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Judgment
P.K. Misra, J
W.P. Nos. 39564, 39583 & 26975 of 2005 have been filed against the common order dated 9.8.2005 passed by the Central Administrative
Tribunal, (hereinafter referred to as ""the Tr ibunal"") in O.A. Nos. 408, 419 and 566 of 2005 respectively. O.A. No. 408 of 2005 was filed by one
T.S. Jayachander, presently working as Deputy Commissioner of Customs. O.A. No. 419 of 2005 was filed by the Chennai Customs Appraising
Officers'' Association, represented by its Secretary along with three other applicants, namely, Parvathi Kailasam, T.H. Rao, Bertsie Sundaram,
who are also working presently as Deputy Commissioner of Customs, Chennai. O.A. No. 566 of 2005 was filed by Sharat Kumar Rath, Saroj
Kumar Sadangi and Parameswaram Satyam, who are working as appraisers. In O.A. Nos. 408 & 419 of 2005, the Union of India and the Chief
Commissioner of Customs were arrayed as Respondents 1 & 2 and in O.A. No. 566 of 2005 they were arrayed as Respondents 1 & 3. The
Chairman of Central Board of Excise and Customs was not arrayed as Respondent in O.A. Nos. 408 & 419 of 2005, but was arrayed as
Respondent No. 2 in O.A. No. 566 of 2005. In such O.A., there was no other private respondent, whereas in O.A. Nos. 408 and 419 of 2005,
four Deputy Commissioners of Customs were arrayed as Respondent Nos. 3 to 7. All such applicants, who are the writ petitioners in three writ
petitions, namely, W.P. Nos. 39564, 39583 & 26975 of 2005, are promotee appraisers under the Customs Department, whereas Respondents 3
to 7 in O.A. Nos. 408 & 419 of 2005 are the direct recruit appraisers. For convenience, the applicants/writ petitioners in three Writ Petitions,
namely, W.P. Nos. 26975, 39564 & 39583 of 2005 are referred to as ""the promotees"" and the private respondents in O.A. Nos. 408 & 419 of
2005 are referred to as "" the direct recruits"", whereas Union of India and other subordinate officials are referred to as ""the official respondents"".
W.P. No. 15158 of 2002 arises out of order dated 17.10.2000 in O.A. No. 833 of 1999. Such Original Application was filed by direct recruits.
The applicant / Petitioner No. 4 in O.A. No. 419 of 2005 corresponding to W.P. No. 39583 of 2005, was Respondent No. 4 in O.A. No. 833
of 1999. The other respondents in the said O.A. / writ petitions are not parties in the matter relating to O.A. Nos. 408, 419 & 566 of 2005.
However, they are the respondents in W.P. No. 15158 of 2002.
The main question in all the writ petitions relates to question of seniority in the cadre of Appraisers in Custom House, Chennai. The perennial
fight is between direct recruits and the promotees. The fight for the first time reached the Supreme Court about four decades back. The Supreme
Court at that stage was concerned with the Rules and Procedure relating to recruitment and seniority of direct recruits and promotees on the basis
of executive instructions. The question related to seniority of those appraisers who are appointed from 15.8.1947. Ultimately, the Supreme Court
in the decision reported in Mervyn Coutindo and Others Vs. Collector of Customs, Bombay and Others, , held that quota system was operating
rotationally and seniority should be followed on the basis of quota and rotation, irrespective of continuous length of service of the promotees. In the
meantime, the Rules framed under Article 309 of the Constitution known as the Customs Appraisers Service, Class II Recruitment Rules, 1961,
came into effect. Rules 3 & 4 of 1961 Rules, being relevant, are extracted hereunder :-
Rule 3.
Recruitment to the Service shall be made by any of the following methods :-
(a) By competitive examination in India in accordance with Part III of these rules.
(b) By promotion in accordance with Part IV of these rules.
(c) By transfer of an Officer in Government Service in accordance with Part V of these rules.
(d) By direct recruitment by selection otherwise than by competitive examination in accordance with Part VI of these rules.
Rule 4
(a) No appointment shall be made to the Service or to any post borne on the cadre of the Service by any method not specified in Rule 3.
(b) Subject to the provisions of Sub-rule (a), the Board shall determine the method or methods of recruitment to be employed for the purpose of
filling in particular vacancies in the Service, as may be required to be filled during any particular period and the number of candidates to be
recruited by each method.
(c) The percentage of posts to be filled by direct recruitment by competitive examination or by selection otherwise than by competitive examination
shall not be less than 50 per cent of the total cadre of Appraisers. The remaining posts may be filled by any other method mentioned in Rule 3.
The salient feature of the said Rules is that no particular quota was fixed for the promotees but, as per Rule 4(c) of the Rules, at least 50% of the
vacancies are to be filled up by the direct recruits and the rest could be filled up from other sources including promotion. The effect of 1961 Rules
on the question of seniority was directly in issue in Gaya Baksh Yadav Vs. Union of India (UOI) and Others, . Since such decision is the basis of
the contention (or rather, the bone of contention) for both the parties, it is more appropriate to extract the relevant portion of the judgment :-
Having travelled thus far let us take stock of the situation, try to grasp it and smoothen its rough edges:
(iii) As per mandate of Rule 4-C of the above Rules the percentage of posts to be filled by direct recruitment, either by competitive examination or
by selection otherwise than by competitive examination, could not be less than 50% of the total cadre of Appraisers and the remaining posts could
be filled up by any other method mentioned in Rule 3. 50% allocation is thus assured to direct recruits in the total cadre. They may get even more;
there is no limit to it.
(iv) The above Rules expressly do not provide a fixed unalterable quota for the promotees (remaining sources), which can keep fluctuating.
(v) In the absence of specific quotas being fixed in the Rules it becomes evident that the quota rule stands discarded. When there is no quota
provided in the Rules the rotational system cannot function.
(xiii) The Direct Recruit case is the amalgamation of all streams of thought, confluencing the entire case-law on the subject and given appropriate
placement. Individual reference of each case as cited therein and at the bar need not be made herein. Reference may be had with advantage to the
report in the Direct Recruit case.
(Other sub-paras are omitted as not necessary for the present case)
We are not expected to unsettle the principle of Mervyn Coutinho or to discover instances of the breaking down of the rotational rule on the
basis of some anomalies having arisen, because of direct recruitment not keeping pace with the situations arising from time to time. We are equally
not expected to discover any ""deemed relaxation"" of the Rule on the supposition of the quota rule having been broken down. We have to proceed
on the supposition that in the respective Customs Houses, termed as cadres, there is no inter se dispute of seniority amongst the allocated direct
recruit Appraisers and departmentally promoted Appraisers. The dispute is narrow and centres on the need to prepare an All-India seniority list.
On every occasion when the Government of India has made an effort to draw one, its effort was thwarted by decisions in succession by the
Bombay High Court, the Madras High Court and the Central Administrative Tribunal. The matter has again been left to the Government of India to
devise a proper principle for drawing a combined seniority list and the placement of the respective personnel on that list.
We must bear in mind and strive that there should, in the interests of justice, be an end to litigation. It has also to be borne in mind that the
attempt herein is not to amalgamate separate services. Here the service was and is one i.e,. an All India Service of Appraisers. Prior to the Rules
50% posts in the service were filled by direct recruitment and the seniority of the selectees was fixed by the U.P.S.C. in the order of selection.
Inter se seniority amongst direct recruits was thus a sealed event. That was the foundation. Entry into service by promotion was fortuitous
dependent on the exercise by the departmental committees in the respective Customs Houses and the outcome. Mervyn Coutinho''s case tells the
way to work it out. In their respective quotas direct recruits as well as promotees rotate the quota system as 1:1 as mentioned in Mervyn
Coutinho''s case. But after the Rules of 1961, when the quota system has been discarded Mervyn Coutinho''s rule cannot apply. As per Rule 4-C
of the 1961 rules, the allocation of at least 50% posts in favour of direct recruits is ensured at all times. The enlistment of the direct recruits,
allocated to Customs Houses on the basis of their selection, would obviously present no difficulty. Equally enlistment of promotee Appraisers,
since coming from feeder sources of Customs Houses, from the date of their promotion, would present no difficulty. Both would be entitled to
placement in the joint seniority list on the basis of their continuous officiation.
We thus go to uphold the orders of the Tribunal to this extent that a fresh All India Combined List of Appraisers be prepared by the
respondents on the basis of continuous officiation of the incumbent in the post of Appraiser appointed on and from the date of the Customs
Appraisers Service, Class II Recruitment Rules 1961. But for appraisers appointed prior to that date the rule of Mervyn Coutinho would be the
basis to work out the inter se seniority of the incumbents to operate the quota and rotational rule.
Such 1961 Rules remained in force till such rules were superseded by ""Department of Revenue (Customs Appraiser) Recruitment Rules, 1988,
with effect from 1.5.1988. 1988 Recruitment Rules provide for recruitment of 50% through direct recruitment and 50% by promotion. However,
the Rules do not contain any specific provision relating to fixation of seniority and there is nothing specifically contained in such rules that seniority
has to be fixed by adopting the principle of quota as well as rotation.
At this stage, it is necessary to notice the various developments including decisions of the Central Administrative Tribunal, in short ""the Tribunal"".
It appears that after introduction of 1988 Recruitment Rules, some of the promotees, namely, V.B. Yuvaraj, Mrs. Bertsie Sundaram, Mrs.
Tamilmani Sriram, K. Ramesh and B. Ramesh Kumar, who are respectively opposite party Nos. 3,4,5,6 & 7 in O.A. No. 833 of 1999 (present
W.P. No. 15158 of 2002) filed O.A. No. 39 of 1988 before the Madras Bench of the Tribunal. Similarly, P.S. Uma Mahesh, opposite party No.
8 in O.A. No. 833 of 1999, filed O.A. No. 162 of 1988 and A. Madhusudana Rao and M.J. Babu Rao, opposite party Nos. 9 & 10 in O.A.
No. 833 of 1999 against Union of India and other officials. The specific prayer was to the effect that Order No. B12014/4/87 Ad.II(A) should be
quashed and the Union of India and other officials should be directed not to revert the applicants on the basis of new recruitment Rules for
Customs Appraisers. The common contention in such Original Applications was to the effect that even though such applicants had been promoted
on ad hoc basis they were in fact regular promotees because they were allowed to officiate in the higher post and the promotion had been made on
the basis of the recommendation of the duly constituted recommendation committee, which had gone into qualification, seniority as well as merit of
such applicants and such promotions were apparently made on the vacancies which were in existence prior to 1987 i.e., before coming into force
of the new recruitment rules. The further contention was to the effect that new recruitment rules were only prospective and were effective from
1.1.1988. The stand of the department at that stage was that the applicants had not been promoted on regular basis under the old Rules, namely,
1961 Rules. It was specifically pointed out as per the said Rules at least 50% of the posts of Appraisers were to be filled up by direct recruitment
and the balance could be filled up by promotion or other sources as there was a shortfall in the direct recruitment quota, the applicants had been
promoted on ad hoc basis on the basis of seniority-cum-fitness and in the promotional order itself was it was specifically stated that promotion was
on ad hoc basis, which would not confer right on such appointees, and such ad hoc promotion should not be equated with regular appointment and
such ad hoc service would not count for seniority and such promotions were made in order to meet the urgent requirements of the administration
and the instructions contained in the Department of Revenue Circular dated 16.10.1980 had been followed. It was indicated that they had not
been promoted against any vacancy post existing prior to 1.1.1988 within the permissible limit for the promotees and they had been merely
promoted on ad hoc basis.
After hearing both sides, Madras Bench of the Tribunal ultimately concluded :-
...Accordingly we are clear in our view that the applicants had not been promoted on a regular basis against the promotion quota, in accordance
with the 1961 recruitment rules. They have been merely holding posts as Customs Appraisers in the quota meant for direct recruits, purely on ad
hoc basis and that such promotions cannot be equated with regular promotions made under the 1961 recruitment rules. The promotion of the
applicants would not confer on them any right to be regularly promoted as Customs Appraisers under the 1961 recruitment rules. Further, all ad
hoc promotions are subject to periodical reviews. The first respondent is therefore within his rights to direct the other two respondents to conduct
a review of the ad hoc promotions made earlier under the direct recruitment quota. Therefore the prayer of the applicants that the impugned order
of the first respondent directing such a review should be set aside, cannot be granted nor can any direction be issued to the respondents not to
revert the applicants. However, we make it clear that on the basis of a review which may be conducted by the respondents, if at all it comes to
notice of the respondents that the applicants had in fact been functioning on ad hoc basis against posts not meant for direct recruitment quota, but
meant as promotion quota, their cases will have to be considered as per the 1961 Recruitment rules, which were applicable to vacancies which
existed up to 31.12.1987. In such an event the applicants are at liberty to approach this Tribunal if they are aggrieved by any order that may be
passed after a review by the respondents.
Such order of the Tribunal was challenged before the Supreme Court and the following order was passed by the Supreme Court in Civil Appeal
No. 1194 of 1990 :-
After hearing learned Counsel for the parties, we find no good ground to interfere with the order of the Administrative Tribunal, specifically in view
of the following observations:
However, we make it clear that on the basis of a review which may be conducted by the respondents, if at all it comes to notice of the respondents
that the applicants had in fact been functioning on ad hoc basis against posts not meant for direct recruitment quota, but meant as promotion quota,
their cases will have to be considered as per the 1961 Recruitment rules, which were applicable to vacancies which existed upto 31.12.1987.
Subsequently, by Office Order No. 470 of 1994, Smt. Bertsie Sundaram, Smt. Tamilmani Sriraman, Smt. S. Kousalya and P.S. Uma Mahesh
were regularly promoted as Appraisers. It is relevant to extract the actual order of one such promotion :-
The promotion of the following Officers who were promoted to the grade of Appraiser purely on ad hoc basis vide this Custom House Order
Nos. 147/86 dt.08.07.1986, 58/87, dt. 13.03.87 and 407/82 dt.28.12.92 are regularised in the scale of pay of Rs. 2000-60-2300-eb-75-3200-
100-3500. They are assigned date of promotion with effect from the date they assume charge as Appraisers (on regular basis).
Under paragraph 2 of the very same order, the petitioners 1 and 2 in W.P. No. 26975 of 2005 and one Mathias Dung Dung were also
promoted. (It may be emphasised that these three persons were promoted for the first time on regular basis, but in their case they were not
promoted on ad hoc basis earlier). Similar orders relating to promotion on regular basis in respect of many other ad hoc Appraisers were issued by
Order Nos. 554 of 1995 and 284 of 1996. However, the orders being almost similar, it is not necessary to extract each such order in extenso.
Thereafter the Union of India purported to issue a seniority list of direct recruits and promotees appointed / promoted upto 31.12.1987 vide
letter dated 2.11.1997. In such letter, it was also indicated that All India Seniority list of Direct Recruit and Promotee Customs Appraiser
appointed / promoted after coming into force of Customs Appraiser Recruitment Rule, 1988 with effect from 1.1.1988 will follow. In All India
combined seniority/consideration list of Customs Appraiser relating to period prior to 31.12.1987, Serial Nos. 1 to 72 were apparently the
persons who had been appointed/promoted as Customs Appraisers prior to coming into force of Customs Appraiser Service, Class-II
Recruitment Rule, 1961 and such seniority of those 72 Appraisers had been fixed on quota-rota basis as per Mervyn Coutinho''s case. Serial Nos.
73 to 1043 purported to indicate seniority of promotees and direct recruits, apparently on the basis of the directions contained in the decision of
the Supreme Court in Yadav''s case. At that stage, the name of Mrs. Bertsie Sundaram, Tamilmani Sriram, K. Ramesh, M.J. Babu Rao, A.
Madhusudhana Rao and P.S. Uma Mahesh were included at Serial Nos. 1015 to 1020 respectively indicating the date/deemed date of joining
Customs Appraisers as 13/12.3.1987. It is obvious that such seniority list was on the basis of the date of ad hoc promotion rather than on the
basis of the subsequent regular promotion.
The direct recruits who were appointed between the period 1987 and 1994 and were shown junior to such promotees, who were promoted
on ad hoc basis in March, 1987 but made regular only after 1994 and 1995 by fixing their seniority from the date of their ad hoc promotion filed
representations to the effect that such ad hoc promotees should not be treated as senior to the direct recruits. However, when no specific order
was passed and it was found that some of the promotees had been further promoted on ad hoc basis as Assistant Commissioners, the direct
recruits filed O.A. No. 833 of 1999 before the Madras Bench of the Tribunal. At that stage, a reply statement was filed on behalf of the official
respondents. In such reply statement, the official respondents raised the question of limitation. The official respondents took the stand that between
1987 and 1994 at no point of time the requirement of direct recruit Appraisers had been met in full and vacancies always existed against direct
recruit quota, which necessitated giving of promotion to the post of Appraisers. It was further indicated :-
... The Supreme Court judgment did not give any direction to the effect that on joining of one Direct Recruit Appraiser, one of the Promotee
Appraiser who is officiating on ad-hoc basis against a Direct Recruit vacancy should be reverted. The Supreme Court judgment is not to the effect
that once a Direct Recruit is available for appointment, the Respondents 3 to 14 in the O.A. No. 39 of 1988, 162 of 1988 and 168 of 1988 ought
to have been reverted to the lower post. The very idea of effecting promotion against Direct Recruit vacancies is to make the working strength
equivalent to the sanctioned strength. If there were vacancies inspite of Direct recruit joining, then going by the idea of filling all the vacancies had to
continue for the reasons mentioned earlier. This has resulted in adjusting the adhoc promotees against the vacancies, allowing them to continue and
not to revert them. This was necessitated out of public interest and not to favour the promotees. Further at no point of time any Direct Recruit
Appraiser was turned away for want to Direct Recruit vacancy.
At that stage, the official respondents took the stand that seniority given to the promotees from the date of initial ad hoc promotion was correct
in the light of the subsequent decision of the Supreme Court in Gaya Baksh Yadav''s case as such seniority had been counted from the date of
continuous officiation.
The Madras Bench of the Tribunal by its judgment dated 17.10.2000, dismissed O.A. No. 833 of 1998 filed by the direct recruits. The first
conclusion of the Tribunal is to the effect that the Original Application filed by the direct recruits was barred by limitation. The Tribunal also
rejected the contention of the direct recruits by relying upon the decision of the Supreme Court in Gaya Baksh Yadav''s case. Such decision of the
Tribunal is the subject matter of challenge in W.P. No. 15158 of 2002, which had been filed by the direct recruits.
While the dispute relating to seniority of the direct recruits vis-�-vis the promotees in the Custom House of Madras was thus pending before
the Madras Bench of the Tribunal or the High Court at Madras, similar dispute was raised by the direct recruits posted in Bombay Custom House
before the Bombay Bench of the Tribunal in O.A. No. 855 of 1998. Such application was filed by All India Customs Officers (Direct Recruit
Appraisers) Association along with two other direct recruits. Apart from the Union of India and the Chairman, Central Board of Excise and
Customs, All India Customs Appraising Officers'' Federation, purportedly representing the promotees, was impleaded as Respondent No. 3. The
Bombay Bench of the Tribunal referred to the observation of the Supreme Court in Gaya Baksh Yadav''s case to the effect that allocation of at
least 50% posts in favour of the direct recruits must be ensured at all times and direct recruits and promotee Appraisers will be entitled to
placement in the joint seniority list on the basis of their continuous officiation and observed :-
Applicants'' case is that Direct Recruits for all times, entitled to 50% of the post of Appraisers. After the promulgation of 1961 Recruitment
Rules, which were in force on 31.12.1987, every year the intake of promotee Appraisers has been far in excess of their entitlement of 50%. As
such, promotion of persons which were made beyond 50% has to be reckoned as promotions contrary to the Recruitment Rules and general
principles of Seniority, 1959.
The Bombay Bench of Central Administrative Tribunal also referred to the decision of the Supreme Court in the case of All India Federation of
Central Excise v. Union of India 1997 SCC (L & S) 159 and ultimately held that the promotees cannot take advantage of any promotion beyond
the percentage applicable to them as per 1961 Rules and such promotion beyond the prescribed limit should be considered as promotion de hors
the Rules. It was further concluded that the persons promoted on ad hoc basis cannot claim the benefit of seniority. Ultimately, the seniority list
dated 12.11.1997 was quashed and the official respondents were directed to review positions of those who had been promoted beyond 50% of
their quota on ad hoc basis which is violative of the terms of Rule 4(c) of 1961 Recruitment Rules and General Principles of Seniority, 1959. It is
not in dispute that a writ petition has been filed against the aforesaid decision and is pending before the Bombay High Court.
In purported exercise of the directions so issued by the Bombay Bench of the Tribunal, the Union Government and the official respondents
have issued another draft list of seniority, wherein the position of some of the ad hoc promotees has been pushed down and some of the direct
recruits have been shown as senior. The official respondents have purported to follow the principle of seniority on the basis of rotation. On the
issuance of such draft seniority list, apprehending that further promotion to the next promotional post from the Appraiser would take place on the
basis of such draft seniority list, two of the ad hoc promotees who have been regularised subsequently have filed O.A. Nos. 408 and 419 and of
2005 and the one promoted for the first time on regular basis has filed O.A. No. 566 of 2005 before the Madras Bench of the Tribunal.
The main prayer in such Original Applications is to the effect that no promotion should be effected on the basis of the draft seniority list and
promotion, if any, should be done on the basis of seniority list dated 12.11.1997.
Such Original Applications have been disposed of by common order dated 9.8.2005 by the Madras Bench of the Tribunal by observing that
the Madras Bench of the Tribunal is bound by the decision of the Bombay Bench of the Tribunal and since the matter was pending in the Bombay
High Court, the promotees have to pursue their remedy either in the Bombay High Court or await for the final outcome of the litigation. The three
writ petitions, namely, W.P. Nos. 39564, 39583 and 26975 of 2005 are filed by the promotees against such order of the Tribunal.
In the above backdrop, stage is now set to advert to the thorny issue. The main contention raised by the promotees is to the effect that in view
of the decision of the Supreme Court in Gaya Baksh Yadav''s case, seniority had been rightly counted from the date of continuous officiation and
the seniority list thus finalised in November, 1997 was correct and, therefore, there was no occasion to issue a further draft seniority list. It is
further contended that at any rate no promotion should be effected on the basis of the draft seniority list by ignoring the earlier seniority list, which
was final.
The stand of the direct recruits is to the effect that those promotees, who had been promoted on ad hoc basis prior to 31.12.1987 or even
after 1.1.1988, in excess of 50% available to the promotees must be considered as purely ad hoc promotees and cannot claim any seniority on
their subsequent regularisation from the date of initial ad hoc promotion and their seniority should be counted only from the date when they were
regularly promoted within 50% available to them.
So far as the official respondents are concerned, there has been a discernible shift in their stand like shifting sand. The contention of the Union
Government and the official respondents at present is to the effect that the promotees had no right to get any promotion beyond the maximum of
50%, as envisaged under Rule 4(c) of 1961 Rules, and giving them ad hoc promotion did not clothe them with any right to claim seniority from the
date of their ad hoc promotion. It is their further stand that seniority has to be now fixed after 1.1.1988 by following quota as well as rotation rule
and accordingly the draft seniority list has been prepared.
In the three writ petitions, namely, W.P. Nos. 39564, 39583 and 26975 of 2005, filed by the promotees, the specific stand of the official
Respondents is to the effect that ad hoc seniority list has not been finalised, but since many promotional posts are available, steps are being taken
to fill up the promotional post in the rank of Assistant Commissioner on ad hoc basis, subject to finalisation of seniority list and subject to various
litigations pending before different courts and if the position relating to seniority would subsequently change, obviously, there would be a review of
the situation even relating to the question of promotion.
Learned counsels appearing for the promotees have pointed out that in view of the specific stand taken by the Union Government during earlier
litigations before Madras Bench and even before Bombay Bench of the Tribunal, the Union Government should not be permitted to take a different
stand at this stage. However, we are not inclined to consider the above submission as even assuming that the Union of India should not be
permitted to take a different stand, it is obvious that the direct recruits are not bound by any stand taken by the Union of India at different times
and, therefore, the matter has to be decided on the basis of interpretation of the Rules and the relevant decisions.
The O.A. No. 833 of 1996 filed by the direct recruits has been rejected on two counts. Firstly, on the ground of limitation and, secondly, on
merit. So far as the question of limitation is concerned, the Tribunal has observed that the draft seniority list had been circulated and some of the
applicants knew of such draft seniority list and even after finalisation of the seniority list, the Original Application was not filed within the prescribed
period of limitation and, therefore, such application is barred by limitation.
In Section 21 of the Administrative Tribunals Act, 1985 the period of limitation is prescribed, but simultaneously power has been conferred on
the Tribunal to condone delay, if any. In the present case, even assuming that the application was barred by limitation, it can be said without fear of
any contradiction that in the peculiar facts and circumstances of the case, delay, if any, was required to be condoned. Apart from the fact that
some representations had been made, the question raised was of seminal importance not only to the Appraisers of Custom House of Madras, but
also throughout India and, therefore, it was required of the Tribunal to gloss over the question of limitation if any. Apart from the above, the
question of limitation has no significant bearing as the matter has now come to High Court not only from the very same litigation but also from other
litigations involving similar question. Moreover, as rightly pointed out by the learned Counsels for the direct recruits as well as the Union
Government, the Bombay Bench of the Tribunal has quashed the seniority list on all India basis and such decision is not confined merely to
Bombay Custom House and the Union of India has been directed to reconsider the question of seniority and, therefore, the technical bar raised by
the Madras Bench of the Tribunal has no significance. To be fair to the learned Counsels appearing for the promotees, it must be said that such
learned Counsels have stated that the question of limitation, has no significance because of the subsequent events including the setting aside of the
seniority list by the Bombay Bench of the Tribunal and they have rightly submitted that the matter has to be decided on its own merit by the High
Court.
The first contention raised in the three writ petitions, namely, W.P. Nos. 26975, 39564 and 39583 of 2005, is the propriety of the action of
the Government in issuing a further draft seniority list when a seniority list had already been prepared and finalised in 1997 and moreover in
contemplating promotion to the next higher post on the basis of such draft seniority list without finalising the question of seniority.
This question raised by the learned Counsels appearing for the promotees can be met with a short answer. In view of the decision of the
Bombay Bench of the Tribunal it cannot be said that ""final seniority list"" circulated in the year 1997 is any longer final. As rightly pointed out by the
learned Counsel appearing for Union of India, in the absence of any stay by the Bombay High Court, the Union Government has sought to
implement the directions without prejudice to the contentions raised in the writ petition. It is also made clear in the counter affidavit that the Union
of India is contemplating to give promotion only on ad hoc basis without prejudice to the claim of any of the Appraiser to be ultimately decided
after finalisation of the seniority list at the end of the myriad of litigations.
Learned Additional Solicitor General has submitted that even in the absence of finalisation of formal seniority list the Government is not
precluded from acting upon the provisions contained in the draft rule or on the basis of the draft seniority list in exigencies of service. In our
opinion, the stand taken by the Union of India cannot be found fault with. The decision of the Bombay Bench of the Tribunal has obviously opened
the door for re-drawing the seniority list and the Central Government has taken steps in that regard by circulating a draft seniority list. Since the
seniority list of 1997 can no longer be said to be the final list, it is open to the Union of India to consider the question of promotion purely on ad
hoc basis including the draft seniority list without conferring any substantive right on such ad hoc promotee.
The main question, of course, relates to the principle on which seniority is to be fixed. In view of the decision of the Supreme Court in Mervyn
Coutindo and Others Vs. Collector of Customs, Bombay and Others, , obviously there is no dispute relating to seniority of the Appraisers (either
direct recruits or promotees) who had been recruited on the basis of the instructions which were applicable before introduction of 1961 Rules.
There is no dispute that after introduction of 1961 Rules, the question of seniority has to be fixed in accordance with such rules which were
interpreted by the Supreme Court in Yadav''s case. Even though Yadav''s case purported to bring all disputes to an end, unfortunately the
litigations have not come to an end. As per the learned Counsels for the promotees, in view of the specific observation of the Supreme Court as
contained in paragraph 16 and the direction contained in paragraph 17 of such decision, seniority has to be reckoned from the date of continuous
officiation of the promotees and on that basis the promotees had been rightly shown as seniors in the seniority list, which was finalised on
12.11.1997.
Learned counsels appearing for the direct recruits (and even the learned Counsels appearing for the Union of India by adopting ""an improved
and new model"" stand) different stand have contended that paragraph 16 of such decision makes it very clear that at least 50% of the vacancies
are ensured at all times in favour of the direct recruits and, therefore, such observation of the Supreme Court obviously means to the extent any
promotee had been promoted by exceeding the balance 50% available to other appointees including the promotees, is thus an encroachment on
the allocation of at least 50% posts for the direct recruits and any such promotee who has been promoted in excess of 50% would obviously be
considered as an ad hoc promotee in fortuitous circumstance and such promotee cannot claim any advantage of seniority from the date of such ad
hoc appointment on his subsequent regularisation. In this context, it is also further submitted by the learned Counsels appearing for the direct
recruits as well as Union of India that in a long line of decisions it has been held that the persons being promoted on ad hoc basis cannot claim any
right of seniority unless the rules so envisage specifically. In this context, it is also pointed out that in the orders relating to promotion of various
claimants now before the Court, it had been specifically indicated that promotion was purely on ad hoc basis which would not give them any right
of regular promotion and subsequently at the time of regular promotion also it was so indicated that their service shall be regularly counted from the
date when they assumed charge. It is therefore contended that in view of the specific terms of the appointment, in view of the settled principle of
law and in view of the fact that direct recruits are ensured allocation of 50% of posts at all times, the contention raised by the promotees cannot be
accepted.
Learned counsels for both sides have placed strong reliance upon the decision of the Supreme Court reported in The Direct Recruit Class-II
Engineering Officers'' Association and others Vs. State of Maharashtra and others, , which is also apparently the basis of the decision in Yadav''s
case, and it is therefore necessary to extract in extenso from the said decision, where the Constitution Bench summarised its conclusions as follows
:-
To sum up, we hold that :
(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according
to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and
made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly
till the regularisation of his service in accordance with the rules, the period of officiating service will be counted.
(C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules
are framed in this regard they must ordinarily be followed strictly.
(D) If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation.
In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the interference is
irresistible that the quota rule had broken down.
(E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following
the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source
inducted in the service at a later date.
(F) Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such
relaxation when there is a deviation from the quota rule.
(G) The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the subject.
(H) If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the
executive instruction has ceased to remain operative.
(I) The posts held by the permanent Deputy Engineers as well as the officiating Deputy Engineers under the State of Maharashtra belonged to the
single cadre of Deputy Engineers.
(J) The decision dealing with important questions concerning a particular service given after careful consideration should be respected rather than
scrutinised for finding out any possible error. It is not in the interest of Service to unsettle a settled position.
With respect to Writ Petition No. 1327 of 1982, we further hold:
(K) That a dispute raised by an application under Article 32 of the Constitution must be held to be barred by principles of res judicata including the
rule of constructive res judicata if the same has been earlier decided by a competent court by a judgment which became final.
In view of the above and the other findings recorded earlier, we do not find any merit in any of the civil appeals, writ petitions and special leave
petitions which are accordingly dismissed.
The learned Counsels appearing for the promotees have submitted that in view of ratio of the aforesaid decision as reflected in 47(B), the
seniority of the promotees should be counted from the date of adhoc promotion, whereas according to the counsels for the Direct Recruits and the
Union of India, para 47(A) is applicable. In order to resolve the controversy, it is necessary to consider some of the decisions touching upon the
question rendered before and after the decision in Direct Recruit''s case. It is significant to observe that in all the cases the ratio of the Direct
Recruit''s case has been clarified and followed.
In V.B. Badami and Others Vs. State of Mysore and Others, , it was observed that where appointment was made in excess of quota, such
temporary promotion would not give any benefit in the matter of seniority.
In AIR 1977 251 (SC) , the question of seniority was in dispute between direct recruits and the promotees to the post of Deputy Collectors in
the State of Gujarat. It was observed inter alia :-
This brief and quick survey of decided cases and the submissions, considered by us in the judicial crucible, yield the following conclusions,
leaving aside the question of ''confirmation'' in service which, in the Gujarat set-up, leaves our controversy untouched; (a) The quota system does
not necessitate the adoption of the rotational rule in practical application. Many ways of working out ''quota'' prescription can be devised of which
rota is certainly one.
...
(e) Promotees who have been fitted into vacancies beyond their quota during the period B - the year being regarded as the unit - must suffer
survival as invalid appointees acquiring new life when vacancies in their quota fall to be filled up. To that extent they will step down, rather be
pushed down as against direct recruits who were later but regularly appointed within their quota.
In Keshav Chandra Joshi and others etc. Vs. Union of India and others, , Justice K. Ramaswamy, speaking for the Bench, after referring to
the propositions A and B in paragraph 47 of Direct Recruits case, observed :-
As stated, the counsel for the promotees placed strong reliance on proposition ''B'' while the counsel for the Direct Recruits relied on
proposition ''A''. The controversy is as to which of the propositions would apply to the facts of this case. The proposition ''A'' lays down that once
an incumbent is appointed to a post according to rules, his seniority has to be counted from the date of his appointment and not according to the
date of his confirmation. The latter part thereof amplifies that where the initial appointment is only ad hoc and not according to rules and is made as
a stop gap arrangement, the period of officiation in such post cannot be taken into account for reckoning seniority. The quintessence of the
propositions is that the appointment to a post must be according to rules and not by way of ad hoc or stop gap arrangement made due to
administrative exigencies. If the initial appointment thus made was de hors the rules, the entire length of such service cannot be counted for
seniority. In other words the appointee would become a member of the service in the substantive capacity from the date of his appointment only if
the appointment was made according to rules and seniority would be counted only from that date. Propositions ''A'' and ''B'' cover different
aspects of one situation. One must discern the difference critically. Proposition ''B'' must, therefore, be read along with para 13 of the judgment
wherein the ratio decidendi of Narender Chadha was held to have considerable force. The latter postulated that if the initial appointment to a
substantive post or vacancy was made deliberately, in disregard of the rule and allowed the incumbent to continue on the post for well over 15 to
20 years without reversion and till the date of regularisation of the service in accordance with the rules, the period of officiating service has to be
counted towards seniority. This Court in Narender Chadha case was cognizant of the fact that the rules empower the government to relax the rule
of appointment. Without reading paragraph 13 and Proposition ''B'' and Narender Chadha ratio together the true import of the proposition would
not be appreciated. We would deal with the exercise of power of relaxing the rule later. After giving anxious consideration, we are of the view that
the latter half of Proposition ''A'' would apply to the facts of the case and the rule laid down in that half is to be followed. If the concerned rules
provide the procedure to fix inter se seniority between direct recruits and promotees, the seniority has to be determined in that manner.
Accordingly we have no hesitation to hold that the promotees have admittedly been appointed on ad hoc basis as a stop gap arrangement,
though in substantive posts, and till the regular recruits are appointed in accordance with the rules. Their appointments are de hors the rules and
until they are appointed by the Governor according to rules, they do not become the members of the service in a substantive capacity. Continuous
length of ad hoc service from the date of initial appointment cannot be counted towards seniority.
In State of W.B. and Others Vs. Aghore Nath Dey and Others, , it was observed :-
We shall now deal with the conclusions (A) and (B) of the Constitution Bench in the Maharashtra Engineers case quoted above.
there can be no doubt that these two conclusions have to be read harmoniously, and conclusion (B) cannot cover cases which are expressly
excluded by conclusion (A). We may, therefore, first refer to conclusion (A). It is clear from conclusion (a) that to enable seniority to be counted
from the date of initial appointment and not according to the date of confirmation, the incumbent of the post has to be initially appointed ''according
to rules''. The corollary set out in conclusion (A), then is, that ''where the initial appointment is only ad hoc and not according to rules and made as
a stopgap arrangement, the officiation in such posts cannot be taken into account for considering the seniority''. Thus, the corollary in conclusion
(A) expressly excludes the category of cases where the initial appointment is only ad hoc and not according to rules, being made only as a stopgap
arrangement. The case of the writ petitioners squarely falls within this corollary in conclusion (A), which says that the officiation in such posts
cannot be taken into account for counting the seniority.
This being the obvious inference from conclusion (A), the question is whether the present case can also fall within conclusion (B) which deals
with cases in which period of officiating service will be counted for seniority. We have no doubt that conclusion (B) cannot include, within its ambit,
those cases which are expressly covered by the corollary in conclusion (A), since the two conclusions cannot be read in conflict with each other.
The question, therefore, is of the category which would be covered by conclusion (B) excluding therefrom the cases covered by the corollary
in conclusion (A).
In our opinion, the conclusion (B) was added to cover a different kind of situation, wherein the appointments are otherwise regular, except for
the deficiency of certain procedural requirements laid down by the rules. This is clear from the opening words of the conclusion (B), namely, ''if the
initial appointment is not made by following the procedure laid down by the rules'' and the latter expression ''till the regularisation of his service in
accordance with the rules''. We read conclusion (B), and it must be so read to reconcile with conclusion (A), to cover the cases where the initial
appointment is made against an existing vacancy, not limited to a fixed period of time or purpose by the appointment order itself, and is made
subject to the deficiency in the procedural requirements prescribed by the rules for adjudging suitability of the appointee for the post being cured at
the time of regularisation, the appointee being eligible and qualified in every manner for a regular appointment on the date of initial appointment in
such cases. Decision about the nature of the appointment, for determining whether it falls in this category, has to be made on the basis of the terms
of the initial appointment itself and the provisions in the rules. In such cases, the deficiency in the procedural requirements laid down by the rules
has to be cured at the first available opportunity, without any default of the employee, and the appointee must continue in the post uninterruptedly
till the regularisation of his service, in accordance with the rules. In such cases, the appointee is not to blame for the deficiency in the procedural
requirements of the rules being fulfilled at the earliest. In such cases also, if there be any delay in curing the defects on account of any fault of the
appointee, the appointee would not get the full benefit of the earlier period on account of his default, the benefit being confined only to the period
for which he is not to blame. This category of cases is different from those covered by the corollary in conclusion (A) which relates to appointment
only on ad hoc basis as a stopgap arrangement and not according to rules. It is, therefore, not correct to say that the present cases can fall within
the ambit of conclusion (B), even though they are squarely covered by the corollary in conclusion (A).
In State of Maharashtra and Another and A.W. Dhope and Others Vs. Sanjay Thakre and Others, it was observed :-
Insofar as in the second aspect of the case is concerned, Shri Bhandare, appearing for the State, is at pains to urge that in view of what was held
by a three-Judge Bench of this Court in State of W.P. v. Aghore Nath Dey the present was pre-eminently a fit case where the service rendered by
the promotees, even though ad hoc, was required to be counted for the purpose of seniority. We have two observations to make regarding this
submission. The first is that Aghore Nath was not a case of claim by the promotees for seniority over direct recruits; as was in the cases of
Janardhana and Narender Chadha, ratio of which cases was not applied in Aghore Nath case for the reason that the cases did not deal with inter
se seniority between direct recruits and promotees. So the ratio of Aghore Nath case cannot apply to the facts of the present case as here we are
concerned with inter se seniority. This apart, a perusal of Aghore Nath decision shows that benefit of ad hoc service would not be admissible if
appointment be in violation of rules. Now, if the quota rule had not broken down as held by the Tribunal which view we have affirmed, the
appointment of promotes has to be regarded as in violation of rules.
...
For the aforesaid reason, what was stated by the Constitution Bench in Direct Recruit Class II Engineering Officers'' Assn. case would not also
apply because to get benefit of what was stated in sub-para (B) of para 44 (1990) 2 SCC 745 , para 47(B)], which is strongly pressed into
service by Shri Dholakia, the appointment has to be as per the rules, which was not so in the present case so far as the promotees are concerned.
In (1996) 2 SCR 59 , after referring to Direct Recruits case in para 9, the Supreme Court observed:-
We are not concerned with the other propositions laid down by this Court in the present case. In the case in hand the initial appointment of the
respondents on promotion not having been made following the procedure laid down by the Recruitment Rules of 1965 and even though they are
continuing in the post uninterruptedly but the Public Service Commission having not approved their appointments as yet, proposition B above will
have no application. Consequently, applying proposition A above, the appellants-direct recruits must be held senior to the respondents - private
respondents - ad hoc promotees. The Tribunal obviously erred in law in not following the aforesaid authoritative pronouncement of this Court for
determination of the inter se seniority between direct ecruits and the promotees.
In the three-Judge Bench decision of this Court in the case of State of W.B. v. Aghore Nath Dey, this Court held: (SCC p.382, para 22)
... that to enable seniority to be counted from the date of initial appointment and not according to the date of confirmation, the incumbent of the
post has to be initially appointed ''according to rules''. The corollary set out in conclusion (A), then is, that ''where the initial appointment is only ad
hoc and not according to rules and made as a stopgap arrangement, the officiation in such posts cannot be taken into account for considering the
seniority''.
It was thus held that conclusions A and B of the Constitution Bench in Direct Recruits case have to be read harmoniously and conclusion B
cannot cover cases which are expressly excluded by conclusion A.
In a more recent case of V. Sreenivasa Reddy v. Govt. of A.P., where one of us (brother Ramaswamy, J.) was a member, all the decisions of
this Court on the point have been considered and it has been laid down that temporary or ad hoc appointments are not appointments in
accordance with the rules and the temporary service cannot be counted towards the seniority.
In Dr. Anuradha Bodi and Others Etc. Etc. Vs. Minicipal Corporation of Delhi and Others, , while considering the question of seniority of ad
hoc appointees, the Direct Recruit''s case and Aghore Nath Dey''s case were referred to and it was observed that Paragraph (A) sub para would
be applicable. It was further observed:
If the facts of these two cases are analysed in the light of the aforesaid decisions, there can be no doubt whatever that the petitioners fall within
the corollary in Conclusion (A). The orders of appointment issued to the petitioners are very specific in their terms. Though the recruitment rules
came into force on 6-8-1982, the appointments were not made in accordance therewith. They were ad hoc and made as a stopgap arrangement.
The orders themselves indicated that for the purpose of regular appointment the petitioners were bound to pass the UPSC examination in the
normal course in the direct competition. Hence the petitioners will not fall under the main part of Conclusion (A) or Conclusion (B) as contended
by the learned Counsel for the petitioners.
In Suraj Parkash Gupta and Others Vs. State of Jammu & Kashmir Others, , the Supreme Court distinguished G.S. Lamba and Others Vs.
Union of India (UOI) and Others, and Narender Chadha and Others Vs. Union of India and Others, (latter case had been noticed in The Direct
Recruit Class-II Engineering Officers'' Association and others Vs. State of Maharashtra and others, by observing that recent trend of cases in this
Court is entirely different.
The decisions of this Court have recently been requiring strict conformity with the Recruitment Rules for both direct recruits and promotees.
The view is that there can be no relaxation of the basic or fundamental rules of recruitment. In Keshav Chandra Joshi v. Union of India the Rule
permitted relaxation of the conditions of service and it was held by the three-Judge Bench that the Rule did not permit relaxation of Recruitment
Rules. The words ""may consult PSC"" were, it was observed, to be read as ""shall consult PSC"" and the Rule was treated as mandatory. In Syed
Khalid Rizvi and Others and Ramesh Prasad Singh and Others Vs. Union of India (UOI) and Others, decided by a three-Judge Bench, a similar
strict principle was laid down. The relevant Rule - Rule 3 of the Residuary Rules (see p.603, para 33) in that case did permit relaxation of the
Rules"". Even so, this Court refused to imply relaxation of Recruitment Rule and observed : (SCC pp.603-04, para 33)
The condition precedent, therefore, is that there should be an appointment to the service in accordance with rules and by operation of the rule,
undue hardship has been caused, .... It is already held that conditions of recruitment and conditions of service are distinct and the latter is preceded
by an appointment according to rules. The former cannot be relaxed.
Similarly, in State of Orissa v. Sukanti Mohapatra it was held that though the power of relaxation stated in the rule was in regard to ""any of the
provisions of the rules"", this did not permit relaxation of the rule of direct recruitment without consulting the Commission and the entire ad hoc
service of a direct recruit could not be treated as regular service. Similarly, in M.A. Haque (Dr) v. Union of India it was held that for direct
recruitment, the rules relating to recruitment through the Public Service Commission could not be relaxed. In J&K Pubic Service Commission v.
Dr. Narinder Mohan it was held that the provisions of the J&K Medical Recruitment Rules could not be relaxed for direct recruitment. The
backdoor direct recruitments, could not be permitted. (See also Arundhati Ajit Pargaonkar (Dr) v. State of Maharashtra). In Surinder Singh
Jamwal (Dr) v. State of J&K this Court directed the direct recruits to go before the Public Service Commission.
40.1 After concluding that quota rule had not broken down, regarding applicability on the basis of rotation, it was observed :-
We shall next refer to the contention for the direct recruits that ""rota quota"" rule is to be applied. Before us, it is not disputed by the learned
Counsel for the direct recruits that in the Recruitment Rules, 1978, there is only a quota rule and that no rota rule has been expressly prescribed.
Question is whether ""rota"" can be implied
The direct recruits contend that rota is to be implied or read into the ""quota"" rule. It is also argued that there has been a previous practice of
applying a rota and that this fact stands conceded in the counter-affidavit filed by the Government in SWP No. 824-B of 1994. Reliance is also
placed on the Cabinet note of December 1997 where the view of the Law Department that quota-rota rule is to be applied, is referred to.
In our opinion, in view of the admission before us by all parties that there is no express rota rule, the decision of the High Court that ""rota
principle applied cannot be upheld. As held in N.K. Chauhan v. State of Gujarat by Krishna Iyer, J. there is no question of a quota being
necessarily ""interlocked"" with rota. It is not necessarily inscribed within every quota rule. Again in B.S. Yadav v. State of Haryana Chandrachud,
C.J. held that a ""quota"" does not imply a rota. The first part of the contention of the direct recruits is without any substance.
Rota cannot be brought in only because of past practice
So far as the second part of the contention that there has been previous practice, we may refer to Shri L. Chandrakishore Singh Vs. State of
Manipur and Others, . There it was held that a practice must be consistent with rules and that a practice not consistent with rules is not acceptable.
In that case, the practice of not considering for promotion probationers and considering only confirmed candidates was held not consistent with the
Rules and could not be permitted. Similarly, in D. Stephen Joseph v. Union of India it was held that a past practice which was de hors a rule could
be of no help. The question in that case was as to whether the requirement of particular years of service with graduation for promotion meant
service after graduation or service during which a degree qualification was acquired. A practice of counting three years after obtaining qualification
was not accepted. In that view of the matter, the second part of this contention also goes.
Hence, it must be held that there is no rota coupled with quota but that there is only a quota rule. Point 2 is decided accordingly.
40.2 In para 72 Krishi Utpadan Mandi Samiti, Muzaffarnagar (U.P.) Vs. Ratan Prakash Mangal and Others, was distinguished as the service
rendered on ad hoc basis was against the quota and the post was within the direct recruit quota. It was observed :
We shall next refer to another set of cases relied upon by the direct recruits where, on facts, the promotees were not given the benefit of ad
hoc/stopgap service. Here the service rendered by the promotees was either outside quota or the candidates were not eligible by the date the
order of regularisation was passed or were not having the required experience. C.K. Antony v. B. Muraleedharan arising from Kerala State has
some special features. There was a rule similar to Rule 23 of the J&K Rules and Rule 23(a) of the Andhra Pradesh Rules. The said Rule permitted
retrospective regularisation of the promotees from anterior dates but this Rule stated that the said regularisation should be ""without prejudice to
seniority"". It was no doubt interpreted that the Rule meant that the seniority of direct recruits could not be affected. The question as to when it
could be said that the seniority of a direct recruit would be prejudiced, was not elaborated. Whether the case of direct recruits would be
prejudiced even if the promotees were given seniority from an anterior date upon a post within their quota, was not decided. Further, on facts, the
earlier ad hoc promotion of the promotees was not against cadre posts but was in excess of the quota. Obviously, it could not count for seniority in
view of Direct Recruit case. Any regularisation of such service in a direct recruitment post would definitely prejudice the seniority of direct recruits.
In view of the above peculiar features, the case is clearly distinguishable.
...
Summarising the position, we therefore hold that the ad hoc/stopgap service of the promotees cannot be treated as non est merely because
PSC was not consulted in respect of continuance of the ad hoc/stopgap service beyond six months. Such service is capable of being regularised
under Rule 23 of the J&K (CCA) Rules, 1956 and rectified with retrospective effect from the date of occurrence of a clear vacancy in the
promotion quota, subject to eligibility, fitness and other relevant factors. There is no ""rota"" rule applicable. The ""quota"" rule has not broken down.
Excess promotees occupying direct recruitment posts have to be pushed down and adjusted in later vacancies within their quota, after due
regularisation. Such service outside the promotee quota cannot count for seniority. Service of the promotees which is regularised with retrospective
effect from the date of vacancies within the quota counts for seniority. However, any part of such ad hoc/stopgap or even regular service rendered
while occupying the direct recruitment quota cannot be counted. Seniority of the promotees or transferees is to be fixed as per quota and from the
date of commencement of probation/regular appointment as stated above. Seniority of direct recruits is from the date of substantive appointment.
Seniority has to be worked out between direct recruits and promotees for each year. We decide Point 3 accordingly.
40.3 In paragraphs 80 and 81, it was observed that direct recruits cannot claim appointment from the date of vacancy within quota before their
selection. It was further observed :
... in service jurisprudence, a direct recruit can claim seniority only from the date of his regular appointment. He cannot claim seniority from a date
when he was not borne in service. This principle is well settled."" (For the aforesaid purpose, reliance was placed upon AIR 1977 251 (SC) (cited
above), A. Janardhana Vs. Union of India (UOI) and Others, , (1987) Suppl. SCC 763 (A.N. Pathak v. Secretary to the Government).
In A.G. Sainath Reddy Vs. The Govt. of A.P. and Others, , the Department had considered the question of seniority for the promotee from
the date of ad hoc promotion, which was challenged by the direct recruits before the Tribunal which allowed such application. In appeal, the
Supreme Court upheld such decision of the Tribunal by following the ratio of Aghore Nath Dey''s case.
In M. Subba Reddy and Another Vs. A.P. State Road Transport Corporation and Others, by distinguishing the Direct Recruit''s case and by
following the subsequent decision in State of W.B. and Others Vs. Aghore Nath Dey and Others, , the majority observed :-
The appellants have relied upon the judgment of this Court in Direct Recruit Class II Engg. Officers'' Assn. Case. In that matter, an unusual
situation had developed under which the rota-and-quota system had broken down. The promotees had worked for twenty years without being
reverted and in view of that fact, the Constitution Bench of this Court confirmed the principles of counting towards seniority, the period of
continuous officiation. The said judgment has no application to the facts of this case. In the present case, the argument of the appellants is that on
the date when the appellants were regularised, there were no direct recruits available and consequently they cannot be pushed down in the
integrated seniority list. Hence, the judgment of this Court in the case of Direct Recruit Class II Engg. Officers'' Assn. has no application to the
present case. In fact, in the later judgment of this Court in the case of State of W.B. v. Aghore Nath Dey it has been held, relying on the judgment
in the case of Direct Recruit Class II Engg. Officers'' Assn. that seniority has to be counted from the date of initial appointment and not from the
date of confirmation provided the initial appointment is according to the rules. But the corollary to the above proposition is that where initial
appointment is only ad hoc and not according to the rules, the officiation cannot be taken into account for considering the seniority. The ratio of the
judgment of this Court in the case of Aghore Nath Dey is that the benefit of ad hoc or temporary service is not admissible, if appointment was
outside the rules. Applying the ratio of the said judgment to the facts of this case, the benefit of temporary promotion to the appellants under
Regulation 30 was not admissible to them for computation of seniority.
It was, however, urged on behalf of the appellants that the position changed when vacancies became available in the promotion quota and the
appellants came to be regularised vide order dated 9-9-1988. By the said order, according to the appellants, regularisation took place with
retrospective effect from the dates indicated against their names and against the post earmarked for promotion and consequently in the integrated
seniority list, they were not liable to be pushed down below direct recruits. We do not find any merit in this argument. Under Regulation 30 read
with Regulation 34, temporary promotees were liable to be reverted as and when approved direct recruits became available. The promotees were
liable to be replaced by direct recruits. Under Regulation 34, the said revertees were to be considered for repromotion only against the quota of
vacancies reserved for promotees. This is clear from the terms of the order dated 9-9-1988. In the case of U.P. Secretariat U.D.A. Assn. v. State
of U.P. it has been held that a direct recruit is to be treated as in service from the date he joins it, whereas the promotee has to be fitted into
service from the date when he becomes entitled to fitment in accordance with the quota-and-rota rule prescribed under the rules. In the case of
A.N. Sehgal v. Raje Ram Sheoran one of the arguments advanced on behalf of the promotees was that they were promoted as Executive
Engineers against regular vacancies and they continued in service without break from the respective dates of their promotion, therefore, they were
members of the service in substantive capacity from respective dates of promotion. It was argued that the direct recruit Shri Raje Ram was
recruited long after the promotion of the appellants (promotees) and, therefore, the promotees cannot be pushed down and placed below the
direct recruit. On examination of the rules, this Court found that recruitment to the service was from three sources, namely, direct recruitment,
promotion and by transfer. A ratio was prescribed under Rule 5(2) between the promotees and direct recruits. The ratio was 1:1. It was held that
Rule 5(2) had restricted the number of posts to promotees at 50%. Under the proviso to Rule 5(2), it was laid down that the rigour of 50% quota
maybe relaxed in cases where direct recruits were not available. On reading Rule 5, it was held by this Court that a promotee within his quota
under Rule 5 got his seniority from the date when the vacancy arose in his quota. It was held that the promotee occupying the post within 50%
quota of the direct recruit acquired no right to the post and should yield to the direct recruit though promoted later than him. It was held that the
seniority of the promotee has to be reckoned only from the date of availability of the post and, therefore, he has to be placed below his immediate
senior promotee within the said quota. The officiating period of the promotee between the date of initial promotion and the date of availability of
vacancy would stand excluded. A direct recruit on promotion within his quota, though later to the promotee is interposed in between the periods
and interjects the promotee''s seniority; he snaps the links in the chain of continuity and steals a march over the promotee. It has been further held
that the rule of quota is a statutory rule and must be strictly implemented. The result of pushing down the promotees may work hardship but it is
unavoidable as it would otherwise nullify the statutory rules. In the case of U.P. Secretariat U.D.A. Assn. it has been held by this Court that mere
inaction on the part of the Government cannot be made a ground to contend that the quota rule has broken down. In the present case, in the
absence of direct recruitment, the appellants could not have got seniority over direct recruits. Where there is inaction on the part of the
Government or employer or imposed ban on direct recruitment in filling up the posts meant for direct recruits, it cannot be held that the quota has
broken down.
In T. Vijayan and Others Vs. Div. Railway Manager and Others, , the persons who had been promoted on ad hoc basis and subsequently
regularised were given seniority from the date of initial ad hoc promotion by referring to Direct Recruit''s case as well as Aghore Nath Dey''s case
and by following Keshav Deo and Another Vs. State of U.P. and Others, and Ajit Kumar Rath Vs. State of Orissa and Others, . However, in the
above case there was no promotion encroaching upon the quota of other category and this decision is therefore distinguishable.
In Santosh Kumar Vs. State of Andhra Pradesh and Others, , the subsequent regularisation of a temporary promotee with retrospective effect
was found justified by applying the ratio of the Direct Recruit case. However, in the said case, it was found that promotion given was within the
promotion quota and, therefore, it was observed that direct recruit, who was recruited later on, could not challenge. This decision is
distinguishable.
From the aforesaid decisions, it is apparent that where the appointment is in excess of the quota, the appointees in excess of such quota would
obviously be held to be recruits de hors to the rules and as such, would not have any right to claim seniority (more particularly when such
promotion is explicitly on ad hoc basis).
It cannot be construed that the Supreme Court in Gaya Baksh Yadav case intended to depart from the well settled principles relating to
fixation of seniority and it cannot be understood that it was laid down even if the promotion is purely ad hoc and not within the quota for all classes,
yet such seniority should be counted from the date of ad hoc promotion. As a matter of fact, the Supreme Court has pointedly referred to the
principles enumerated in Direct Recruits case. The Direct Recruits case has been consistently interpreted subsequently to mean that where there is
an ad hoc promotion coming within para 47(A), para 47(B) of such decision would not be applicable. There are several decisions of the Supreme
Court wherein it was observed that when a quota has been fixed by the Rules, any promotion made contrary to the quota rule should be taken to
be ad hoc or fortuitous giving no right to such person to claim seniority from the date of ad hoc promotion. This applies with more vigour to a case
where promotion order itself specifically says that promotion is purely ad hoc and does not give any right to claim promotion on substantive basis
as in the present case.
Of course, when the court comes to the conclusion that quota rule has broken down, obviously the appointment made in excess of the quota
can be counted. However, it is evident that before coming to the conclusion that quota has broken down, the Court has to arrive at a definite
conclusion that consistently for a considerable length of time, the appropriate authority had consciously departed from the quota.
In the present case, it cannot be said that the quota had broken down. On the other hand, the Supreme Court in Gaya Baksh Yadav''s case
categoricaklly observed that at least 50% is preserved for the direct recruits at all times. So far as ad hoc promotion before December, 1987 is
concerned, to the extent that such appointment had been made within the maximum 50% available for the promotees, the observation of the
Supreme Court in Gaya Baksh Yadav''s case i.e., seniority should be counted from the date of continuous officiation, is required to be followed.
However, it cannot be said that the Supreme Court also intended to lay down an inexorable principle that the promotees promoted on ad hoc
basis before December, 1987 in excess of maximum 50% available to the promotees, on their subsequent regularisation after 1988 Rules came
into force, were also to be given seniority from the date of their ad hoc promotion. Such interpretation would rather militate against the observation
of the Supreme Court that the direct recruits are ensured 50% of the posts at all times.
In view of the discussion, the inevitable conclusion is as follows :-
(A) Promotees who had been regularised by December, 1987 should be in the seniority list on the basis of continuous officiation.
(B) Ad hoc promotees within permissible 50%, who were regularised after 1988 Rules came into force can claim seniority from the date of their
ad hoc promotion, provided their selection was otherwise in accordance with the 1961 Rules. However, ad hoc promotees promoted before
December, 1987 in excess of maximum permissible 50% of the post, on their subsequent regularisation after 1988 Rules came into force can claim
seniority from the date of regular promotion and not from the date of their ad hoc promotion.
(C) The seniority of a direct recruit can be counted from the date of appointment.
(D) There is nothing in 1988 Rules to indicate that seniority has to be fixed on the basis of principle of rotation. Therefore, to the extent, a
particular appointment is within the quota earmarked in 1988 Rules seniority has to be counted from the date of the substantive appointment and if
there has been any appointment in excess of the quota for a particular year, for a particular category, obviously such a person must be pushed
down and should be adjusted against the quota of the category concerned during the subsequent years. (E) Seniority need not be on the basis of
rotation unless there is any specific instruction to that effect validly issued after coming into force of 1988 Rules and the Department cannot fall
back on the instructions which had been issued before 1961 or before 1987 as it cannot be said that such instructions are in vogue even after new
Rules have come into force.
The Supreme Court has recognised the right of an employer to give ad hoc promotion notwithstanding that draft rules had not been finalised or
even draft seniority list had not been finalised on some reasonable basis. However, if any such ad hoc promotion is given, it is obvious that such ad
hoc promotion would not give any substantive right to such person and such person is liable to be reverted on subsequent finalisation of the
seniority list and regular promotion of any senior officer. This observation is being made in view of the submission that many promotional posts are
lying vacant. As a matter of fact, in the affidavit it has been clarified by the Union Government that only ad hoc promotion is intended to be given.
In view of the aforesaid conclusions, the prayer made in various writ petitions are to be specifically considered.
Prayer in W.P. No. 26975 of 2005 is for issuing a writ of Certiorarified Mandamus for quashing the order dated 9.8.2005 and further directing the
respondents 2 to 4, namely, Union of India and other officials, to finalise the seniority list in the light of objections made by the petitioner before
making promotion to the post of Assistant Commissioner of Customs and Central Excise (Group A) Post.
Similarly, in W.P. Nos. 39564 of 2005 and 39583 of 2005, prayer has been made for quashing the common order dated 9.8.2005 passed by the
Tribunal and for quashing the seniority list dated 16.12.2004.
The Tribunal has observed that the concerned promotees have to await the decision of the Bombay High Court or get themselves impleaded
there to pursue their remedy. The stand of the Union of India is that seniority list is being finalised but the Union of India is keen to promote
persons on the basis of draft seniority list which would be subject to the finalisation of the seniority list. The main contention of the promotees is that
on the basis of continuous officiation from the date of ad hoc promotion they should be considered as seniors to the direct recruits who have been
appointed subsequently.
This contention is not acceptable in view of the analysis of position of law made earlier to the extent, any promotee who had been promoted
before December, 1987 within the maximum 50% available for the promotees, his seniority can be counted from the date of continuous officiation,
whereas, a promotee promoted on ad hoc basis before December, 1987 in excess of 50% and regularised against a regular vacancy after 1988
Rules came into force, cannot claim seniority. In view of the specific stand of the Union of India that it is only contemplating to give ad hoc
promotion on the basis of the draft seniority list, the promotees cannot be said to be aggrieved as the question of regular promotion would
obviously depend upon subsequent finalisation of the seniority list. While giving any such promotion, the Union of India should make it clear that the
promotion is ad hoc subject to finalisation of the seniority list.
Subject to these observations, W.P. Nos. 26975, 39564 and 39583 of 2005 are disposed of.
So far as W.P. No. 15158 of 2002 is concerned, such writ petition is to be allowed and the order or the Tribunal cannot be upheld in view of
the position of law analysed earlier.
In the result, W.P. Nos. 26975, 39564 and 39583 of 2005 are disposed of subject to the observations made above and W.P. No. 15158 of
2002 is allowed. There would be no order as to costs. Consequently, the connected miscellaneous petitions are closed.