State of Karnataka vs Chikkabasavaiah and Others

Chandrashekhar, CJ.-This is an appeal from the order of Rama Jois, J., in W.P. No. 4614 of 1976. Respondent-1 in the Writ Petition the State of Karnataka, has presented this appeal.

Respondents 1 to 10 herein (hereinafter referred to as the petitioners) who were direct recruits to the posts of Assistants in the Karnataka Government Secretariat, had presented W.P. No. 4614 of 1976 challenging the final Gradation List of Assistants in the Karnataka Government Secretariat (hereinafter referred to as the Gradation List) set out in the official Memorandum No. GAD 173 AST. 75 dated 15-4-76 (produced as Ex-B in the writ petition). They had prayed for quashing the Gradation List and also for issue of a mandamus directing the State Government to determine the number of vacancies that arose every year from 1-11-56 till their (the petitioners) recruitment was made and to assign to the promotees and direct recruits the proportion fixed under the Recruitment Rules and thereafter to prepare a fresh Gradation List.

The learned single Judge allowed the writ petition and quashed the impugned Gradation List. He also issued a mandamus giving elaborate direction as to how the Final Gradation List of Assistants, should be prepared by the State Government. Feeling aggrieved by the order of the learned single Judge, the State of Karnataka has preferred this appeal.

Before dealing with the rival contentions urged by the parties, it is necessary to set out the history of recruitment of Assistants in the Karnataka Government Secretariat.

Under the proviso to Art. 309 of the Constitution, the Governor of Karnataka framed Rules called the Karnataka Secretariat Service Recruitment Rules, 1957 (hereinafter referred to as the Rules) on 18-11-1957.

Those Rules provided for recruitment to the cadre of Assistants in the State Government Secretariat, from two sources, i.e., by direct recruitment and by promotion in the ratio of 66.2/3 per cent and 33.1/3 per cent respectively. By an amendment made to those Rules with effect from 12-3-62, such ratio was altered to 50 percent from each of these two sources and the modified ratio is in force even to-day.

On Re-organisation of States, a few officials allotted to the new State of Mysore (Karnataka), could not be, fitted in any of the Departments of the State Government. Hence, they were temporarily taken to the Secretariat and had been working there for a considerable time. A few officials who did not belong to the Secretariat Service, had been working in the Secretariat for several years. Rules called the Karnataka Secretariat Service (Absorption of Transferred Government Servants) Rules, 1962 (hereinafter referred to as the Absorption Rules) were made under the proviso to Art. 309 of the Constitution, for absorption of such non-Secretariat Officials in the State Government Secretariat Service subject to the condition that their service in the cadres in which they were absorbed, should count for seniority only from 7-10-61. Those Rules provided for absorption of 29 non-Secretariat officials in the cadre of Assistants. But only 26 officials were actually absorbed as Assistants and they will hereinafter be referred to as Absorbed. Assistants.

For the first time after Reorganisation of States, a draft Gradation List (produced as Ex-A in the writ petition) of Assistants in the Secretariat, was prepared and published under the Official Memorandum dated 12-11-71. After considering objections thereto and representations filed by the affected officials, the Government prepared the Final Gradation List of Assistants as on 1-7-75, issued it under its notification dated 27-3-76 and published it in the Official Gazette on 15.4.76.

Feeling aggrieved by the ranks assigned to them in the Final Gradation List, the petitioners challenged it in the petition out of which this appeal has arisen. Respondents 2 to 109 who were Assistants in the Secretariat and had been placed above the petitioners in that List, remained ex parte in the writ petition.

The State Government, respondent-1 in the writ petition, filed its statement of objections wherein it pleaded inter alia, thus: The basis for fixing the seniority of Assistants, was the date of appointment in the cases of direct recruits and the date of eligibility for promotion in the cases of promotees. For purpose of applying the quotas for direct recruits and promotees, the block periods adopted were as follows:

(i) From the date of commencement of the recruitment Rules up to the date on which the first batch of direct recruits were appointed (18-11-1957 to 11-3-62).

(ii) From the date of appointment of first batch of direct recruits to the date of appointment of the next batch of direct recruits (12-3-62 to 14-4-66).

In the writ petition, the petitioners filed a memo containing, inter alia, a tabular statement setting out the number of vacancies in the cadre of Assistants, the number of persons promoted to that cadre and the number of persons directly recruited to that cadre and the alleged excess of promotion to that cadre during different periods. Period Ratio Per Dr No. of Vacancies Promotions made Direct recruits Excess of Promotees

I. 1-11-1956 to 17-11-1957 - 2 2 - -

II. 18-11-1957 to 11-3-1962 1:2 178 90 88 33

III. 12-3-1962 to 14-4-1966 1:1 202 125 77 24

In the above tabular statement, 26 posts in which 26 non-Secretariat officials had been absorbed as Assistants, had not been counted as vacancies for allotment. The petitioners contended that 54 promotions to the cadre of Assistants had been made in excess of the quota for promotees during the period ending with 14-4-66 and that such promotees had to be pushed down below persons at Sl. Nos. 338 to 408 in the Final Gradation List.

In its statement of objections the State pleaded, inter alia, that in the above tabular statement direct recruits who left the job after a short period or remained absent after reporting for duty, had been left out, that they should be included in the total number of direct recruits and that absorbed Assistants had been rightly treated as direct recruits.

While allowing the writ petition, the learned single Judge held, inter alia, thus:

(i) The impugned Gradation List ad been prepared without any valid classification of vacancies as between the direct recruits and promotees;

(ii) The absorbed Officials could not be regarded as direct recruits.

(iii) For the purpose of applying the quota rule as between the direct recruits and the promotees, vacancies not only in permanent posts but also in temporary posts in the cadre of Assistants should be taken into account unless such vacancies were merely stop gap or fortuitous.

(iv) For the purpose of determining seniority as between direct recruits and promotees the quota for direct recruitment and promotions, should be calculated every year except in the year in which such quota rule is framed during the middle of the year or there is any amendment of the quota rule, in which event such quotas should be calculated for the part of the calendar year concerned. The quota rule would be unworkable unless the period during which it should be worked out is a definite one and such period should be a calendar year.

(v) In the impugned Gradation List, there was absolutely no legal or rational basis in adopting the block periods for the purpose of classification of vacancies as between the direct recruits and promotees.

(vi) For computing the number of direct recruitments and the number of promotions made, the State Government should adopt a uniform practice and should not adopt different methods in regard to these two categories.

If the number of persons who after being appointed by way of direct recruitment, vacated the posts shortly after their appointment or did not join duty, they should be included in the total number of direct recruits, the number of persons who after promotion vacated the posts shortly thereafter either by retirement or for any other reason, should also be included in the total number of promotions made. The method adopted by the State in its Statement by including the number of direct recruits who vacated posts shortly after joining or who did not join duty but not including the number of promotees who vacated posts, was irrational and discriminatory.

(vii) To obey the quota rule and to ensure maintenance of the prescribed proportion between direct recruits and promotees in a given cadre at all times the Government should follow the method of initial classification of clear vacancies as between direct recruitment and promotion and thereafter fill the vacancies caused by any promotee going out of that cadre, only by promotion and fill the vacancies arising on account of direct recruits going out of that cadre, only by direct recruitment.

(viii) For purposes of confirmation of officials in the cadre, priority has to be given on the basis of seniority. When clear vacancies arise both in permanent and temporary posts, persons appointed either by promotion or by direct recruitment within their respective quota, should take seniority from the respective dates of their appointment to that cadre except in cases where the date of appointment is the same for a direct recruit and a promotee, in which event, the direct recruit becomes senior to the promotee. As and when they become eligible for promotion in accordance with the Rules, confirmation should take place in the order of seniority as against clear vacancies in permanent posts either existing or arising thereafter.

The learned Advocate General and the learned Government Advocate addressed arguments on behalf of the appellant. Sri K.R.D. Karanth who appeared for the respondents in this appeal (the petitioners in the writ petition) sought to support the order of the learned single Judge. Sri H.B. Datar who appeared for the intervenors, supported the argument of Sri Karanth.

From the rival contentions urged by learned Counsel in this appeal, the following questions arise for determination:

(i) Whether the 26 absorbed Assistants should be regarded as direct recruits to the cadre of Assistants?

(ii) For applying the ratio between direct recruitment and promotion to a cadre, should the basis be the number of vacancies occurring in that cadre during a particular period or the number of appointments actually made to that cadre during that period?

(iii) For applying the ratio between direct recruitment and promotion to a cadre, should the number of promotees and the number of direct recruits who go out of the cadre whether shortly after their appointment to that cadre or after considerable time or who do not join duty after issue of orders of direct recruitment or promotion, be included or excluded?

(iv) For working out the quota rule between direct recruitment and promotion, should a calendar year be the basis or is it permissible to adopt a block period which may exceed one year.

We shall now proceed to deal with the aforesaid questions. Re: Question No. 1-

The learned Advocate General invited our attention to the Circular of the Government dated 23-10-1961. The relevant portion of that Circular reads:

"The question of repatriation of non-Secretariat personnel working in the Secretariat has been reviewed by Government in the light of certain representations to the effect that the officials are willing to be absorbed in the Secretariat without any claim for seniority in the Secretariat. Government have accordnigly decided that the cases of such of the officials as are willing to be absorbed in the Secretariat on the conditions may be considered for absorption in the Secretariat Service provided their work in the secretariat has been satisfactory and they are considered suitable for absorption:

(a) Only officials working in the secretariat from a date prior to 18-11-57 i.e., the date on which the Mysore Secretariat Recruitment Rules came into force, will be considered for absorption.

(b) Absorption will be permissible only in cadres where direct recruitment is provided for in the recruitment Rules and against direct recruitment vacancies only."

The learned Advocate General submitted that the Absorption Rules were made to implement the above decision of the Government and that hence those 26 Absorbed Assistants should be regarded as direct recruits in view of what has been stated in clause (b) above of the Circular.

Rule 3 of the Absorption Rules reads:

"The persons mentioned in the Schedule to these rules who have been either allotted to serve in connection with the affairs of the State of Mysore under the States Reorganisation, Act, 1956 or transferred from any of the services of the State Government and who were working in the Mysore Government Secretariat from a date prior to 18th day of November, 1957 and who have exercised their option to serve in the Secretariat subject to the terms and conditions stipulated in Circular No. GAD 268 ASP 61, dated 23rd October, 1961, shall be deemed to have been appointed to the posts of Assistants, Junior Assistants, Stenographers, Typists orDalayats, as shown, in the said Schedule, in the scales of pay applicable to these category of posts in the Secretariat."

The Rules do not expressly state whether the absorption of such officials should be counted against direct recruitment or promotion to the cadre in which they are absorbed. The learned Single Judge referred to the definition of the term "Direct Recruitment" in clause (b) of Rule, 2(1) of the Karnataka State Civil Services (General Recruitment) Rule, 1957, (hereinafter referred to as the General Recruitment Rules 1957). According to that definition, Direct Recruitment means appointment otherwise than by promotion or transfer from any Government service and shall include the re-employment of a retired Government Servant. The learned single Judge observed that as those Absorbed Assistants were already in Government service before they were absorbed their services should be regarded as being transferred to the Secretariat Service as Assistants, and hence they could not be regarded as direct recruits.

However, the learned Advocate General contended that those Absorbed Assistants could not be regarded as having been transferred to the Secretariat service because under Rule 16 of the General Recruitment Rules, appointment by transfer could be only of an official who was holding a post of an equivalent grade in any other service of the State, that these Absorbed Assistants were in lower grades than that of Assistants in the Secretariat and that hence their absorption should be regarded as direct recruitment.

It is true that under Rule 16 of the General Recruitment Rules 1957, an appointment by transfer, should be of an official who is in an equivalent grade. But the provisions of the General Recruitment Rules shall apply to all State Civil Services except to the extent otherwise expressly provided by or under any other law. The Absorption Rules could provide for transfer of officials to several posts in the Secretariat from grades which were not equivalent but were somewhat lower. Even if the Absorbed Assistants were not in an equivalent grade but in a lower grade, that would not be sufficient to hold that their absorption was not by transfer from other services of the State. The learned single Judge has rightly laid stress on the circumstance that the Absorbed Assistants were already in Government service and were not freshly appointed to Government service.

Though the aforesaid Circular of the Government dated 23-10-61 stated that absorption was permissible only in the cadres for which direct recruitment was provided in the Recruitment Rules and against direct recruitment vacancies, there is nothing in the Absorption Rules to show that the intention of the Government that-such absorption should be against direct recruitment vacancies, was carried into effect in those Rules. The provisions of the Absorption Rules cannot be interpreted in the light of the terms of the Circular of the Government dt. 23-10-1961 when there is no ambiguity in the meaning of those provisions. We cannot speculate whether the Government changed its mind to treat those Absorbed Assistants as direct recruits and did not provide in the Absorption Rules for treating them as direct recruits or whether the omission to make such provision, was inadvertent.

We do not see any good ground to dissent from the view taken by the learned single Judge that those Absorbed Assistants could not be regarded as direct recruits and that for applying the ratio between the direct recruitment and promotion, those posts of Absorbed Officials should be excluded from the strength of the cadre of Assistants.

Re: Question No. 2:

In para 8 of his order, the learned single Judge has observed thus:

"The learned Counsel for the Petitioners also pointed out another serious infirmity in the annexure filed along with the memo i.e., for purposes of classifying the vacancies as between direct recruitment and promotion, according to the memo the number of persons in whose favour orders of appointment had been issued during the concerned block period, either by way of direct recruitment or by way of promotion have only been taken into account. He submitted that the vacancies which were not filled up either by direct recruitment or by promotion during the relevant block period also should have been taken into account. Neither in the memo nor in the statement of objections, the State Government has specifically stated that during the relevant periods there were no other vacancies other than those already filled up. In the absence of such a statement, it has to be held that the classification of vacancies has been made merely on the basis of actual number of persons appointed by way of direct recruitment and promotion without taking into account the unfilled vacancies and therefore, the impugned seniority list has been prepared without valid classification of vacancies as between direct recruitment and promotion."

The learned Advocate General contended that the learned single Judge erred in holding that for the purpose of the application of the quota rule, the number of vacancies occurring in a cadre during any particular period, should be the basis for classification of posts as between direct recruits and promotees. The learned Advocate General maintained that for such purpose what is material is the number of appointments actually made to a cadre and not the number of vacancies in that cadre, because the Government is under no obligation to fill all or any of the vacancies in a cadre at any point of time or occurring during any period and that it is open to the Government to keep such vacancies unfilled.

The relevant parts of the Karnataka Secretariat Services Recruitment Rules, 1957 (hereinafter referred to as the Secretariat Recruitment Rules) read:

"(2) In respect of each category of posts specified in column 1 of the Schedule, the methods of recruitment and the minimum qualifications, and the period of probation, if any, shall be as specified in the corresponding entries of columns 2 and 3 of the said Schedule.

Schedule

Category of Posts 1 Method of recruitment 2 Minimum qualification and period of probation 3

Deputy Secretaries to Government other than Deputy Secretaries to Government in the Law Department.

(a) Fifty per cent of the vacancies to be filled by promotion of Under Secretaries of the Secretariat Service on the basis of seniority-cum-merit;(b) The rest of the vacancies to be filled by officers of the Indian Administrative Service Mysore Administrative Service, subject to the condition that not less than 4 posts are held by the former......

Under Secretaries to Government in Departments other than the Law Department.

(i) 75 per cent of the vacancies to be filled by promotion from the cadre of Superintendents who have worked as Superintendents for at least a period of five years, on the basis of seniority-cum-efficiency and (ii) 25 per cent by transfer of Class I (Junior Scale) officers from non-Secretariat Departments by deputation on tenure basis for a period of not more than three years.If, however, a, Class II officer of a Department, where Class I (Junior Scale) posts do not exist, is appointed to a post reserved for deputation, such Class II Officer during his tenure of office in any of the Secretariat Department will only draw pay in the time-scale applicable to his post in the parent Department and will in addition draw the special pay attached to the post.

Assistants (Rs. 80-5-100-8-140-10-200) 50 per cent by direct recruitment and 50 per cent by promotion from the cadre of Junior Assistants.

For direct recruitment. A pass in Intermediate, Pre-University or equivalent examination. Probation: One year.

While in regard to the cadres of Deputy Secretaries and under Secretaries, the Secretariat Recruitment Rules provide that certain percentage of vacancies in those cadres should be filled by promotion and that the rest of the vacancies should be filled by officers of certain services, in regard to the cadre of Assistants all that those Rules provide is that 50 per cent thereof shall be by direct recruitment and 50 per cent. by promotion. Those Rules do-not say anything about filling the vacancies in a particular proportion.

Hence, the learned Advocate General is right in his submission that there is no obligation on the Government to fill all or any of the vacancies in acadre existing at any particular point of time or occurring during any particular period and that the quota rule has to be applied with reference to the actual number of appointments made to a cadre during any particular period and not with reference to the number of vacancies in that cadre occurring during that period. However, this does not detract from the validity of the observation of the learned single Judge that there should be no undue delay in filling the vacancies in the cadre from the different sources in accordance with the quota rule. Unless there are good reasons like the volume of work not justifying the filling of vacancies or economy measure, promotions and direct recruitment should be made to that cadre in accordance with the quota rule as and when vacancies occur. The delay in filling the posts and making promotions or direct recruitment in excess of the respective quotas even temporarily, should be minimised if not avoided.

Re: Question No. 3:

The learned single Judge has held in para 15 of the order:

"Once a proper classification and recruitment is made, vacancies arising thereafter out of a direct recruit appointed vacating the post should be made available only for a direct recruit and the vacancy arising out of the vacating of the post by a promotee should be made available for a promotee only and it should not be taken up for reclassification."

The correctness of the above proposition was questioned by the appellant. It was contended for the State that all vacancies arising, whether on account of direct recruits going out of the cadre of Assistants or on account of promotees going out of that cadre, by death, retirement resignation, further promotion etc., should be filled by applying the quota rule. In other words, it was contended that a vacancy arising out of a direct recruit going out of the cadre need not necessarily be filled by a direct recruit and likewise a vacancy arising out of a promotee going out of the cadre need not necessarily be filled by a promotee; and that all vacancies in whatever manner they arise, whether on account of direct recruits or promotees going out of the cadre, should be filled by direct recruitment and promotion in the ratio prescribed by the Recruitment Rules.

The following illustration will bring out the rival points of view. If in a year 16 direct recruits and 3 promotees go out of the cadre of Assistants by retirement, promotion to higher cadre, resignation dismissal or removal, how should those 24 vacancies in the cadre of Assistants be filled. According to the view expressed by the learned single Judge, 16 vacancies should be filled by direct recruitment and 8 vacancies by promotion because the proportion between direct recruits and promotees has to be maintained in the cadre. According to the contention of the State, 12 vacancies should be filled by direct recruitment and 12 vacancies. by promotion because the Recruitment Rules provide for the ratio of 50:50 between these two sources of recruitment.

Which of the above two methods should be followed in filling vacancies, depends upon the rules governing a cadre. Such rules may provide that a cadre should always consist of direct recruits and promotees in a particular ratio. An example of such kind of Rules, is found in the Karnataka District Judges Recruitment Rules. Sub-rule (1) of Rule 2 of those Rules reads:

"2. Methods of appointment.-(1) Appointment to the cadre of District Judges shall be made:

(a) by promotion of persons in the Karnataka Judicial Service in the cadre immediately below the cadre of District Judges; and (b) by direct recruitment from the Bar:

Provided that as nearly as may be 33 1/3 per cent of the number of posts in the cadre of District Judge shall be filled or reserved to be filled by direct recruitment." (underlining italics is ours)

Alternatively, the rules governing a cadre may provide that while making recruitment to that cadre, certain ratio should be maintained between direct recruitment and promotion. Where the rules so provide, such ratio between direct recruitment and promotion should be followed in making appointments to fill vacancies in that cadre irrespective of how those vacancies arose-whether on account of direct recruits going out of the cadre or on accounts of promotees going out of the cadre.

The relevant part of the Secretariat Recruitment Rules reads:

Category of posts: Assistants

Method of recruitment: 50 per cent by direct recruitment and 50 percent by promotion from the cadre of Assistants.

Minimum qualification and period of probation: ........

Unlike the Karnataka District Judges Recruitment Rules, the Secretariat Recruitment Rules do not provide that as nearly as may be 50 per cent of the number of posts in the cadre of Assistants should be filled or reserved to be filled by direct recruitment. All that the Secretariat Recruitment Rules provide is that while making recruitment to fill the vacancies in the cadre of Assistants, 50 per cent of appointments should be by, direct recruitment and 50 per cent, by promotion. These Rules do not provide that the vacancies arising out of direct recruits going out of the cadre of Assistants, should be filled by direct recruits only and that the vacancies arising out of promotees going out of that cadre, should be filled by promotees only so as to ensure that the cadre of Assistants always consists of direct recruits and promotees in the ratio of 50:50.

Thus, we are unable to agree with the finding of the learned single Judge that a vacancy arising on account of a direct recruit going out of the cadre of Assistants, should be filled by appointing a direct recruit only and a vacancy arising on account of a promotee going out of that cadre should be filled only by promotion. We accept the contention of the learned Advocate General and hold that all vacancies in the cadre of Assistants, should be filled by making direct recruitment and promotion in the ratio prescribed by the Recruitment Rules and that it is immaterial whether such vacancies arose on account of direct recruits or promotees going out of the cadre.

We shall now deal with two incidental questions. If a direct recruit shortly after joining duty, leaves the post, how should that vacancy be filled? The learned single Judge has taken the view that another direct recruit should be appointed in his place. This is consistent with his view that a vacancy caused by a direct recruit going out of the cadre, should be filled only by a direct recruit. From what we have held above, it follows that even a vacancy caused by a direct recruit leaving the post shortly after joining it, should be treated in the same way as a vacancy occurring in any other manner and should be filled by applying the quota rule i.e., 50 per cent of the vacancies should be filled by direct recruitment and 50 per cent, by promotion. The same would be the legal position if a promotee leaves the cadre shortly after promotion.

The position is different if a person to whom is issued an order of appointment by direct recruitment to a post, does not join that post at all. In that case, the appointment to that post is not complete and another person has to be appointed by direct recruitment to that post if it is intended to fill that post. The position would be the same if an official to whom is issued an order of promotion to the higher post, does not join that post. In such a case the promotion is not complete and another person has to be promoted to that post if it is intended to fill that post.

Re: Question No. 4:

As seen earlier, for applying the quota rule as between direct recruitment and promotion, the State Government took 2 block periods, i.e., from 18-11-57 to 11-3-62 and from 12-3-62 to 14-4-66.

The learned single Judge observed:

"The contention of the petitioners that every year should have been taken as the basis for fixation of quota as between direct recruitment and promotion has to be upheld in the light of the principles set out earlier based on Rule 17 of the General Recruitment Rules and Rule 10 of the Seniority Rules and the decision of this Court in V.B. Badami v. State of Mysore, (1975) 1 Kar.L.J. 356."

The learned Advocate General contested the correctness of the conclusion of the learned single Judge that each year should have been taken as the basis for applying the quota rule i.e., the ratio between the direct recruitments and promotions. The learned Advocate General maintained whether the quota rule, i.e., the ratio between direct recruitment and promotion, was worked out on annual basis or during block periods as was done by the State Government, there would be no difference in the relative ranks assigned to promotees and direct recruits in the Gradation list of Assistants.

We shall now examine the contention of the learned Advocate General.

In Badami''s case, (1975) 1 Kar.L.J. 356, the Division Bench of this Court observed thus at page 365:

"What is the reasonable period to be taken into account for the purposes of determining whether the promotions are within the quota or in excess of the quota or, in other words, what is the period the permanent vacancies arising in which furnish the basis for calculating the number to be filled by promotion and the number to be filled by direct recruitment. The guidance in this regard must be sought in the rules. If the rules provide such guidance, then the period must be determined on the basis thereof; otherwise, the period of one year mentioned in Cls. (b) and (c) of Rule 17 of the General Recruitment Rules should, in our opinion, be regarded as a reasonable period.

The rules with which we are concerned in these cases however, do contain a guidance and an indication for selecting a, slightly different period, as regards the period with which we are concerned.............."

Thus, in Badami''s case, though their Lordships observed that clauses (b) and (c) of Rule 17 of the General Recruitment Rules, 1957 provided a guidance as to the period for working out the quota rule i.e., the ratio between direct recruitment and promotion, as a matter of fact, the Karnataka Administrative Service (Recruitment) Rules, 1957 themselves contained such guidance. Thus, their Lordships did not, as a matter of fact, depend upon clauses (b) and (c) of Rule 17 of the General Recruitment Rules for reaching the conclusion that a year would be the reasonable period for working out the quota rule.

Rule 17 of the General Recruit-Rules, 1957 as it stood prior to its amendment by the Notification of the State Government dated 2-1-65, read as follows:

"17. Appointment by direct recruitment or by promotion in certain cases:-

Notwithstanding anything contained in these rules or in the rules of recruitment specially made in respect of any service or post, the appointing authority may-

(a) recruit by direct recruitment to a post reserved to be filled by promotion when it is satisfied that the person eligible to be considered for appointment by promotion is not fit to be so appointed, or (b) fill up by promotion any vacancy relating to a post which is required to be filled by direct recruitment when such vacancy is not likely to last for more than one year;

By the Notification of the State Government dated 2-1-65, Clause (c) was added to Rule 17 and that clause read:

"(c) fill up by promotion temporarily on the basis of seniority-cum-merit any vacancy relating to a post which is required to be filled by direct recruitment where selection to the post has not been finally made and there islikelihood of undue delay in making direct recruitment to the post or where the candidate selected for the post as per recruitment rules has not yet joined duty. Such promotion shall be made only after a requisition has been sent to the Commission or to the appropriate Recruitment Committee for selection of a suitable candidate. A candidate temporarily promoted tinder this sub-rule shall not have any preferential claim for regular promotion and also shall not count the period of service in the promoted post for seniority; he shall revert to his original post the expiry of one year or on the appointment of a direct recruit selected in accordance with the rules of recruitment applicable to the post whichever is earlier."

Rule 17 of the General Recruitment Rules, 1977 is substantially the same as Rule 17 of the General Recruitment Rules, 1957 as amended in 1966. All that clause (b) of Rule 17 of the General Recruitment Rules, 1957 provided was that a vacancy which was required to be filled by direct recruitment might be filled by promotion when such vacancy was not likely to last for more than one year. In our opinion, that clause by itself did not give any indication as to what would be a reasonable period for the application of the quota rule, i.e., the ratio as between direct recruitment and promotion. We are in agreement with the view taken by the learned single Judge that clause (c) of Rule 17 gave an indication that one year would be a reasonable period for the application of the ratio between direct recruitment and promotion. But, as seen earlier, clause (c) was inserted by the Notification of the State Government dated 2-1-65 and published in the Karnataka Gazette dated 28-1-65 and was not in force prior to 28-1-1965. Hence, that clause could not furnish any basis as to the period during which the quota rule, i.e., the proportion between direct recruitment and promotion, should be applied prior to 28-1-65.

Sub-rule (1) of Rule 10 of the Seniority Rules reads:

"10(1) There shall be prepared every year for each cadre of service or class of posts a seniority list consisting of the names of all officers borne on the said cadre or class of posts arranged in order of seniority in accordance with the provisions of these rules."

That Rule was inserted in the Senority Rules by the Notification of the State Government dated 17-4-71 and published in the Karnataka Gazette dated 18-6-71. Hence, that Rule also cannot furnish any indication as to what would be the reasonable period for working out the quota rule, i.e., the ratio between direct recruitment and promotion prior to 18-6-71.

In N.K. Chauhan v. State of Gujarat, AIR 1977 SC 251. Krishna Iyer, J. who spoke for the Bench, observed thus at pages 264 and 265:

"While laying down a quota when filling up vacancies in a cadre from more than one source, it is open to Government, subject to tests under Article 16, to choose a year or other period or the vacancy by vacancy basis to work out the quota among the sources. But once the Court is satisfied, examining for constitutionality the method proposed, that there is no invalidity, administrative technology may have free play in choosing one or other of the familiar processes of implementing the quota rule. We, as Judges, cannot strike down the particular scheme because it is unpalatable to forensic taste." (underlining italics is ours)

From the aforesaid observations of the Superme Court, it is clear that in the absence of any rule, the Government had discretion to adopt a year or any other reasonable period for working out the quota rule, i.e., the ratio between direct recruitments and promotions. We agree with the learned single Judge that after insertion of clause (c) in Rule 17 of the General Recruitment Rules, 1957 and the insertion of Rule 10 in the Seniority Rules, a year should be taken as the reasonable period for working out the quota rule, i.e., the ratio between direct recruitment and promotion. But, we are unable to agree with the view of the learned single Judge that prior to the insertion of clause (c) in Rule 17 of the General Recruitment Rules, 1957 and Rule 10 in the Seniority Rules, the State Government was under an obligation to adopt a year as the period for working out the quota rule, i.e., the ratio between the direct recruitment and promotion.

In our opinion, the direction of the learned single Judge to the State Government to work out the quota rule on an annual basis, should be modified so as to limit its application to the period subsequent to 25-7-62. Upto that date, the adoption of the two block periods by the State Government, cannot be held to be bad.

As we have disagreed with the findings of the learned single Judge on questions Nos. (ii) and (iii) above, and partly with his finding on question No. (iv) above, we allow this appeal partly. While we uphold his quashing of the Gradation List of Assistants impugned in the writ petition, we modify the directions contained in sub-para (3) of para-16 of his order. In substitution of those directions, we give the following directions for preparing a fresh Gradation List of Assistants.

(a) The number of appointments made to the cadre of Assistants during the block period 18-11-57 to 11-3-1962, excluding the number of Absorbed Assistants, shall be classified as direct recruitment posts and promotional posts in the ratio of 2:1 (i.e., 66 2/3 per cent and 33 1/3 per cent);

(b) Persons appointed either by way of direct recruitment or by promotion to the posts of Assistants, within their respective quotas, during the abovesaid period, shall be given seniority from the respective dates of their appointments;

(c) Persons appointed either by way of direct recruitment or by promotion, in excess of the respective quotas therefor, during the aforesaid period, shall be adjusted against such quota during the next block period;

(d) The number of appointments made to the cadre of Assistants during the period 12-3-1962 to 25-7-1962, shall be classified as direct recruitment posts and promotional posts in the ratio of 1: 1 (50% and 50%). The excess number of persons appointed by way of direct recruitment or by promotion during the block period 18-11-1957 to 11-3-1962, shall be adjusted against the quota for direct recruitment or the quota for promotion, as the case may be, during the period 12-3-1962 to 25-7-1962. After such adjustment, persons appointed either by way of direct recruitment or by promotion within their respective quotas dur- ing the period 12-3-1962 to 25-7-1962, shall be given seniority from the respective dates of their appointments;

(e) The process in clauses (b) to (d) above shall be repeated, mutatis mutandis, during the period 26-7-1962 to 31-12-1962 and thereafter in each succeeding calendar year; and (f) The Final Gradation List of Assistants shall be published within 6 months from this date.

In this appeal parties are directed to bear their own costs.