartment was directed to prepare another list, afresh. To comply with the order, a special cell headed by the Superintendent of Central Excisewas formed. A new final seniority list (dated 15.10.1997-hereafter “1997list”) was issued based on recommendations of the special cell; it wasdeclared as final on 1.1.1992. This 1997 final seniority list became thesubject of scrutiny in RA 56/ 1998 in O.A.No.1323/1993 filed by thePRIs. These review applications were dismissed by an order dated27.8.1999. CAT was however of the opinion that the matter had to attaina quietus to the long pending issue; it suggested the setting up ofacommittee consisting of senior Commissioner as chairman to arrive atconsensus duly associating the representatives of DRIs and promotees.Any difference of opinion, was to be recorded in the note and finaldecision was to be left to the Chief Commissioner, who is the cadrecontrolling authority.

8. In due compliance with the order, a committee was formed.The CAT, in the meanwhile, disposed of the pending proceedings on30.3.2000[7 ]taking note of the status report by the department, regardingpreparation of the seniority list, based on the submission that the finaldecision of the Chief Commissioner was awaited.

9. The cadre controlling authority, considering the seniority listprepared by the committee circulated a tentative seniority list as on01.01.2002 calling for objections. These objections were overruled andthe final seniority list was published on 7.8.2002. This list was questionedby the promotees, who filed O.A. No. 938/ 2002 etc. The PRIs’ pleawas that the seniority list finalised was not in conformity with the directionsissued by CAT in O.A.NO. 1323/ 1993 as well as the principles in the1959 and 1986 OMs. The department as well as the unofficial respondents,that is, DRIs, resisted the proceedings. The department’s position wasthat the procedure adopted was valid, in accord with the rules and thatthe vacancy position from time to time was taken into consideration.TheDRIs contended that in fact PRIs occupied more than 25% quota andthat the litigation was needlessly continued.

10. CAT, in its order dated 29.12.2000, considered the submissionsand the record, and held that:

(i) The direct recruit/promotion Register of Inspectors,maintained in the office and forwarded to the Hyderabad-ICommissionerate was an authentic document which discloses 7 O.A.No. 429/1998, which challenged the final list of 1997

AB

C

D

EF

G

A

B

C

D

E

F

G

H

the actual vacancies that arose in each year during the periodfrom 1984-1991 and the exact ratio of 3:1 of DR and PRquota respectively;

(ii) There were no excess promotions during the years 1983to 1991; 25% of actual vacancies arising every year duringthat period were for the promotees. No direct recruit vacancyfor any year was filled by promotees;

(iii) The indents placed with, the Staff Selection Commissionfor the recruitment of DRs were only for a part of vacancies(due to partial, ban etc.) and not for the exact 75% of theactual vacancies available in each year. There were noinstances of suppression or under-reporting of vacanciesavailable for direct recruits out of the permanent cadre strengthin any year, to help the promotees. There was consequentlyno justification for invoking para 5 of the O.M. of 1986. Thedepartment wrongly inferred that there were excess promotionsby wrongly estimating the promotee quota on the basis of theindents placed for direct recruitment;

(iv) (a) The date of appointment of direct recruits the date forcounting seniority-it is not from the date of receipt of thedossiers from the recruiting authorities or the date ofrecommendation. Resultantly seniority of direct recruitsappointed after 1.3.86 is to be revised only from the date oftheir respective appointments but not earlier to 1.3.1986 asis wrongly done in the impugned seniority list, (b) Direct recruits of 1992 were to be given seniority only inthat year but not in 1991 as was wrongly done in the impugnedseniority list;

(v) The seniority of five applicants in O.A.NO. 156/86originally fixed in terms of the order, had to be restored andcould not be altered.

(vi) Those promoted ad hoc basis in any year in the vacanciesavailable to them were eligible for seniority from the date oftheir continuous officiation, if -they were promoted within theireligible quota of that year under the Recruitment Rules;

(vii) Those promoted in 1983 against 17 posts diverted fromShillong, were entitled to seniority in terms of 1959 O.M;

(viii) Of 137 promotees regularised on 27.10.1988, seniorityof those applicants regularised under the earlier order in 1985is to be fixed prior to 1.3.1986, on the said earlier date oftheir regularisation in 1985;

(ix) Seniority of promotees functioning in temporary postsnot forming part of the cadre, is to be fixed from the date ofpromotion/ appointment.

11. Accordingly, the CAT allowed the applications and set asidethe seniority list prepared as on 01.01.2002. The department was directedto revise and refix the seniority list in the cadre of Inspectors in tunewith the findings and the order dated 13.2.1997 in O.A.NO. 1322/1993.Another direction to as certain number of vacancies, which arose eachyear for working out DRIs and PRIs in the ratio of 3:1 on the basis ofthe direct recruit/promotion Register maintained during the 1991-1994as well as the remaining period subsequent to 1999- on the basis of theauthentic records maintained in the office was issued.

12. Aggrieved by CAT’s order dated 29.12.2003 the DRIs andthe Central Government filed writ petitions before the High Court, whichresulted in the impugned judgment. The High Court held that the vacancyregister had no relevance for the purpose of promotion of in-servicecandidates and such promotions could be only in proportion to therespective quota, based on indents placed by the department with theStaff Selection Board for direct recruitment. It also held that length ofcontinuous service followed by regularisation cannot be counted for thepurpose of seniority since the quota rule had not been infringed. It alsoheld that validity of 1986 OM was not challenged in the applications bythe promotee inspectors. It therefore, upheld the impugned seniority listdated 22.07.2002.

Contentions of appellant-PRIs

Contentions of appellant-PRIs

13. It is urged on behalf of the PRIs by their senior counsel, Mr.R. Basant, that the High Court overlooked the fact that the Chairpersonof the Committee which was constituted pursuant to the decision of theFull Bench (of CAT) submitted its first report to the Chief Commissionerby letter dated 28.3.2000[8] suggesting that direct recruit/promotee registerof Inspectors maintained from 1884 to 1996 should be taken as the basis 8 C.No.11/39/92/99-Estt., dated 28.3.2000

A

B

C

D

EF

G

Ato arrive at number of vacancies year-wise to determine the senioritysince in terms of 1986 OM. The method of calculation of vacanciesshould be based on vacancy register. The extract of the report reads asunder:

“I have looked into ‘DR/Promotee register of Inspectors’BHyderabad which has been forwarded by theCommissionerate. It has been maintained systematicallyshowing the exact ratio of 3:1 as provided in the O.M. dated22.12.1959 and O.M. dated 7.2.1986. There is, therefore, littlescope to doubt authenticity of this register though nosignaturesare appended. Moreover, it has been duly certified by theCJoint Commissioner (F&V) of Hyderabad Commissionerateas having been maintained in the Establishment of HyderabadCommissionerate now that this register is available, it wouldbe better to go by it than on any assumption or principle todetermine the number of vacancies on thebasis of which theDseniority list is to be drawn up.”

14. It was submitted that the Chairperson of the Committeesubmitted its second report to the Chief Commissioner on 11.10.2000clarifying that the Special Cell’s formula of taking the actual number ofDRIs appointed to arrive at the PRI quota was narrow. Instead, itEsuggested to take the indents placed to Staff Selection Commission (SSC)together with the appointments made on compassionate grounds, interCommissionerate transfers, sports quota and surplus cell which were inthe nature of direct recruitment as basis for arriving at number of directrecruit vacancies and to arrive at PRI quota by arriving the ratio of 3:1.

F15. It was urged by Mr. Basant, that the January 2002 senioritylist, completely ignored the previous directions of CAT, which had attainedfinality, and proceeded to apply the 1986 OM retrospectively, in regardto pre-1986 PRIs, as well as ad-hoc PRIs, without considering that mostsuch PRIs were in fact promoted within the quota available to them, underthe rules. It was submitted that the department ignored two salient facts,Gfirst, that as many as 110 appointments were made, which were adjustableonly against the direct recruit quota (such as sports quota, compassionateappointments and inter Commissionerate transfers). Secondly, the existenceof a ban-though partial in nature, preventing direct recruitment, was acompletely neutral fact, which could not have operated against the PRIsHwhile determining the inter se seniority with DRIs.

16. It was urged by learned senior counsel that the method ofcalculation of promotee quota vacancies was flawed. The appellantsurge that the quota is to be worked out, based on the total vacanciesarising each year. This contention is supported by the 1979 Rules as wellas 1986 OM. The department’s stand that quota is to be worked out, noton the total reported vacancies as per the vacancy register as envisagedin the 1986 OM but on the indents placed with the SSC for DRIs isunjustified. This position is contrary to the express terms of the OM.Indents placed with the SSC is only one, (among others) mode of directrecruitment. It is not the only basis for determination of quota either, forquotas are fixed by the Recruitment rules. According to the appellantsthe restricted interpretation of the 1986 OM by the department wouldrender it bad and violative of Articles 14 and 16 of the Constitution.

17. It is urged that the 1986 OM is an executive instruction andhence subordinate to statutory rules formulated under Article 309 of theConstitution. Rule 7 of the 1979 Rules empowers the department torelax any of the rules with regard to any class or category of persons. Inthis case, the Ministry of Finance, Department of Expenditure imposedrestrictions on filling up of direct recruit vacancies during the years 1984to 1990 while exempting vacancies to be filled up purely by promotion interms of the relevant recruitment rules from the purview of thoserestrictions. These amounted to relaxation of the Recruitment Rules inexercise of the powers conferred under Rule 7 of those Rules. Theappellants also rely on the averments, in Paras 5(1)(c) & (d) of thedepartment’s counter affidavit[9], admitting that filling of vacancies bypromotion, was exempt from the instructions relating to ban onrecruitment, to the following effect.

“…..Central Board of Excise & Customs has since clarifiedthat there were restrictions on filling up direct recruitvacancies during the years 1984 to 1990 and the restrictionsdo not apply to vacancies which are to be filled up purely byway of promotion in terms of the relevant Recruitment Rules.”

18. The appellants then rely on the replies given by the department,to the replies to queries (dated 29-08-2007, 30-10-2007, 13-11-2007 and28-11-2007) made under the Right to Information Act (“RTI”). The replyto the RTI query[10]

9 Dated 25th August 2008 in CA 3969-3982/2009 arising out of SLP (C) 4784/200710 Given on 28-11-2007 (F.No.A.60/31/RTl/2007-Ad.lllB) by Govt of India, Ministryof Finance, Department of Revenue, Central Board of Excise and Customs AB

C

DE

F

G

H

“the restrictions on filling up of direct recruit vacanciesimposed by the Government do not apply to vacancies whichare filled up purely by way of promotion in terms of recruitmentrules provided the resultant vacancies in the lowest level ofthe cadre are not filled up during the period of the ban order”.

A

BLikewise, the letter dated 13-11-2007[11] refers to two earlier letters,(F.7 (1)-E. Coord/84 dated 20.06.1984, F.7 (1)-E-Coord/86 dated20.05.1986 and F.7 (1)-E-Coord.186 dated 15.07.1986), issued by theGovt. of India, department of revenue, alluding to the fact that “therewere restrictions on the filling up of Direct Recruit vacancies duringthe year 1984 -1990 in terms of instructions issued by GovernmentCof India.” The appellants lastly rely on the reply dated 29.08.2007[12],which stated that “..The 25% promotee quota vacancies of Inspectors wereworked out on the basis of actual vacancies available in eachyear.…The promotee Inspectors promoted well within 25%Dpromotee quota.”

It is submitted therefore, that the department proceeded on amisconception that promotions made even within the quota availablefor the PRIs were to be treated as excess to the extent that indentswere not (or could not be) made for direct recruitment to the cadre,Ethrough the SSC.

19. It was further argued by the appellants, that the department’sinterpretation of the quota rule is untenable, in that for the purpose ofreckoning seniority, the quota for PRIs was taken to be one third ofthe total vacancies available and filled by direct recruitment. ThisFis contrary to the rules, which provide, independently a quota of 25%of the total vacancies. It was submitted that this interpretation, togetherwith the fact that existence of a ban on direct recruitment was ignored,led the department to ignore the directions in the previous orders ofthe CAT, as well as the factual report of the commissioner, whichGclearly existed that the vacancy register maintained at the relevanttime, did not show that there was any under-reporting of direct recruitvacancies.

11 F.No.A.60/3 l/RTI/2007.AD.IIl.B by the Govt of India, Ministry of Finance,Department of Revenue, Central Board of Excise and CustomsH12 F. No. I/Admn (22) Misc-42 /R.TIA/CPIO/M-I/2007/49

Contentions of the respondent DRIs and the department

20. It was urged on behalf of the DRIs, who succeeded beforethe High Court, that the impugned judgment does not call for interference.It is pointed out that the question of inter se seniority has been gone intoon multiple occasions, and the department interpreted the previous rulings(which had attained finality) correctly while drawing up the seniority list.

21. It was urged that the previous seniority list (as on 01.1.1992)dated 15.10.1997 was not challenged by the PRIs; it was impugned bythe DRIs. Therefore, PRIs cannot seek better seniority than what theirposition was in the list dated 15.10.1997 as on 1.1.1992. It was urgedthat the excess PRIs including the applicants were not given any senioritypositions in the seniority list dated 15.10.1997 and the appellants as wellas other excess PRIs did not challenge the said seniority list in whichthey were not granted seniority and were shown at the bottom of thelist. Having not challenged the seniority list on 15.10. 1997. It was onlychallenged by the DRIs as they were aggrieved by their respective rankingpositions in that list. The PRIs therefore, cannot question the positionsassigned to them in the revised seniority list. It was argued that the CATfailed to notice this aspect, and held that it was not open for the PRIsagain at a subsequent stage to contend that they ought to have beenfixed in the seniority above 1991 and 1992 DRIs. They cannot be allowedto do so as the principle ofestoppel would squarely operate against them.

22. It was urged that the impugned judgment correctly appreciatedthat the vacancy register at the most indicated the vacancy position incadre and was not meant to confer the benefit of promotion on in-servicecandidates more especially when the promotions were to be made withreference to vacancies indented for DRIs. Therefore, CAT’s observationthat only in case of detection of under reporting/ suppression the bunchingprocess had to be adopted and in other cases the vacancies position vis-a-vis the promotion was to be identified from the vacancy register, wasuntenable. It is also relevant that contrary to the premise underlying thecontentions of PRIs, there is no conflict between Para 4 and 5 of the1986 OM. This too was appreciated by the High Court. The pertinentissue, submit the DRIs, was whether PRIs can claim seniority over theDRIs when they occupied the posts beyond the prescribed ratio, subjectto bunching process. Quite possibly some PRI swere promoted ontemporary basis and some were promoted on ad-hoc basis. Assumingthat they were promoted on regular basis, without properly assessing the B

C

D

E

FG

H

Avacancies, that ipso facto could not confer any right to claim seniorityfrom the date of their appointment, in as much as, the seniority can onlybe assigned when the vacancy crystallizes. It is always subject to thequota rule. That is what was followed in the 1959 OM, however, a slightchange was brought in 1986 doing away with the slotting system andreplacing the same with the bunching system. The bunching process hasBthe effect of balancing the ratio as far as possible without much deviationand it acts as an effective catalyst and always equalizes the inequalitiescreated by excess promotion or excess.

23. The respondents urge that there cannot be excess directrecruitment in as much as only clearvacancies would be reported toCthe selection agencies whereas promotions would also be given on ad-hoc, temporary basis. In the process of fixation of seniority, there couldbe variation in the dates of promotion either in the promotee cadre ordate of joining in the DRI cadre, but that should not be allowed touproot the entire seniority list and efforts must be made to setright theDcommissions or omissions as far as practicable. The High Court alsocorrectly appreciated that para 5 of the 1986 OM did not cause prejudiceto PRIs by the bunching process and any promotions beyond the bunchingstage were treated as ad hoc promotions. The High Court correctlyupheld the 1986 OM and observed that it contained principles for fixationof seniority when the intake is from two sources. In fact, in bunchingEsystemthe PRIs would benefit in view of the fact that when the indentedvacancies are not filled up in toto for non-availability of DRIs for variousreasons, requisite promotions made to the extent of indented vacancies.

24. It is argued that the OMs are to be read as they are andnothing can be imported nor interpreted contrary to their intention. QuotasFhave been specifically fixed between DRIs and PRIs at 75% and 25%,the quota of PRIs is co-relatable to the indent placed fordirect recruitmentwith the SSB. Therefore, the quota has no relationto permanent strengthor vacancy position.

25. It is contended that though a vacancy may arise, or exist, itGmay not necessarily be filled up immediately. Therefore, even if thedirect recruit quota has not been filled up, PRIs should be given theirshare in terms of such vacancy positions. The dispute also arose withregard to “identification” of the vacancies that is, whether it is assessedon the basis of the indents placed by the departments or by the SSC orHon the basis of the vacancy position as reflected in the vacancy register.

It is pertinent to mention that DR/PRRegister is not a vacancy registercontrary to the observation that the same was said to be maintained bythe department for the said purpose. Therefore, discrepancies in suchregister were highlighted to CAT in the DRIs’ review petition. Onediscrepancy was that promotion were given to an individual against adeath vacancy which arose nearly 16 months after such promotion- thistoo was held to be a promotion within the promotee quota and senioritywas sought to be extended to such promotion from the date of promotionby the CAT’s order. The CAT however, dismissed the review petition onthe ground that the plea was nothing but an appeal in disguise and DRIswere free to appeal against the verdict.

26. It is argued therefore, that the maintenance of a Register atbest, served to identify vacancies. Instead of that register, theDepartmental Promotion Committee (DPC) reports (ordering thepromotions with specific reference to nature of such vacancies againstsuch promotions were given for the said period) would be more authenticin considering if promotions were made in the regular manner. However,CAT ignored the DRIs’ pleas, in its order. It was submitted that thevacancy register is not relevant when promotions are made but theirrelevance is important at the time of fixation of seniority, as suchpromotions should conform to the quota prescription under the rules, asbetween PRIs and DRIs. The CAT, having observed that quota rule hadnot been broken down, should have held that promotions could havebeen given only in proportion to the PRI quota on the basis of indentsplaced by the department with the SSB and promotions could not becorrelated to the vacancy position. The bunching system was introducedso as not to cause injustice to the promotee officers. The CentralGovernment’s clarification clearly provided that notwithstanding thevacancies which were indented by the department Staff Selection Boardwere not filled up, yet, to the extent of the indent, promotions could begiven by resorting to bunching system. Consequently, the interests of thePRIs were fully protected.

27. The contesting respondents rely on the judgments of this court,reported as State Of West Bengal & Ors v Aghore Nath Dey & Ors[13];Devindra Prasad Sharma v State of Mizoram[14]; Suraj Parkash Guptav State of J& K[15] to argue that this court has previously ruled that 13 1993 (3) SCC 371

14 1997 (4) SCC 422

15 2000 (3) SCR 807

AB

CDEF

G

H

Awherever public servants are promoted in excess of their quota, suchpromotions would be deemed as irregular to the extent it violates therules. The PRIs would be eligible only to the extent DRIs are appointed,and that the balance or excess PRIs would have to be bunched at thebottom of the seniority list.

B28. The Central Government has supported the conclusions arrivedat by the High Court. On its behalf, the Additional Solicitor General(ASG) Ms. Madhvi Divan, urged that the relative seniority of DRIs andPRIs has to be determined according to therotation of vacancies betweenDRIs and PRIs which shall be based on the quota of vacancies reservedfor direct recruitment and promotion respectively in the RecruitmentCRules. It was urged that the record clearly bears out that while finalizingthe seniority of Inspectors for the years 1983 to 2002 as on 01.01.2002,vide seniority list dated 22.7.2002, the promotee quota vacancies werearrived at year wise, in terms of the indents placed to the SSC for directrecruitment and other appointments made under direct recruit quota i.e.,Don compassionate grounds, sports quota, vacancies kept aside for inter-Commissionerate transfers and surplus cell.

29. The Central Government also argued that in tune with theOM of 1986 all the excess PRIs including the appellants were not givenany seniority position in the seniority list dated 15.10.1997. The appellantsEdid not challenge that seniority list where they were not given any seniorityposition and were only shown at the bottom of the list, they cannotchallenge their seniority position in the impugned seniority list and cannotquestion their present seniority positions. The note in the seniority listdated 15.10.1997 with reference to the excess PRIs as regards to theirseniority was self-explanatory, Therefore, the grievance of the appellantsFagainst the present seniority list was devoid of any merit. They are notentitled to any relief.

30. It is lastly urged that in accordance with the principle adoptedthat the indents placed to SSC together with actual appointment oncompassionate grounds, sports quota and vacancies kept reserved forGInter Commissionerate transfers while placing such indents shall be takenas the vacancies meant for direct recruitment, it was found that 789vacancies arose during the period 1991- 2001 which indicated that thedepartment could order 264 promotions -in that period. Thereafter allthe officers who were to be given seniority after 1999 including theHofficers promoted against the vacancies that arose consequent to increase in the promotee quota from 25 % to 33 1/3 %, since at that point of timeall the vacancies under promotee quota were filled up, have been bunchedand given seniority in the year 2000.

Analysis and Reasoning

31. The rules in question, that is, 1979 Rules prescribes thatrecruitment to the post of Inspectors is from two sources: directrecruitment (to the extent of 75% of the cadre) and promotions (to theextent of 25% of the cadre). Promotions are made from seven feedergrade cadre posts: Upper Division Clerks (UDCs)/Steno Grade III; UDCswith a total of 13 years combined experience as UDCs and LowerDivision Clerks (LDCs); Stenographers Grade II; Stenographers GradeII or Grade III with combined experience of 12 years; Woman Searcherwith 7 years’ experience; Draftsman with seven years’ service in thegrade. The rules are silent about the principle on which inter se seniorityof DRIs and PRIs is to be fixed.

32. The 1986 OM which is at the heart of the present controversyis reproduced below:

“OFFICE MEMORANDUM

Subject: General principles for determining the seniority ofvarious categories of persons employed in Central Services.

As the Ministry of Finance, etc. are aware, the GeneralPrinciples for determination of seniority in the Central Servicesare contained in the annexure to Ministry of Home AffairsOM No. 9/11/55-RPS dated 22-12-1959. According to Para6 of the said annexure, the relative seniority of direct recruitsand promotees shall be determined according to rotation ofvacancies between the direct recruits and the promotees, whichwill be based on the quota of vacancies reserved for directrecruitment and promotion respectively in the RecruitmentRules. In the Explanatory Memorandum to these Principles,it has been stated that a roster is required to be maintainedbased on the reservation of vacancies for direct recruitmentand promotion in the Recruitment Rules. Thus, whereappointment to a grade is to be made 50% by direct recruitmentand 50% by promotion from a lower grade, the inter seseniority of direct recruits and promotees is determined on1:1 basis.

A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

2. While the abovementioned principle was workingsatisfactorily in cases where direct recruitment and promotionkept pace with each other and recruitment could also be madeto the full extent of the quotas as prescribed, in cases wherethere was delay in direct recruitment or promotion, or whereenough number of direct recruits or promotees did not becomeavailable, there was difficulty in determining seniority. In suchcases, the practice followed at present is that the slots meantfor direct recruits or promotees, which could not be filled up,were left vacant, and when direct recruits or promotees becameavailable through later examinations or selections, suchpersons occupied the vacant slots, thereby became senior topersons who were already working in the grade on regularbasis. In some cases, where there was shortfall in directrecruitment in two or more consecutive years, this resulted indirect recruits of later years taking seniority over some of thepromotees with fairly long years of regular service already totheir credit. This matter had also come up for considerationin various court cases both before the High Courts and theSupreme Court and in several cases the relevant judgmenthad brought out the inappropriateness of direct recruits oflater years becoming senior to promotees with long years ofservice.

3. This matter, which was also discussed in the NationalCouncil has been engaging the attention of the Governmentfor quite some time and it has been decided that in future,while the principle of rotation of quotas will still be followedfor determining the inter se seniority of direct recruits andpromotees, the present practice of keeping vacant slots forbeing filled up by direct recruits of later years, thereby givingthem unintended seniority over promotees who are already inposition, would be dispensed with. Thus, if adequate numberof direct recruits do not become available in any particularyear, rotation of quotas for purpose of determining senioritywould take place only to the extent of the available directrecruits and the promotees. In other words, to the extent directrecruits are not available, the promotees will be bunchedtogether at the bottom of the seniority list, below the lastposition up to which it is possible to determine seniority on the basis of rotation of quotas with reference to the actualnumber of direct recruits who become available. The unfilleddirect recruitment quota vacancies would, however, be carriedforward and added to the corresponding direct recruitmentvacancies of the next year (and to subsequent years wherenecessary) for taking action for direct recruitment for the totalnumber according to the usual practice. Thereafter, in thatyear while seniority will be determined between direct recruitsand promotees, to the extent of the number of vacancies fordirect recruits and promotees as determined according to thequota for that year, the additional direct recruits selectedagainst the carried forward vacancies of the previous yearwould be placed en bloc below the last promotee (or directrecruit as the case may be) in the seniority list based on therotation of vacancies for that year. The same principle holdsgood in determining seniority in the event of carry forward,if any, of direct recruitment or promotion quota vacancies (asthe case may be) in the subsequent years.

Illustration:

Where the Recruitment Rules provide 50% of the vacanciesin a grade to be filled by promotion and the remaining 50%by direct recruitment, and assuming there are 10 vacancies inthe grade arising in each of the years 1986 and 1987 andthat 2 vacancies intended for direct recruitment remainedunfilled during 1986 and they could be filled during 1987,the seniority position of the promotees and direct recruits ofthese two years will be as under:

AB

C

D

E

F

G

H

A

B

C

D

E

F

G

H

8. P516.D417.P518.D519.D620.D7

AB

C

D

E

F

G

H

A

B

C

D

E

F

G

H

8. P516.D417.P518.D519.D620.D7

4. In order to help the appointing authorities in determiningthe number of vacancies to be filled during a year under eachof the methods of recruitment prescribed, a vacancy registergiving a running account of the vacancies arising and beingfilled from year to year may be maintained in the pro formaenclosed.

5. With a view to curbing any tendency of underreporting/suppressing the vacancies to be notified to the authoritiesconcerned for direct recruitment, it is clarified that promoteeswill be treated as regular only to the extent to which directrecruitment vacancies are reported to the recruiting authoritieson the basis of the quotas prescribed in the relevantRecruitment Rules. Excess promotees, if any, exceeding theshare falling to the promotion quota based on thecorresponding figure, notified for direct recruitment wouldbe treated only as ad hoc promotees.

6. The General Principles of seniority issued on 22-12-1959referred to above, may be deemed to have been modified tothat extent.

7. These orders shall take effect from 1-3-1986. Seniorityalready determined in accordance with the existing principleson the date of issue of these orders will not be reopened. Inrespect of vacancies for which recruitment action has alreadybeen taken, on the date of issue of these orders either by wayof direct recruitment or promotion, seniority will continue tobe determined in accordance with the principle in force priorto the issue of this OM.

8. Ministry of Finance, etc. are requested to bring theseinstructions to the notice of all the attached/subordinateoffices under them to whom the General Principles of seniority contained in the OM dated 22-12-1959 areapplicable within 2 weeks as these orders will be effectivefrom the next month.

sd/- Joint Secretary to the Government of India”

33. The main issue before this Court is regarding application ofClause 4 and 5 of the OM of 1986 in the background of the 1979 Rules,which provide for 75% by direct recruitment and 25% by promotion. Interms of the rules, ratio for the two sources is three candidates from thedirect recruitment channel and one candidate from the promotional channelhas to be resorted to. As mentioned earlier there is no governing rulemeant to guide thefixing of inter-se seniority between the DRIs andPRs. That was done in accordance with the executive OfficeMemorandums.

34. The 1986 OM introduced the principle of rotation of quotaalong with bunching rule. In its termswhen in a particular year, if againstthe available vacancies, a given number of DRIs or PRIs are not available,after the last available candidate, from a particular channel,candidatesfrom the other channel or quota would be bunched at the end of the listand such seniority and will be treated as ad-hoc entrants, for the purposesof seniority. The effect of drawing seniority lists in the manner requiredof by the OM is that in a particular year, whenever the number ofcandidates appointed from either source– under the rule can potentiallybe treated as ad-hoc to the extent that vacancies are not reported to theSSC in a given year.

35. The question in this case is whether the ratio of the PRIs hasto be drawn with respect to the indented vacancies for the DRIs. Thecounsel for the DRIs has argued in favour and the same has also beendone by the government while drawing the seniority list. The fall out ofthis mode of drawing the list is that if in a particular year there are lessnumber of indented vacancies for DRIs or the vacancies are underreported the PRIs lose their right of seniority as given under 1979 Rules.

36. As is evident from the preceding factual discussion, the genesisof this dispute was the first round of litigation, initiated by the promoteeInspectors – who sought for proper fixation of their seniority. Thisculminated in CAT’s 1988 order. Since direct recruits were not arrayedas parties, they preferred review applications, which were disposed ofin terms of the main 1988 order, dated 05.07.1988.

A

BC

DE

F

G

H

A37. This order required the department to frame the seniority listhaving regard to the OM of 07.02.1986. The order of CAT attainedfinality when this Court refused to entertain a special leave petition,directed against it, on 12.03.1990.

38. The second limb of litigation was triggered by the publicationBof another seniority list of Inspectors (dated 30.04.1993) reflecting inter-se seniority between direct recruits and promotees as on 01.01.1992.This list was based on a retrospective application of the OM of 1986; itwas challenged by direct recruit Inspectors in a number of applications,and review applications. These applications were heard, and on12.07.1994, referred to a Full Bench of CAT. On 21.11.1996, the FullCBench rendered its opinion, inter alia, holding that the 1986 could not beapplied retrospectively. The bench of CAT which then heard theapplications pending before it on merits held by its order of 13.02.1997that the OM of 1986 could be applied only prospectively, and that the1959 OM had to be followed for the period before the 1986 OM. It alsoDheld that the quota rota rule had not broken down, and that the case ofPRIs who were regularised after the OM of 1986 had to be individuallyexamined and their seniority, determined. In the light of these observations,the seniority list dated 30.04.1993 was quashed.

39. Review petitions and certain pending applications were disposedEof by CAT, on 28.07,1999, when it observed that the fresh seniority list –to be prepared, should be preceded by consultations between the directrecruits and PRIs, whose views should be considered and appropriaterecommendations, made by Commissioner level officers. This order wassought to be reviewed, again: however, CAT disposed of thoseapplications, by its clarificatory order dated 30.03.2000.F

40. Acting on the basis of these orders, a report was preparedby a five-member committee (which held consultations among theemployees, and seven sittings) and submitted on 28.03.2000. The ChiefCommissioner asked the Chairperson (of the Committee) to re-examinethe issue. In its report of 11.10.2000, the Chairperson was of the viewGthat to determine seniority and arrive at the correct figures of the relativequotas, it was necessary to take into account, and include appointeesmade against the sports quota, those appointed on compassionategrounds, as well as those adjusted from the surplus cells to arrive atthe vacancies allocable to the share of direct recruits – in addition toHvacancies reported to the Staff Selection Board. The Chief Commissioner required the Chairperson of the Committee to submitits final report, which it did, on 27.12.2000.

41. The record in the present discloses that the Central Board ofExcise and Customs had issued three directions, with reference to fillingup vacancies in the cadre of Inspectors. The first letter dated 9.3.1988[16]directed the department to fill up only 12 vacancies as on 1.2.1988 out of20 vacancies available for direct recruitment. The second letter dated4.7.1988[17] directed the respondents to fill up only 18 posts by directrecruitment out of 37 posts available as on 28.2.1989. The last, and thirdletter[18 ]dated 29.3.1989 directed the department to fill up only 15 vacanciesby direct recruitment against 27 anticipated vacancies up to 28.02.1989.A cumulative reading of these three letters would indicate that for therelative period, though 84 vacancies arose (were available) during theperiod (1988-89), only 45 were permitted to be filled up.

42. The other important aspect is that at the relevant time, only10% of the direct recruit vacancies could be filled by compassionateappointment, in terms of the extant policies. However, during the sameperiod 50 compassionate appointments were made. Similarly, 24 vacancieswere filled by appointments under the sports quota. 39 vacancies werefilled by inter Commissionerate transfers. Thus, in all 123 vacanciesearmarked for DRIs were filled through these modes (i.e. compassionateappointment, sports quota and inter Commissionerate transfers).

43. From the above facts it is clear that for someof the years,there was a partial ban on filling up of vacancies by DRIs and in additionto those, appointments were also made through different modes but thesame were not reported. The department position in adopting suchpractices is not of an unbiased employer; it is clearly erroneous. On onehand the department contends that the PRIs vacancies were to be inproportion to those reported vacancies of the DRIs- to the SSC and onthe other hand, itdid not report the correct number of vacancies recruitedagainst the DRI quota, such as those appointed under the compassionateappointment quota and the sports quota. It is nobody’s case, nor can itbe, that such vacancies were filled from the PRIs quota. The appointmentshad to be adjusted against the DRI quotas.

16 F.No.12034/19/SCC 87 -Ad.111,B, dated 9.3.1988

17 F.No. A.12034/ SR/ 18/ SCC 88 Ad.III B dated 4.7.1988

18 F. No. A. 12034/SR I 181 SCC 88 Ad. III B.

A

B

C

D

E

FG

H

A44. The department’s affidavit, dated 25.08.2008 states that theBoard of Central Excise and Customs clarified that “there were restrictions on filling up direct recruit vacanciesduring the years 1984 to 1990 and the restrictions do notapply to vacancies which are to be filled up purely by way ofBpromotion in terms of the relevant Recruitment Rules.”

45. The replies given by the department, to the replies to queries(dated 29-08-2007, 30-10-2007, 13-11-2007 and 28-11-2007) under theRTI query[19]

“the restrictions on filling up of direct recruit vacanciesCimposed by the Government do not apply to vacancies whichare filled up purely by way of promotion in terms of recruitmentrules provided the resultant vacancies in the lowest level ofthe cadre are not filled up during the period of the ban order”

.

D46. In fact the letter dated 13-11-2007 refers to two earlier letters,(F.7 (1)-E. Coord./84 dated 20.06.1984, F.7 (1)-E-Coord/86 dated20.05.1986 and F.7 (1)-E-Coord.186 dated 15.07.1986 which also supportthe existence of the ban on direct recruitment, and further state thatthere were restrictions upon the appointments under the direct recruitEquota, for the years 1984-1990; the letter dated 29-08-2007 in reply toan RTI query also admitted that the (promotions to) “25% promoteequota vacancies of Inspectors were worked out on the basis of actualvacancies available in each year.…The promotee Inspectorspromoted well within 25% promotee quota.” Thus, it was establishedthat:F

(a) The PRIs, initially appointed on a temporary or ad-hoc basis,were regularized in two lots: one by an order in 1985, and137 PRIs were regularized by an order dated 27.10.1988.

(b) The direct recruits who sought seniority over the PRIs inthis case, were appointed in 1992, against existing vacancies,Gwhich became available for filling, after the ban (imposedby the central government during 1984-1990) ended. Therequisition to the SSC for filling these vacancies, wereapparently made in 1991.

(c) Several vacancies (which fell to the share of the DRI quota)-were not reported, to SSC, but were nevertheless filledagainst the compassionate appointment quota (to theextent of 50 vacancies and 39 appointments againstthe sports quota; (d)the ban against resorting to direct recruitment, did not applyto resorting to promotion, to the extent, promotionalvacancies existed. This is evident from the affidavit of theCentral Government, as well as other materials on record.

(e) The reply to a query, under the RTI, pointedly admitted thatthe promotions made in the PRI 25% quota were well withinthe permissible quota.

47. The contesting respondents and the Central Government justifythe impugned judgment, contending that the PRIs had to be treated asad-hoc promotees, in terms of the 1986 OM, because firstly, theproportion in which they were appointed against promotional vacancieswere in excess of the proportion available to DRIs, given the number ofrequisitions made to SSC and, secondly, that there cannot be anassumption that the benefit of regularization to PRIs would includeseniority over the DRIs who were appointed later, but were entitled tobe treated as their seniors. These respondents have relied on the judgmentsof this court in Aghore Nath Dey & Ors; Devindra Prasad Sharma;and Suraj Parkash Gupta (referred to supra).

48. The decision in Aghore Nath Dey was one where the claimwas by persons granted ad- hoc, temporary appointments for a fixedperiod, which was extended from time to time till their regularisation on26-2-1980, by relaxation of the condition of selection by the Public ServiceCommission, which was an express condition of their ad hoc appointmentand a requirement for regular appointment under the 1979 Rules. Thecourt held that assuming the relaxation was valid, they could be treatedas regularly appointed only with effect from 26-02-1980 upon relaxationof conditions, and their resultant absorption in the cadre of AssistantEngineers, based on a rule framed at the sametime under Article 309providing for fixation of their seniority from that date. In suchcircumstances, this court, held that there was no foundation for the claimthat they could be treated at par with the direct recruits, regularly appointedprior to 26-2-1980.

A

B

C

D

E

F

G

H

A49. In Devindra Prasad Sharma the rules governed the situation,instructing that inter se seniority was to be fixed in accordance withthe ratio applicable, under the rules, for the two channels, from the dateof appointment. This court held that “The statutory rule 25(iii), as indicated above, clearlyBpostulates that the inter se seniority of the direct recruits andthe promotees has to be determined in accordance with quotaand rotation. Accordingly, seniority was rightly determinedas per the respective dates of appointment. Therefore, therotation has to be considered as per the date of appointmentand in accordance with the vacancy under the rules.COtherwise, the rule of rota-quota unduly gets disturbed.”

50. Suraj Prakash Gupta was a case, where the governmentrelaxed the conditions, and regularized the services of ad-hoc promoteeswho were given appointment, against the vacancies that had to befilled by direct recruits. This court held, in such circumstances that:

D

“..the Government was merely carried away by sympathy tothe promotees. By not making direct recruitment after 1984,by restricting direct recruits to 10% rather than permitting20% and by deliberately promoting the Junior Engineers tothe other 10% quota of the direct recruits, the State Governmenthad definitely acted in a biased manner. There is any amountof justification for the grievance of the direct recruits thatthe State had passed an omnibus order on 2.1.98 regularisingall ad hoc promotees (Electrical Wing) without consulting theCommission, by way of deemed relaxation, in a whollyarbitrary manner, counting the entire ad hoc service ofpromotion. Their illegal occupation of direct recruitment quotawas not even noticed. Their eligibility or suitability was notconsidered. It is probable that even those who had bad ACRswere regularly promoted. The requirement of following quotafor each year was not respected. The regularisations orderdated 2.1.98 was therefore bad and was therefore rightlyquashed by the High Court. (This declaration is confined toAssistant Engineers and Assistant Executive Engineers(Electrical Wing) - as stated under Point No. 2 of the HighCourt Court’s judgment). We confirm the view of the HighCourt on this point. The result is that the promotees have to E

F

G

H

go through the Service Commission for getting into thegazetted category of Assistant Engineers. The AssistantEngineers have to go through DPC for promotion as AssistantExecutive Engineers.”

51. Clearly in two judgments (Aghore Nath Dey and SurajPrakash Gupta) the promotions were made in disregard of the rules;even in excess of their quota, and against direct recruit quota. In AghoreNath Dey, the promotee’s claim was to seniority prior to theirregularization – which was achieved through a special rule, inserted byway of amendment. The claim was that seniority should be given to thepromotees, over the direct recruits, who had been appointed earlier. InSuraj Prakash Gupta, promotions were made in excess of the quotaand as against posts that should have fallen due to direct recruits, in theirquota. The ratio in these decisions is inapplicable, because there is nothingto indicate that the promotees (who were regularized in 1988) exceededtheir quota. Furthermore, the department’s pleading, specifically admitsthat the promotees were appointed against vacancies available to thePRI quota.

52. This court, in K.V. Subba Rao & Ors. v. Government ofAndhra Pradesh[20] held that, promotion and seniority shall be reckonedfrom the date of appointment, not retrospectively from the date whenthe vacancy arose. M. Nirmala v State of AP[21] is a judgment, wherethe government issued an order, banning recruitment. Stop gap, ad-hocpromotions were given, to many employees, in 1974; they were eligibleto be considered for regular promotion only after two years, subject topassing a test. Many of them sought relaxation, which was granted;they were ultimately regularized in 1978 without the test. They soughtshifting of the date of promotion, to an earlier date, which this court held,was inadmissible:

“In 1973, the ban on recruitment through Public ServiceCommission was partially lifted. By G.O. Ms. No. 725 datedDecember 28, 1973, the Government of Andhra Pradeshdirected the Public Service Commission to conduct a specialqualifying test for recruitment in. Group IV services with aview to regularising the temporary appointments made during 20 1988 (2) SCR1118

21 1986 (3) SCR 507

A

B

C

D

EF

G

Athe ban period. One of the conditions of eligibility forappearing at the said qualifying test was, as fixed by thePublic Service Commission, two years of service as on1.1.1973. As the petitioners were appointed after April, 1974,the question of their appearing at the said qualifying test didnot arise. It appears that those who appeared at the said testBwere all absorbed in the regular service. On the representationof the temporary employees who were not absorbed, the PublicService Commission conducted another special qualifying testas directed by the Government by G.O. Ms. No. 787 datedNovember 9, 1976. The petitioners could not avail themselvesCof the said test as they had not put in two years of service ason 1.1.1976 as fixed by the Public Service Commission.”

53. This court, in M. Subba Reddy v A.P. State Road TransportCorporation[22 ]considered a situation where departmental candidates weregiven ad-hoc promotions against direct recruit vacancies when a banDon direct recruitment was in force. Upon later regularization (of suchpromotions) it was contended that the regularizations related back andthat the promotees were to be accorded seniority over direct recruits, whoentered the service. The court rejected this argument, holding as follows:

“mere inaction on the part of the Government cannot be madeEa ground to contend that the quota rule has broken down. Inthe present case, in the absence of direct recruitment, theappellants could not have got seniority over direct recruits.Where there is inaction on the part of the Government oremployer or imposed ban on direct recruitment in filling upthe posts meant for direct recruits, it cannot be held that theFquota has broken down.”

54. State of Uttaranchal & Ors. v Dinesh Kumar Sharma[23]was a decision, where this court held that the seniority is to be reckonednot from the date when the vacancy arose, but from the date on whichthe appointment is made to the post. The judgment in AFHQ/ISOs SOsG(DP) Association & Ors. V. Union of India (UOI) & Ors[24 ]distinguishedSubba Reddy (supra) specifically in the context of periods when a banin recruitment exists 22 2004 Supp (2)SCR723 2006 Supp (10) SCR 1H24 2008 (3) SCC 331

“28. In M. Subba Reddy and Anr., etc. v. A. P. State RoadTransport Corporation and Ors. AIR2004SC3517, relied uponby Mr. L. N. Rao, learned senior Advocate appearing onbehalf of AFHQ Civil Service (Direct Recruits-Gazetted)Officers’ Association, this Court while dealing with inter seseniority between direct recruits and promotees to the postsof Assistant Traffic Manager (for short “ATM”) and AssistantMechanical Engineer (for short “AME”) in A.P. State RoadTransport Corporation, held that rota rule is inbuilt in thequota prescribed in Item 3, Annexure ‘A’ (Section B) to A.P.SRTC Employees (Recruitment) Regulations, 1966 and couldnot be deviated from. In that case, the appellant promoteeswere promoted to the posts of ATMs/AMEs temporarily underRegulation 30 as there were no direct recruits available. Theywere promoted subject to being reverted to substantive postson approved candidates becoming available. Regulation34(6) states that the revertees shall subsequently beconsidered for repromotion against the quota of vacanciesreserved for promotees. Therefore, one has to read Regulation3 of the A.P. SRTC Employees (Service) Regulations, 1964with Regulations 30 and 34 of the Recruitment Regulations.It is only when such revertees are repromoted as perRegulation 34, they can be deemed to have been appointedto the posts of ATM or AME. Therefore, when the appellantswere tentatively appointed to the post of ATMs/AMEs originallyfor want of direct recruits and to the posts reserved for directrecruits, it cannot be said that they were first appointed tothat category within the meaning of Regulation 3 of the ServiceRegulations. Therefore, seniority had to be fixed between thedirect recruits and the promotees strictly in accordance withthe quota provided for in Item 3 of Annexure ‘A’ (Section B).The said Regulations prescribe a quota of 1:1, which leadsto rota for confirmation. The contention of the appellantsbefore this Court was that they had a right to be promotedwithin their quota during the years 1981 to 1987, whenvacancies for promotees’ quota became available. M. SubbaReddy, appellant in that case, was regularized from27.12.1986 vide order dated 9.9.1988, when no direct recruitswere available and, therefore, it was improper for theCorporation to place direct recruits above the promotees. The AB

C

D

E

F

G

H

A

B

C

D

E

F

G

H

AB

C

D

E

F

G

H

A

B

C

D

E

F

G

H

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 forseniority and that the direct recruits could not claimappointment from the date of vacancy in their quota beforetheir selection . They added that seniority was dealt with onlyby Regulation 3 of the Service Regulations, 1964 and not byRegulation 34 of the Recruitment Regulations, 1966. That inview of the 15.9.1995 amendment, Regulation 34 referred toonly allocation of vacancy and not for determination ofseniority. A total ban for direct recruitment was imposed bythe State from the year 1977 to 1988 and, thus, the purportedquota-and-rota rule contained in Item 3 of Annexure ‘A’ couldnot have been given effect to. The majority view of this Courtwas that where there is inaction on the part of the Governmentor employer or imposed ban on direct recruitment in fillingup the posts meant for direct recruits, it cannot be held thatthe quota has broken down. We, with respect, do not supportthe view of the learned Judges that in the facts andcircumstances of the case the quota has not broken downbecause of inaction on the part of the Government in imposingban in filling up the posts meant for direct recruits. Theappellants in the said case were promoted in a regular mannerhaving been regularized in service with retrospective effect.Their services were not regularized from the date of their initialad hoc promotion but with effect from the date when thevacancies became available. Their services afterregularization would not be by way of a stop-gaparrangement. The direct recruits who were appointed in theyears 1990 and 1991, in terms of Item 3 of Annexure ‘A’ wouldbe considered to have been appointed only after theirsuccessful completion of training. They were borne in thecadre in the years 1990-91 and, thus, prior thereto they cannotclaim seniority. The learned third Judge, dissenting with thelearned two Judges, has held that the direct recruit can claimseniority from the date of his regular appointment, he cannotclaim seniority from a date when he was not borne in theservice. Thus, the direct recruits of 1990 and 1991, by reasonof the impugned seniority list, could not have been placed over and above the appellants-promotees because thepurported quota and rota rule contained in Item 3 of Annexure‘A’ could not have been given effect to because the StateGovernment had imposed total ban for direct recruitment fromthe year 1977 to 1988. In such a situation, the said quotarule became inoperative. We agree with the dissenting viewof the learned Judge that in the facts of the case, the quotarule became inoperative because the direct recruits were bornein the cadre when they were appointed against the vacanciesmeant for them.”

The judgment in Pawan Pratap Singh v. Reevan Singh[25]considered several previous precedents, on the issue, including theConstitution Bench decision in Direct Recruit Class II Engg. Officers’Assn. v. State of Maharashtra[26]. The correct position was summarizedby Lodha, J. in the following manner:

“(i) The effective date of selection has to be understood inthe context of the service rules under which the appointmentis made. It may mean the date on which the process of selectionstarts with the issuance of advertisement or the factum ofpreparation of the select list, as the case may be.

(ii) Inter se seniority in a particular service has to bedetermined as per the service rules. The date of entry in aparticular service or the date of substantive appointment isthe safest criterion for fixing seniority inter se between oneofficer or the other or between one group of officers and theother recruited from different sources. Any departure therefromin the statutory rules, executive instructions or otherwise mustbe consistent with the requirements of Articles 14 and 16 ofthe Constitution.

25 2011 (2) SCR 831- a view followed later, in State of U.P. v. Ashok Kumar Srivastava,(2014) 14 SCC 720 and, more recently, endorsed in K. Meghachandra Singh v. NingamSiro (2020) 5 SCC 689 that “seniority should not be reckoned retrospectively unless itis so expressly provided by the relevant Service Rules. The Supreme Court held thatseniority cannot be given to an employee who is yet to be borne in the cadre and by doingso it may adversely affect the employees who have been appointed validly in themeantime”. Also Dinesh Kumar Gupta &Ots v High Court of Judicature, Rajasthan2020 SCC OnLine (SC) 42026 (1990) 2 SCR 900

AB

C

D

E

F

G

H

(iii) Ordinarily, notional seniority may not be granted fromthe backdate and if it is done, it must be based on objectiveconsiderations and on a valid classification and must betraceable to the statutory rules.

A

(iv) The seniority cannot be reckoned from the date ofoccurrence of the vacancy and cannot be given retrospectivelyunless it is so expressly provided by the relevant service rules.

B

It is so because seniority cannot be given on retrospectivebasis when an employee has not even been borne in the cadreand by doing so it may adversely affect the employees whohave been appointed validly in the meantime.”

C

55. In a concurring opinion, Aftab Alam, J. reiterated the positionand alluded to additional authorities on the subject and said:

”To the decisions referred to on this point in the mainjudgment I may add just one more in Suraj Parkash Gupta v.State of J and K (2000) 7 SCC 561]. The decision relates to adispute of seniority between direct recruits and promotees butin that case the Court considered the question of antedatingthe date of recruitment on the ground that the vacancy againstwhich the appointment was made had arisen long ago. Inpara 18 of the decision the Court framed one of the pointsarising for consideration in the case as follows:

D

E

“18. ... (4) Whether the direct recruits could claim aretrospective date of recruitment from the date on which thepost in direct recruitment was available, even though the directrecruit was not appointed by that date and was appointedFlong thereafter?

This Court answered the question in the following terms:(Suraj Parkash Gupta case)

“Point 4

Direct recruits cannot claim appointment from the date ofvacancy in quota before their selection G

80. We have next to refer to one other contention raised bythe Respondent direct recruits. They claimed that the directrecruitment appointment can be antedated from the date ofoccurrence of a vacancy in the direct recruitment quota, even H

if on that date the said person was not directly recruited. Itwas submitted that if the promotees occupied the quotabelonging to direct recruits they had to be pushed down,whenever direct recruitment was made. Once they were sopushed down, even if the direct recruit came later, he shouldbe put in the direct recruit slot from the date on which such aslot was available under the direct recruitment quota.”

These decisions were reiterated, and followed in a three-judgebench judgment in P. Sudhakar Rao & Ors. v U. Govinda Rao &Ors[27] which ruled that seniority cannot be given to any appointee from adate anterior to his or her appointment, in the cadre.

56. From the above discussion, it is clear that no appointee fromany one channel (direct recruits or promotees) can lay claim to seniorityfrom a date before her or his appointment. That being the position in law,it would be now necessary to consider the reasons which weighed withthe High Court to hold that the promotees (in regular and substantivecapacity from 1988) had to make way for direct recruits, who wereappointed in 1991-92. Simply stated, the High Court was of the opinionthat promotees had to be treated as occupying posts in excess of thequota allocated to them, on an application of the 1986 OM. Now, as amatter of fact the materials on record establish that there were promoteevacancies at a time when the ban on direct recruitment was in force(during 1984-1990). To the query dated 11-06-2007, the Commissionerateconcerned, at Hyderabad stated, in its reply dated 30-08-2007, as follows:

“In this Commissionerate whatever vacancies occurred in ayear, the same weredivided in the ratio 3:1 during the period1986 to 1990 and the share of vacancywhich comes for directrecruit were reported to SSC and the promotee quotavacancies were filled upby holding DPC.

The same letter also stated that:

“..the 25% promotee quota vacancies were washed (sicworked) out on the basis of actual vacancies available ineach year.”

The reply further stated that all the promotions were made onregular basis. The rationale for the argument that promotions are to be AB

C

D

E

F

G

Atreated in excess of the promotee quota, is that the requisite number ofvacancies falling to the share of direct recruitment were not reported tothe SSC. For this logic, Para 4 and Para 5 of the 1986 OM were reliedupon.

57. As is apparent, Para 4 is procedural, and talks of a vacancyBregister, which would contain a “running account of the vacanciesarising and being filled from year to year”. This was deemednecessary, because of the Para 3 of the same OM which entails theprocedure of bunching rule.

58. Hence, it is essential to keep in mind that Para 5, (which hasCbeen the basis of the High Court judgment, to hold that the PRIs were inexcess of their quota) was meant to cater to a contingency that is ofunder reporting direct recruit vacancies to the public servicecommission (in this case, the SSC) which resulted in an unfair advantageto promotees who would “steal a march” over such direct recruits, appointed later. It was in such contingencies, that is, of under-reportingDvacancies, that the consequence of deeming promotions to be ad-hoccould be resorted to. If one keeps this perspective in mind, the correctdirection of inquiry, (which in this court’s opinion was undertaken byCAT) was to see what were the number of regular vacancies relative tothe quotas, with specific reference to the vacancy register. This approach,Ehowever, was discredited by the High Court, which held that the vacancyregister “at the mostindicates the vacancy position in DRI/PRI cadreand it is notintended to confer the benefit of promotion on in-servicecandidates more especially when the promotions areFtobe effectedwith reference to the vacancies indented forD.R.ls. Therefore, theobservation of the tribunalthat only incase of detection of under, reporting/suppression thebunching process had to be adoptedand in other cases thevacancies position vis-a-vis the promotionhas to be identifiedfrom the vacancy register is untenable.”G

59. As discussed, the materials on record indicate that promotionalvacancies did exist, at the relevant period. There was a ban on directrecruitment. The reasons for the ban are now obscure; but the factremains that it was in force for six years (1984-90). During this period,undoubtedly, no requisitions were made to the SSC for filling direct recruitH

vacancies. However, the linear logic, applied by the High Court, toconclude that by virtue of Para 5 of the OM of 1986, the promotionsmade during the same period had to be treated as in excess of the quota,because they were not in proportion to the requisitions for directrecruitment. This view is plainly fallacious, because it equates executivepolicy -of not filling vacancies, due to financial or other compulsionswith deliberate underreporting, meant to result in unfair advantage to thePRIs.In the present case, direct recruitment through the SSC was notresorted to because of a ban, and not due to under-reporting.Thus, thecontingency visualized in Para 5 never arose. Not only were promotionsmade within the quota, and were regular (as they were preceded byproceedings of the Departmental Promotion Committee, and culminatedin regularization, in 1988), there were in fact regular vacancies, withinthe promotee quota.

60. The existence of PRI vacancies is a matter of objectivefact– as can be seen from the replies to the RTI queries (see f.n.10-12supra). Those vacancies fell to the share of PRIs, in terms of the25% quota earmarked for them, under statutory rules. In suchcircumstances, to say that those promoted, by resort to DPCs andregularized later, should be treated as ad-hoc promotees, would becontrary to express rules. In other words, by giving effect to Para 5 ofthe 1986 OM, (and treating the promotions as ad-hoc for purposes ofinter se seniority), the statutory rules are virtually given a go bye. It isalso contrary to the stated objective sought to be achieved by Para 3of the 1986 OM, which is to “present practice of keeping vacantslots for being filled up by direct recruits of later years, therebygiving them unintended seniority over promotees who are alreadyin position, would be dispensed with.” The promotions of the PRIsbefore this court therefore, have to be treated as regular. This court isof the opinion, that the reasoning of the High Court, in overlookingthese aspects, is clearly in error.

61. The other aspect – which the High Court ignored, is that anumber of vacancies were filled from amongst the quota forcompassionate appointment, and the sports quota. They were not reportedto the SSC. In such circumstances, to treat the promotees as exceedingthe quota set apart for them (though as a matter of fact, they wereaccommodated within the quota) is not warranted. Furthermore, thematerials on record also show that though there was a ban on direct AB

C

D

E

F

G

H

Arecruitment, it did not apply to vacancies which were to be filled up byway of promotion in terms of the Recruitment Rules.

62. For the above reasons it is held, that the High Court fell intoerror in setting aside the order of the CAT, which is hereby restored.Therefore, it is held that:

B

(i) No excess promotions took place during the period 1983and 1991. 25% of the actual vacancies arising every yearduring that period were for the promotees. No direct recruitvacancy for any year was filled by promotees.

(ii) Indents/requisitions placed with, the SSC for the recruitmentCof DRIs were for a part of the vacancies and not for theexact 75% of the actual vacancies available in each year.

(iii) The record does not bear out instances of suppression orunder-reporting of vacancies available for direct recruitsDout of the permanent cadre strength in any year, to help thepromotees. As a result, there is no justification for invokingpara 5 of the O.M. of 1986. The department erroneouslyproceeded as if there were excess promotions by wronglyestimating the promotee quota on the basis of the indentsplaced for direct recruitment; E

(iv) (a) The date of appointment of direct recruits the date forcounting seniority- it is not from the date of receipt of thedossiers from the recruiting authorities or the date ofrecommendation. Resultantly seniority of direct recruitsappointed after 01.03.86 has to be revised only from theFdate of their respective appointments but not earlier to01.03.1986 as was done in the impugned seniority list, (b) Direct recruits of 1992 could be given seniority only inthat year but not earlier, or in 1991 as was erroneously donein the impugned seniority list; G

(v) The seniority of five applicants in O.A.NO. 156/86 originallyfixed in terms of the order, had to be restored and could notbe altered.

(vi) Those promoted ad hoc basis in any year in the vacanciesHavailable to them were eligible for seniority from the date of their continuous officiation, if -they were promotedwithin their eligible quota of that year under theRecruitment Rules;

(vii) Those promoted in 1983 against 17 posts diverted fromShillong, were entitled to seniority in terms of 1959 O.M;

(viii) Of 137 promotees regularised on 27.10.1988, seniority ofthose applicants regularised under the earlier order in 1985has to be fixed prior to 1.3.1986, on the said earlier date oftheir regularisation in 1985;

(ix) Seniority of promotees functioning in temporary posts notforming part of the cadre, is to be fixed from the date ofpromotion/ appointment.

63. The impugned judgment and order is accordingly set aside;the appeals by the PRIs are allowed in the terms of the above findings.The consequential action, by way of drawing and publishing a finalseniority list, in accordance with the present findings, shall be completedwithin three months. The writ petition is also disposed of in the aboveterms. There shall be no order on costs.

Ankit Gyan(Assisted by : Iram Jan, LCRA)

Appeals allowed.

A

B

C

D

E

F

G

H