Tapan Kumar Dutta and Others vs Election Commission of India and Others

A.K. Sikri, J.—The perennial problem of seniority between the direct recruits and the promotees is the issue which has arisen in this petition as well. The genesis of this dispute is, in somewhat, peculiar circumstances. All the employees were at the relevant time holding the posts of Assistants. The petitioners belong to the category of promotees who got promotion from the rank of UDC to that of Assistant. Respondents No. 7 to 27 are appointed to the said posts as direct recruits. Recruitments/promotions for such post in Government of India including Election Commission of India is normally done by Union Public Service Commission (UPSC) or Staff Selection Commission (SSC). However, for some reasons, as would be noted hereafter at relevant stage, the Election Commission of India (hereinafter referred to as the ''the Commission'') decided to make appointment to various posts without referring the matter to the SSC. The petitioners are those persons who are promoted as Assistants by the Commission on ad-hoc basis. While making these promotions the requirement of Rules were also relaxed. Thereafter decision was also taken on 20.1.1996 to regularize their services w.e.f. dates of initial promotions. The dispute now revolves around the seniority which is to be given to them.

On 10.12.2001, a draft seniority list was circulated by the Commission applying quota rota system. With this methodology the petitioners (hereinafter referred to as the promotees) were placed senior to the respondents No. 7 to 27 (hereinafter referred to as the Direct Recruits). The Direct Recruits filed objections to the said draft seniority list which were turned down and final seniority list was issued vide memorandum dated 1.5.2002.

Challenging the aforesaid senior list, the Direct Recruits filed OA No. 1405/2002 claiming seniority over the promotees on the premise that the promotees could not have given benefit of ad hoc service rendered by them for the purpose of seniority. It was their contention that seniority assigned to promotees in violation of OM dated 30.7.1986 issued by Department of Personnel and Training (DOPT) was violative of Articles 14 and 16 of the Constitution. It was pleaded that the Commission could not make promotion in excess of posts earmarked for promotees in any particulars years. The promotion given on 1.5.2002 were illegal and violative of recruitment rules which were made in excess of the quota. In this OA therefore prayer was made to the effect that order dated 10.12.2001 vide which the seniority list was circulated as well as order dated 1.5.2002 turning down the representation of the Direct Recruits, be quashed with a direction to the Election Commission to frame seniority list of Direct Recruits and promotees Assistants, as per the Rules.

The promotees also filed two OAs i.e. OA No. 1507/2002 and OA No. 1259/2002. In these OAs even promotees had impugned Memo dated 10.12.2001 as well as orders dated 1.5.2002 and the seniority assigned to them. Their contention was that the impugned order relegating their seniority on regularisation which has vested them with a right is bad in law for want of an opportunity in consonance with the principles of natural justice and fair play. They therefore wanted their seniority from date of initial appointment.

The Tribunal vide its judgment dated 22.9.2003 decided all the three OAs together. It dismissed the OAs filed by the promotees and allowed OA of the direct recruits. The effect of the judgment is let direct recruits be placed senior to and above the promotees. It is because of this reason that these petitioners (promotees) being not satisfied with the impugned judgment have filed the present writ petition seeking judicial review of the impugned judgment dated 22.9.2003 of the Tribunal.

In order to appreciate the controversy, we shall have to look into the circumstances under which the petitioners (i.e. promotees) were appointed/promoted as Assistants and the nature of their promotion vis-a-vis the direct recruits along with their dates of appointments. This proceeds as follows:

For appointment to the post of Assistants in the Commission, Recruitment Rules have been framed by the President of India exercising powers under proviso to Article 309 of the Constitution. As per the Rules it is a selection post, 50% posts are to be filled by promotion failing which by transfer on deputation and 50% quota is meant for direct recruitment through Assistants Grade Examination conducted by the UPSC. Rules also provide that consultation with the UPSC is necessary while making direct recruitment. The same is clear from Columns 5,7,11,14 of the Recruitment Rules. Rule 5 contains power to relax and reads as under:

Power to relax- where the Central Government is of the opinion that it is necessary or expedient so to do it may, by order, for reasons to be recorded in writing, relax any of the provisions of these rules with respect to any class or category of persons:

Provided that in relation to any post, the recruitment to which is to be made by the Union Public Service Commission, no such order shall be made except after consultation with the said Commission.

It is the case of the petitioners (promotees) that though 50% posts are to be filled by direct recruitment through UPSC, in view of certain problems faced by the Commission on account of delay in recruitment by the selection agencies, a decision was taken to make appointments without the involvement of the UPSC. Simultaneously, a decision was also taken to relax the qualification requirement. This decision is contained in the minutes of the Selection Committee establishing the relaxation in promotion which according to the petitioners was validly exercised with intimation to the Government of India and DOPT, Ministry of Law. The Government of India did not raise any objection in the matter and thus it was presumed that Government had agreed to relaxation. The petitioners who were already working in the Commission at a lower posts were accordingly given the ad hoc promotion which was subsequently regularized.

It is not in dispute that earlier to 1990 for making direct recruitment, the Commission had been requisitioning/reporting vacancies to SCC and on its recommendations the Commission was appointing the candidates against 50% of the vacancies meant for direct recruitment. However, from 1991 onwards no vacancies for direct recruitment were reported to SSC and no appointments were made till 1995. Seven of the private respondents who appeared in the AGE Examination 1995 were appointed as direct recruit Assistants by the Commission. Likewise in 1996 and 1997 further appointments of seven more private respondents each were made. As the Commission had not reported vacancies to SSC, it has faced shortage of Assistants. The Commission accordingly promoted these petitioners, who were working as UDCs, to the post of Assistants on ad hoc basis from 1990 onwards. Besides making ad hoc promotion, vacancies earmarked for direct recruitment could not be filled. Vide order dated 19.5.1995 two persons, who were promoted on ad hoc basis in 1990 and 1992 respectively, were given regular promotion. By another order dated 26.5.1995 certain other petitioners who were earlier given promotion but on ad hoc basis during the years 1990-93 were given regular promotion w.e.f. 1995. Likewise vide order dated 2.9.1996 petitioners were regularly promoted. This has been done by giving relaxation to the eligibility criteria of five years'' service in the feeder cadre as per the Recruitment Rules, as these petitioners had not completed five years'' service in the feeder cadre, i.e., UDC. Moreover, for doing so 20 posts meant for Direct Recruits were diverted to promotee quotas as there were no vacancies in their own quota.

The aforesaid factual matrix would reveal that the petitioners were promoted on ad hoc basis and, thereafter, given regular promotion w.e.f. 19.5.1995,26.5.1995 and 2.9.1996 respectively. As against this, seven respondents of AGE Examination 1995 were given appointments as Assistants by way of direct recruit in the year 1997. Other respondents who qualified AGE Examination 1996 and AGE Examination 1997 were appointed subsequent thereto.

First seven respondents, who were appointee of 1997, on the basis of AGE 1995 made representation against the regular promotions given to the petitioners stating that illegality had been committed in the grant of relaxation to the promotees as they did not qualify the eligibility criteria of five years'' regular service in the feeder cadre. On this representation a review DPC was convened which de-regularized them and accorded regular promotion after completion of five years of regular service vide order dated 10.12.2001. Even after giving regular promotion to the petitioners on the completion of five years'' service, they were senior to the respondents. A draft seniority list was issued on 10.12.2001 on that basis showing those promotees as senior to these petitioners. They represented against this draft seniority list which was turned down vide memorandum dated 1.5.2002 and final seniority list was also issued on the same date showing the petitioners (i.e. promotees) as senior. As aforesaid, this action of the Commission was challenged by the Direct Recruits in the OA 1405/2002 filed by them. On the other hand Promotee Assistants had also filed two OAs u/s 19 of the Administrative Tribunal Act, 1985. These promotees in one application had sought seniority on the basis of initial appointment as they were not satisfied with the regular promotion given to them from subsequent dates. In the second application filed by the promotees challenge was made to review of their regularization on the ground that it was done without a show cause notice issued to them.

THE IMPUGNED JUDGMENT

In its detailed judgment, the Tribunal took note of the contentions of counsel for the promotees as well as direct recruits. It also took note of the Central Government which contended that the legislative department is the administrative department in respect of the Commission. It is further stated that in the year 1992, the Commission requested the respondents therein to obtain the approval of government to fill up certain posts in the Commission without consultation with UPSC and DOPT. However, the exemption was not accorded. The Central Government also took the stand that the relaxation in the rules could not have been made by the Commission itself and as DOPT and UPSC did not agree to the proposal of the Commission for exempting the posts from their purview as such the Commission had no power of relaxation. The Tribunal also took note of certain undisputed and admitted facts which were as follows:

Recruitment rules for the Assistants provide recruitment to the said post through promotion failing which by transfer on deputation to the extent of 50% and remaining 50% by direct recruitment. Earlier through AGE conducted by UPSC (and now by SCC) for promotion the feeder cadre is UDC with five years'' regular service in the grade. Power to relax as per para 5 of the Rules is with the Central Government and such a power could be exercised if it was necessary or expedient to do so for which reasons were to be recorded in writing and before doing so consultation with UPSC was mandatory. However, legislative department in their reply had clearly stated that proposal of the Commission to grant administrative autonomy and to exempt the posts from the purview of UPSC/SCC had not been acceded to and the Commission was informed about it on 20.1.1993. In so far as relaxation is concerned, the Commission could not do itself as it had no such power. Further, till 1991 rota quota in the grade of assistant was being operated in accordance with the recruitment rules. However, no direct recruitment had taken place from 1993-1996. Due to non-availability of the quota for the direct recruits 20 long term vacancies meant for direct recruit quota occurred from 1991 to 1995. The ECI passed an order in May, 1995 in extraordinary circumstances as one time measure to hold a DPC by diverting the quota of direct recruits towards promotion. For doing so, no approval of the government was sought and the ECI started filling up the vacancies meant for direct recruits from amongst the UDCs/promotees. Accordingly, the direct recruit assistants were appointed from 1997 till 1999. On the other hand, by orders dated 26.5.1995, 1.1.1996, 2.1.1996, 21.11.1998 and 21.12.1998 promotees were regularized. However, vide orders dated 12.10.2001 these orders were superseded and the seniority and regularisation of promotees was done from the date of their eligibility as per recruitment rules i.e. after completing five years of service. In so far as direct recruits are concerned, seniority had been prepared on year-wise select list as direct recruitment through SSC was discontinued and requisition was sent on the basis of the results of AGE, 1996. In so far as carried forward vacancies earmarked for direct recruits upto 1997 is concerned, same had been diverted from direct recruits to promotees and therefore there was no carried forward vacancies. As quota between direct recruits and promotees was not operated according the recruitment rules the relative seniority was examined in the light of DOPT guidelines and the courts adopted was least disturbing in extraordinary circumstances.

On the basis of rival contentions of the parties, the Tribunal highlighted the following issues which fell for considerations and the answers given to these issues are also indicated against these issues:

In the light of the aforesaid answers given by the Tribunal to the aforesaid issues, OA of the direct recruits was allowed partly. Their prayer for quashing of promotion orders of promotees was rejected. However, it was held that seniority list circulated on 1.5.2002 was not in accordance with the rules and therefore it was set aside.

Both the OAs of the promotees were dismissed. The official/respondents were directed to revise the seniority having regard to the observations made in the judgment.

Learned counsel appearing for the petitioners (i.e. promotees) submitted that the Commission had to resort to relaxation of the rules and promotion of the promotees on ad hoc basis under compelling circumstances as explained by the Commission itself in its counter affidavit. It was submitted that there was urgent need to man these posts for smooth conduct of elections. It was further submitted that in view of the office order dated 8.6.1992, issued by the Election Commission of India, no instructions of the government were to be followed. Learned counsel further submitted that there was specific power to relax and the same was exercised for valid reasons as recorded by the Election Commission of India in its note dated 13.5.1995 duly approved by the competent authorities. Learned counsel also referred to the judgment of the Supreme Court in the case of A. Janardhana Vs. Union of India (UOI) and Others, and Narender Chadha and Others Vs. Union of India and Others, On the strength of these judgments, it was argued that even if when the petitioners were promoted on ad hoc basis, since they worked for number of years, they should have been given the benefit of such service for the purpose of reckoning their seniority. We find ourselves unable to persuade by these submissions of the petitioners and are of the opinion that judgment of the Tribunal is proper and valid. Two things which clearly bear out and clinch the entire issue cannot glossed over as admitted by the petitioners. These are:

a. Rule 5 of the relevant Rules which deals with relaxation of the Rules gives such power only to the Central Government and not to the Commission.

As already pointed out above, though the power lies only with the Central Government, in the present case Commission exercised such a power which had no jurisdiction to do so. The argument of the learned counsel for the petitioners of administrative exigency or Election Commission of India being autonomous body would not cut any ice in view of the aforesaid rule which is statutory in nature. It is established principle that when law mandates exercise of power in a particular manner, it has to be done in that manner or not at all. The Commission in these circumstances could not have usurped the power which lies with the Central Government. For that it was necessary to first have the amendment in the rules. On the contrary, request of the Commission to the Central Government was specifically turned down as noted above.

b. There were no posts of Assistant available in the promotion quota. The posts meant for direct recruits were diverted to facilitate the promotions of petitioners herein which was again not permissible. Though recruitment rules provide for direct recruitment through UPSC/SCC, from 1991 onwards no nomination had been called from SSC on the basis of AGE.

Though direct recruits were available, the Commission without any relaxation duly accorded by the Central Government under the relevant rules and without any authorisation suo moto exempted itself from the purview of UPSC/SSC and passed orders dated 9.6.1992 in this behalf. It could not take advantage of its self serving office order and act against the statutory rules. This was done despite the fact that such a proposal for autonomous had been turned down by the legislative department. The Tribunal was thus right in holding that an artificial breakage of quota would not be construed as breakage of the quota.

In the case of Suraj Parkash Gupta and Others Vs. State of Jammu & Kashmir Others, the Supreme Court made following pertinent observations, while dealing with Rule 5(4) of the Recruitment Rules, 1978 pertaining to Junior Engineers of Jammu and Kashmir cadre:

On the question of breakdown of quota rule, except the lethargy of the State Government and its inaction and its not asking the Service Commission to make direct recruitment, no other cause is visible. The Cabinet note only stated that because the reference to PSC would take a long time, the ad hoc services of the promotees were to be regularised. The delay on the part of the Government appears to us to be motivated for the purpose of blocking the quota of the direct recruits and giving a part of it to the promotees. We have noticed that when a very belated decision was taken to make direct recruitment, the same was restricted to 10% rather than to the statutory quota of 20%. This attitude on the part of the State was not reasonable.

Further under Rule 5(4) of the Recruitment Rules, 1978 it is provided that in case suitable candidates are not available for promotion, the posts shall be filled up by direct recruitment and vice versa. Thus, there must be evidence that suitable candidates were ''not available'' for direct recruitment. Such non-availability cannot be inferred when, as a fact, not even a reference is made to the Commission to find out if upon advertisement, anybody will respond. Thus there is no breaking down of the quota rule.

That in such situations there can be no breakdown of the quota rule is clear from the decided cases. In N.K. Chauhan vs. State of Gujarat the rule said that ''as far as practicable'', the quota must be followed. Krishna Iyer, J. said that there must be evidence to show that effort was made to fill up the direct recruitment quota. It must be positively proved that it was not feasible, nor practicable to get direct recruits. The reason should not be ''procrastinatory''. In Syed Khalid Rizvi vs. Union of India it was held that mere non-preparation of select list does not amount to collapse of the quota rule. In M.S.I. Patil vs. State of Maharashtra it was held that mere omission to prepare lists did not amount to breakdown of quota rule.

One other significant fact is that the cabinet note dated 19.12.1997 only states that cases of the ad hoc promotees if referred to PSC, will take a long time for getting the necessary recommendation. But nowhere is it said that direct recruitment was not possible or that direct recruits were not available or such recruitment had become impracticable. For the aforesaid reasons we hold that the quota rule has not broken down.

In the same judgment, the Supreme Court also held that relaxation given against the rules would be of no consequence. Following observations in this behalf need to be extracted:

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 and others etc. Vs. Union of India and others, the Rule permitted relaxation of the conditions of service 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 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.

(emphasis supplied)

Similarly, in State of Orissa vs. 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 ad hoc service of a direct recruit could not be treated as regular service. Similarly, in M.A. Hague (Dr) vs. 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 Public Service Commission vs. Dr. Narinder Mohan it was held that the provisions of the J&K Medical Recruitment Rules could not be permitted, (See also Arundhati Ajit Pargaonkar (Dr) vs. State of Maharastra). In Surinder Singh Jamwal (Dr) vs. State of J&K this Court directed the direct recruits to go before the Public Service Commission. Decisions cited for promotees distinguishable.

Two decisions which have been referred to by counsel for the promotees have to be referred to but these can be distinguished. In vs. Sreenivasa Rao vs. Govt of A.P. There was an order of relaxation in favour of the promotees who were not regularised under Rule-23 of the A.P. State and Subordinate Service Rules. In that case, this Court felt that the Government''s order relaxing the requirement of consultation with the Commission need not be interfered with because the promotees were placed by the Government below direct recruits. This case is therefore clearly distinguishable. (We shall be referring to this case against under Point 3.) Again in Ashok Kumar Uppal vs. State of J&K while holding that the power of relaxation could not be arbitrarily exercised, this court upheld the relaxation of the relevant standard prescribed for typing, in respect of five direct recruits. This was because the State Recruitment Board in that case had made a recommendation for relaxation of the requisite standard in their favour and this was accepted by the Government. The relaxation was upheld because the Government had retrospectively amended the promotion rules so that the promotees could just go into the promotion quota by sheer seniority rather than selection as was the rule earlier. The five direct recruits were very close to the other selected direct recruits and were more meritorious than the promotees.

In fact if one has regard to the aforesaid legal position even the ad hoc promotions of the petitioners herein were against the statutory rules inasmuch as at that time neither these petitioners had completed requisite five years of service as UDCs nor any posts in promotion quota were available. However, since these petitioners had worked continuously for long time, keeping in view this fact, the Tribunal did not rightly set aside the promotions order. But at the same time it was justified in holding that they cannot get advantage of such promotions contrary to rules in so far as their seniority is concerned. The Tribunal, therefore, struck an equitable balance by directing that those promotees occupying direct recruits posts had to be pushed down and later adjusted within their quota after due regularisation and service rendered by them outside the promotee quota would not be counted for seniority. For this sustenance was taken from the judgment of the Supreme Court in Suraj Parkash Gupta case (supra) wherein the Apex Court opined:

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 been 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.

Point 4

Direct recruits cannot claim appointment from date of vacancy in quota before their selection.

We are, therefore, of the opinion that the impugned judgment of the Tribunal does not require any interference. Accordingly, this writ petition is dismissed.