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CASE NO.: Appeal (civil)  1384 of 2008

PETITIONER: AFHQ/ISOs SOs (DP) Association & Ors

RESPONDENT: Union of India & Ors

DATE OF JUDGMENT: 19/02/2008

BENCH: H. K. Sema & Altamas Kabir & Lokeshwar Singh Panta

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.    1384 OF 2008 [Arising out of S. L. P. (C) No.4545 of 2007] WITH CIVIL APPEAL NO.   1385  OF 2008 [Arising out of S. L. P. (C) No.5853 of 2007] AFHQ Officers’ Association & Ors.                ....  Appellants Versus Union of India & Ors.                              .....    Respondents

Lokeshwar Singh Panta, J.

1.      Leave granted. 2.      The usual question as regards determination of inter se  seniority between Direct Recruits (DRs) and Departmental  Promotees (DPs) once again falls for consideration in these two  appeals by special leave, therefore, for the sake of  convenience, they are being heard and decided by this  common judgment.   3.      These appeals are directed against the judgment and  order of the High Court of Delhi dated 14th November, 2006 in  C.W.P. No. 4058/2002; C.W.P. No. 4458/2002; C.W.P. No.  5396/2002 and C.W.P. No. 62/2003 and order dated 15th  January, 2007 in C.W.P. No. 18073/2005, whereby and  whereunder the order dated 1st April, 2002 in O.A. No.  1356/1997 (Smt.Ammini Rajan & Ors. v. Union of India & Ors.)  of the Central Administrative Tribunal, Principal Bench, New  Delhi, is set aside. 4.      The Central Administrative Tribunal (hereinafter referred  to as "the Tribunal") allowed the said O.A. filed by Smt.  Ammini Rajan & Ors. challenging the Select List of Assistants  for promotion to the grade of Assistant Civilian Staff Officers  (hereinafter referred to as "ACSOs") and Armed Forces  Headquarters(AFHQ) Civil Services for the years 1977, 1978  and 1979 which was circulated vide letter dated 2nd July,  1996; the Select List for the year 1980 which was circulated  vide another letter dated 20.09.1996; the Select List for the  year 1981 circulated vide letter dated 20.11.1996 and also the  Select List of 1982 circulated vide letter dated 14.03.1997.   The applicants were also aggrieved by the consequential  Seniority List of ACSOs of AFHQ Civil Services prepared by the  Departmental Promotion Committee (for short "the DPC") for  the years 1988-89 and 1989-90 respectively for promotion to  further grade of Civilian Staff Officers (CSOs).  Based on the  revised Select List in the grade of ACSOs, the claim of the  applicants was that the Select List and the Seniority List for  promotion to the grade of CSOs were drawn in contravention

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of the directions given by the Tribunal in TA No.356/1985 (CW  3/78) rendered in Shri M.G. Bansal & Ors. v. Union of India &  Ors. on 20th November, 1992 and also in violation of AFHQ  Civil Services Rules, 1968. 5.      The Tribunal, on consideration of the entire material on  record, disposed of O.A. No. 1356 of 1997 (Smt. Ammini  Rajan’s case) with the following directions:- (i)     Impugned orders Annexure-A-1 and A-2  are quashed. The respondents are directed  to determine the seniority between the  direct recruits and promotees regularly  appointed/promoted within their  respective quota by counting the length of  continuous officiation in the grade of  ACSO from their respective appointment to  the substantive vacancies within their  quota in accordance with the Rule 16(7) of  the AFHQ Rules and Schedule III of the  Rules.  In the case of promotees ACSO, the  length of continuous officiation in the  grade will be determined from the date  when they are promoted in substantive  vacancies in their lawful quota.  In case of  direct recruits ACSO, their seniority shall  be determined from the year in which they  joined the service.  While determining  seniority, respondents are directed to  adhere to the DPC year in case of promotee  officer and to retain as 1st October to 30th  of September of the following year as  provided in the rules/regulations. (ii)    Respondents are further directed to  prepare single Select List in a year for the  ACSO grade and they cannot report to two  separate lists for the purpose of merely  identifying the Note (2) Schedule III  vacancies as the rules do not envisage the  same. (iii)   Respondents are further directed that the  vacancies of DR quota may be carried  forward but while determining the  seniority the slots of the vacancies left  unfilled by the DR quota shall not be  carried forward for the purpose of  determining seniority. (iv)    It is further directed that after finalizing  the seniority list, the department shall  prepare eligibility lists for the purpose of  promotion to the next higher grade. (v)     These directions may be implemented  within a period of 6 months from the date  of receipt of a copy of this order.  No costs.

6.      Aggrieved by the order of the Tribunal, the AFHQ (DRs)  Civil Service Officers’ Association filed Writ Petition No. 4058  of 2002, the Union of India filed separate Writ Petition No.  5396/2002 and some of the Departmental Promotees ACSOs,  namely, Shri K.S. Dhingra and Smt. Ammini Rajan, filed W.P.  Nos. 4458/2002 and 62/2003 respectively, whereas AFHQ  Civil Services Officers filed C.W.P. No. 18073/2005 in the High  Court of Delhi.  The Division Bench of the High Court allowed  the Writ Petition Nos. 4058/2002 and 5396/2002 by an order  dated 14.11.2006 and set aside the order dated 01.04.2002  recorded by the Tribunal in OA No. 1356/1997 with further  direction to the respondent\026Union of India to determine the

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issue of seniority in accordance with the judgment of the  Tribunal in TA No. 356/1985 dated 20th November, 1992.   C.W.P. No. 62/2003 and C.W.P. No. 4458/2002 filed by the  DPs were dismissed and CWP No.18073/2005 was disposed of  on 15.01.2007 on the basis of direction in the above-said writ  petitions.  These appeals, therefore, arise from the said  judgments and orders of the High Court. 7.      The case of the parties is that prior to the year 1968, the  AFHQ Civil Services were governed by the executive  instructions as there were no statutory rules governing the  service.  On 1st March 1968, the Armed Forces Headquarters  Civil Service Rules, 1968 (hereinafter referred to as "the  Rules") were framed, wherein the services are classified in the  following Grades:-         (a)     Senior Administrative Grade         (b)     Director (c)     Selection Grade (Senior Civil Staff Officer/Joint      Director)         (d)     Civil Staff Officer/Deputy Director (e)     Assistant Civilian Staff Officer/Section Officer  (initially designated as Superintendent)         (f)     Assistant

Rule 16 of the said Rules deals with the seniority, which  provides that the relative seniority of the direct recruit and  promotees shall be regulated in accordance with the  provisions made in this behalf in the Third Schedule.  As per  the Third Schedule of the Rules, all temporary vacancies in the  grade of ACSO shall be filled by temporary promotion from  amongst the Assistants by the method of selection.  The Third  Schedule further provides that substantive appointment to  75% of the substantive vacancies shall be made in order of  seniority of the temporary officers of the grade, who have  completed the period of probation subject to the rejection of  unfit.  25% of the substantive vacancies shall be filled up by  the direct recruit through Civil Service Examination conducted  by UPSC.  As per Note (2) of Third Schedule, unfilled vacancies  of DR quota may be filled temporarily by promotion from  amongst Assistants by selection method.                  8.      Aggrieved by the Seniority List of 1977 published by the  Department, which was based on the principle of ante-dated  seniority in respect of ACSOs (DR), some of the ACSOs (DP)  filed Writ Petition No. 3/1978 titled as M.G. Bansal & Ors. v.  Union of India & Ors. in the High Court of Delhi inter alia  praying for the following reliefs:- (a)     Respondents have misapplied,  misconstrued and misinterpreted Rule 16(7) as  well as Third Schedule particularly Note (2),  which violates Articles 14 and 16 of the  Constitution of India. (b)     The Quota Rule has been applied  discriminately without having regard to the  approved service. (c)     When the direct recruits were inducted in  the service, they were placed above  departmental promotees who had been  promoted much earlier.  The said placing in the  seniority list was done irrespective of the date of  appointment of the direct recruits and they  could not be positioned higher than the  Departmental Promotees.

9.      After the constitution of the Central Administrative  Tribunal in the year 1985, the writ petition was transferred to  the Tribunal and was numbered as T.A. No. 356/1985.  The

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Tribunal by its order dated 2nd June, 1989 disposed of the said  petition holding that the quota prescribed in the Rules has not  broken down and the seniority between the direct recruits and  promotees regularly appointed/promoted within their  respective quota should be determined by the length of the  continuous officiation in the grade of ACSOs from their  respective appointment to the substantive vacancies under  Third Schedule.  10.    It appears from the record that on 8th November 1989,  the Union of India and some DR Officers filed two Special  Leave Petitions before this Court against the order of the  Tribunal dated 2nd June 1989.  This Court by its order dated  20th July 1991 held that the CAT had decided the controversy  without adverting to the Rules applicable to the service,  particularly Note (2) in the Third Schedule and the matter  must, therefore, be decided afresh.  Pursuant to the order of  this Court, the CAT again decided M.G. Bansal’s case (supra)  by an order dated 20th November 1992 in the following  manner:-     "(a)    It is held that Rule 16(7) and Schedule  Third so far as it relates to appointment of  the promotees and Direct Recruits in their  respective quota and determination of  seniority on the basis of quota and rota is  held valid and these are not ultra vires of  Articles 14 and 16 of the Constitution of  India.  (b)     Seniority between Direct Recruits and  Promotees regularly appointed/promoted  within their respective quota should be  determined by the length of the continuous  officiation in the grade of ACSO from their  respective appointment to the substantive  vacancies under Schedule II within their  quota, i.e., in the case of promotee ACSOs  the length of continuous officiation in the  grade will be reckoned from the date when  they are promoted in substantive  vacancies. (c)     To elucidate further, in the case of  temporarily appointed promotee ACSOs  under Note (2) of Schedule III of the rules  in the direct recruit quota w.e.f. 1969  onwards till 1977 and also thereafter their  seniority will be reckoned from the date  when they get a berth in the substantive  vacancies of their 75% quota as envisaged  under Schedule III of the Rules. (d)     The incumbents belonging to one source in  excess of their own quota and utilizing the  quota of the incumbents belonging to  another source will only officiate in the  promoted post.  It is made clear that the  direct recruits when inducted as nominees  of the UPSC, the promotees in the quota of  the direct recruits on the basis of Note (2)  of the Rules of Schedule III will either be  reverted or will be absorbed in the  vacancies within their quota of subsequent  year.  The period of officiation outside their  quota of either of their incumbents from  other source will not count for their  seniority.  If an officer has been promoted  within his quota, then it would be date of  confirmation which would be relevant for

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the officer’s seniority. (e)     When the promotions are made from either  of the sources, by direct recruitment or by  departmental  promotion there shall be  due compliance of the various instructions  and office memorandum issued by the  Department of Personnel and Training on  the reservation of vacancies for SC/ST and  categories in the proportion directed  in  the said instruction.  The reservation,  however, shall remain only at the time of  appointment and not in the seniority inter  se of the Direct Recruits and promotees  which shall be fixed as laid down in Rule  16(7) read with Schedule III and as  directed in the preceding sub-paras above. (f)     It is further directed that each quota, as  referred to in Schedule 3 of the Rules as to  be worked out independently on its own  force.  Direct recruit quota of ACSO which  is confined to substantive vacancies in the  grade can be filled by temporarily  appointed Assistants by promotion in the  grade of ACSO, but without giving them  any right of seniority on the basis of  continuous officiation on the vacancies  earmarked for Direct Recruits and indent  for which has been sent to the UPSC for  nomination from the civil services  examination of a particular year.  The  hopes and aspirations of the promotees  aforesaid cannot be related to availability  of Direct Recruits filling their quota in that  particular year and only it can be when  there is total collapse and break down of  the quota for a number of years. (g)     None of the parties including the official  respondents have given relevant data as to  when the actual promotion  of Assistants  were made to the temporary cadre of ACSO  in the direct recruit quota under Note (2) of  Schedule 3 the official respondents on the  other hand have taken the stand in the  chart quote in the body of the judgment  that of such vacancies in the direct recruit  quota were left unfilled and have been  filled temporarily by the Assistant by  making departmental promotions and  since the exact number is not coming for  the and also the position whether such  departmental promotees were absorbed in  the subsequent vacancies within their  quota of 75% direct is issued to revise the  impugned seniority list in the light of the  observations made in the above sub-paras  which shall be made final after hearing the  objections on the same and the petitioners,  who have since retired, shall be entitled to  any consequential benefits occasioned on  account of the revision of the seniority list.   The impugned seniority list of 1977 shall  stand quashed to that extent.  In the  circumstances, the parties shall bear their  own costs."

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11.     The Union of India, in the garb of implementing the  above-said order of the Tribunal in the case of M.G. Bansal,  started splitting up vacancies from the year 1992 and  prepared two separate Select Lists for each year retrospectively  for the grade of ACSOs.  One list was prepared in respect of  ACSO(DPs) who allegedly were temporarily appointed against  the unfilled vacancies meant for ACSO(DRs) as per Note (2) in  the Third Schedule on the basis of calendar year as against  originally drawn period from 1st October to 30th September  each year as provided in the Rules.  It appears that prior to  the implementation of the order in M.G. Bansal’s case, draft  Seniority List issued in 1995 was based on the principle of  carrying forward of slots and ACSO(DRs) were being given  about 10 to 15 years ante-dated seniority even when they have  not been holding any office in the service.  Some of the ACSO  (DPs), namely, Smt. Ammini Rajan and others filed O.A. No.  1356/1997 before the Central Administrative Tribunal  challenging the redrawn Select List for the years 1988-89 and  1989-90 in purported compliance with the directions of M.G.  Bansal’s case.  The Tribunal by its order dated 1st April, 2002,  as noticed above, disposed of the said O.A. with the above-said  directions.   12.     The AFHQ Civil Services (DR Gazetted) Officers’  Association and others filed O.A. No. 2484/2004 before the  Tribunal.  The Tribunal by its order dated 1st September, 2005  dismissed the said application holding that there is no  illegality in the preparation of Seniority List.  Some of the  ACSOs(DRs) filed C.W.P. No. 18073/2005 before the High  Court of Delhi challenging the order of the Tribunal dated 1st  September, 2005 which was also allowed by the High Court  along with the above-mentioned writ petitions.   13.     We have heard the learned counsel for the parties, Shri  R. Tanwar, President, AFHQ Civilian Officers’ Association and  other parties in-person.   14.      Mr. Paramjit Singh Patwalia, learned senior Advocate  appearing on behalf of the appellant- AFHQ/ISOs SOs (DP)  Association contended that the Division Bench of the High  Court has lost sight of the fact that Rules 16(6) and 16(7) do  not provide carrying forward of slots, which were examined in  detail by the Central Administrative Tribunal in M.G. Bansal’s  case.  On the basis of the interpretation of the said Rules, the  CAT had fixed the seniority of DR and DP ACSOs based on the  length of continuous officiation and the High Court could not  have reversed the judgment of M.G. Bansal’s case which had  attained finality after the dismissal of the SLP by the Hon’ble  Supreme Court.  He next contended that in the Smt. Ammini  Rajan’s case, the main claim was only for the implementation  of the order recorded by the CAT in M.G. Bansal’s case and  other reliefs were ancillary in substance.  According to the  learned counsel, one of the main issues agitated in the case of  M.G.Bansal was that DR ACSOs, who joined later in point of  time, were made seniors to the promotees ACSOs, who were  regularly promoted earlier to the DR ACSOs.  The situation  had occurred due to the assignment of antedated seniority,  i.e., giving seniority from the date of occurrence of vacancy to  DR ACSOs and as the Central Government has wrongly  implemented the observations contained in para 25(b) of M.G.  Bansal’s case, which resulted in filing of the petition by Smt.  Ammini Rajan and other DR ACSOs, which came to be decided  by the CAT in favour of Smt. Ammini Rajan and others, relying  upon the judgment of the CAT in M.G. Bansal’s case.  He also  contended that if the vacant slots of DR vacancies are carried  forward, as directed in the impugned judgments of the High  Court, the direct recruits will get an undue advantage of more  than 12 years of ante-dated seniority without holding the

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office.  He next submitted that the fundamental principle of  determination of seniority between direct recruits and  promotees regularly appointed/promoted within their  respective quota should be determined by the length of  continuous officiation in the grade of ACSOs from their  respective appointment to the substantive vacancies under  Third Schedule of the Rules within their quota and the  impugned judgment of the High Court observing in paras 13  and 16 to carry forward vacant slots of direct recruits is  conflicting with the final judgment of the CAT rendered in M.G.  Bansal’s case which has directed the fixation of seniority  based on length of continuous officiation of direct recruits and  promotees. 15.     Mr. L.N. Rao, learned senior Advocate, resisting the  aforesaid submissions, argued that the judgment of the High  Court cannot be found faulty on any ground and the seniority  inter se between the direct recruits and departmental  promotees has to be determined in the ratio as prescribed in  the Third Schedule of the Rules, which deals with the  substantive vacancies without giving any benefit of length of  the continuous officiation in the grade of ACSOs from the  respective appointment  to the substantive vacancies under  Schedule Three to the Rules within their quota.  16.       Mr. Rakesh Khanna, learned senior Advocate appearing  on behalf of the respondents-AFHQ Civilian Officers’  Association and Mr. P. Vishwanath Shetty, learned senior  Advocate appearing on behalf of the Union of India, have  sought to support the judgment of the High Court and  contended that the promotees ACSOs appointed under Note (2)  of the Third Schedule cannot get the benefit of continuous  officiation in the grade of ACSOs.   They also submitted that  the seniority of promotees among themselves was determined  under Rule 16(5), i.e. in the order in which they were  appointed in substantive vacancies in their quota and the inter  se seniority of the DRs among themselves was determined as  per the Rule 16(6) in the order of merit in which they were  placed in the competitive examination.  According to the  learned counsel, the actual date of joining in the post had no  bearing on fixation of seniority among the promotees and  direct recruits themselves and inter se seniority of DRs and  DPs appointed against the substantive vacancies in their own  quota was determined on the basis of rotation of vacancies  between DRs and DPs in the ratio of 75% : 25% without  allowing lapsing of vacancies either from DRs or DPs quota. 17.     In support of the respective contentions, the learned  counsel for the parties have relied upon certain decisions of  this Court, which we shall deal and consider in the later part  of the judgment.    18.     After a perusal of the facts involved here and having  heard the parties at length, we feel that the issues that need to  be addressed by us in this case are:- (i) Whether seniority between Direct Recruits and Promotees  regularly appointed/promoted within their respective quota  should be determined by the length of the continuous  officiation in the grade of ACSO from their respective  appointment to the substantive vacancies under Schedule II of  the Rules within their quota, i.e., in the case of promotee  ACSOs the length of continuous officiation in the grade will be  reckoned from the date when they are promoted in substantive  vacancies in their quota. (ii) Whether the incumbents belonging to one source in excess  of their own quota and utilizing the quota of the incumbents  belonging to another source will only officiate in the promoted  post.  The direct recruits when inducted in service through  selection by the UPSC, the promotees in the quota of the direct

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recruits on the basis of Note (2) of the Rules of Schedule III will  either be reverted or will be absorbed in the vacancies within  their quota of subsequent year and the period of officiation  outside their quota of either of the incumbents from other  source will not count for their seniority.   19.     For the purpose of determination of the above-said  points, we may notice the relevant Rules. Rule 13 deals with probation, which states that (1) Every  direct recruit shall initially be appointed on probation for two  years from the date of appointment and (2) Every person other  than a direct recruit shall, when appointed to the grade of  CSO, ACSO and Assistant, be on probation for a period of two  years from the date of such appointment.  Rule 14 deals with  confirmation of probationers.  The quota between the direct  recruits and the promotees is governed by Rule 16, which  reads as under:- "16. Seniority:- (1) All permanent offices  included in the initial constitution of a  Grade under Rule 9 shall rank senior to all  persons substantively appointed to that  Grade with effect from any date after the  appointed day, and all temporary officers  included in the initial constitution of a  grade under that rule shall rank senior to  all temporary officers appointed to that  Grade with effect from any date after the  appointed day. (2) The seniority inter se of permanent  officers included in the initial constitution  of a Grade shall be regulated in the order  in which they are so appointed. (3) The seniority inter se of temporary  officers included in the initial constitution  of a Grade shall be regulated in the order  in which they are so appointed. (4) The seniority inter se of officers  regularly appointed to the grade of Joint  Director and Senior Civilian Staff Officer  before the coming into force of the Armed  Forces Headquarters Civil Service (Second  Amendment) Rules, 1975, shall be  regulated in the Selection Grade of the  Service in the following order:- (a) Officers holding the posts of  Joint Directors in an officiating  capacity, arranged in the order of  their seniority in that Grade; (b) Officers holding the posts of  Senior Civilian Staff Officers in a  substantive capacity, arranged in  the order of their seniority in that  Grade; (c) Officers holding the posts of  Senior Civilian Staff Officers in an  officiating capacity, arranged in the  order of their seniority in that  Grade; (5) Except as provided, in sub-rule (7), the  seniority of persons appointed to any grade  after the appointed day shall be  determined in the following manner,  namely:- (i) Permanent Officers.- The  seniority inter se of officers  substantively appointed to the

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Grade after the appointed day shall  be regulated in the order in which  they are so appointed; (ii) Temporary Officers.- The  seniority inter se of temporary  officers appointed to the Grade  after the appointed day shall be  regulated in the order of their  selection for such promotion. (6) Direct recruits shall be ranked inter se  in the order of merit in which they are  placed at a competitive examination on the  results of which they are recruited, the  recruits of an earlier examination being  ranked senior to those of a later  examination.  On confirmation, their inter  se seniority shall be regulated in the order  in which they are so confirmed : Provided that the seniority of persons  recruited through the competitive  examinations held by the Commission \026 (i)     in whose case offers of  appointment are revived after  being cancelled, or (ii)    who are not initially  appointed for valid reasons but are  appointed after the appointment of  candidates recruited on the basis  of the results of the subsequent  examination or examinations,  shall be such as may be determined by the  Government in consultation with the  Commission.  (7) The relative seniority of the direct  recruits to a Grade and persons appointed  to the Grade by departmental promotion  shall be regulated in accordance with the  provisions made in this behalf in the Third  Schedule. (8) All officers substantively appointed to  any Grade shall rank senior to those  holding temporary or officiating  appointments in that Grade.

20.     Rule 2(p) defines "temporary officer" to mean a person  holding a temporary or officiating appointment in that Grade  on the basis of his being regularly approved for such  appointment.  Rule 2(l) defines "permanent officer" to mean a  person who has been substantively appointed to a substantive  vacancy in that grade.  Rule 10 provides for future  maintenance of the service which states that the service shall  be maintained in future as indicated in the Third Schedule.   Third Schedule of the Rules in relation to ACSO (Group ’B’  Gazetted) reads as under:- "Substantive vacancies (a)     Substantive appointments to 75% of  substantive vacancies in the Grade shall  be made in the order of seniority of  temporary officers of the Grade, who have  completed the period of probation  satisfactorily, subject to the rejection of  the unfit. (b)     25% of the substantive vacancies  shall be filled by direct recruitment on  the basis of combined competitive

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examination held by the Commission for  recruitment to the Central Services,  Group ’A’/Group ’B’, Assistant Civilian  Staff Officers so recruited shall be  confirmed in the manner as indicated in  Rule 14. The relative seniority of the above  categories of officers shall be determined  according to the rotation of vacancies  between departmental promotees and  direct recruits which shall be based on  the quotas of vacancies reserved for  promotion and direct recruitment. Note (1) Reservation of vacancies  against the quota reserved for direct  recruitment, for Scheduled Castes and  Scheduled Tribes and released  Emergency Commissioned Officers and  Short Service Regular Commissioned  Officers shall be in accordance with the  rules and orders issued by the  Government from time to time. (2)     Substantive vacancies at (b) may be  filled temporarily by promotion from  amongst Assistants on the basis of  selection.  Such promotions shall be  terminated when the nominees of the  Commission become available to fill  the substantive vacancies." Temporary Vacancies Temporary vacancies in the Grade of  Assistant Civilian Staff Officer shall be filled  by temporary promotion from amongst  Assistants on the basis of selection. Provided that if any person in the Grade of  Assistants is considered for promotion to  the Grade of Assistant Civilian Staff Officer,  all persons belonging to Scheduled Castes  or Scheduled Tribes who are senior to him  in that Grade, shall also be considered  notwithstanding that they may not have  rendered five years’ continuous approved  service in that grade.

21.     On a plain reading of the above-extracted provisions of  Third Schedule, it is clear that substantive vacancies to the  extent of 75% shall be made in the order of seniority of  temporary officers of the Grade, who have completed the  period of probation successfully and 25% of the substantive  vacancies shall be filled by direct recruitment on the basis of  qualifying Combined Competitive Examination held by the  Commission for recruitment to the Central Services, Group ’A’  /Group ’B’.  The relative seniority of the above categories of  officers shall be determined according to the rotation of  vacancies between departmental promotees appointed to the  substantive posts and direct recruits which shall be based on  the quota of vacancies reserved for each source.  Note (2)  under the Third Schedule of the Rules provides that  "substantive vacancies" meant for direct recruits may be filled  temporarily by promotion from amongst Assistants on the  basis of selection, but such promotions shall be terminated  when the nominees of the Commission become available to fill  the substantive vacancies in 25% quota. 22.      In the teeth of the relevant Rules governing the relative  seniority inter se between DRs and DPs under Rule 16 and

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substantive appointments of ACSOs in the ratio of 75% under  clause (a) and appointments of direct recruits to the Central  Services Group ’A’ / Group ’B’ in the ratio of 25% as provided  in clause (b), the seniority list is required to be maintained by  the authority.     23.   The seniority list of 1977 circulated by the respondent- Union of India inter se the DRs and DPs was under challenge  before the Central Administrative Tribunal, Principal Bench,  New Delhi, in T.A. No.356/85 (C.W. 3/78) titled Shri M.G.  Bansal & Ors. v. Union of India & Ors., which was decided on  20.11.1992.  In the said petition, Union of India had  submitted a Tabular Statement showing details of substantive  vacancies in the grade of Assistant Civilian Staff Officers and  from the perusal of the Chart, the Tribunal observed that  every time the vacancies were calculated and a requisition was  sent to the UPSC for sending nominees for appointment as  direct recruits in the ratio \026 15% SC, 7.5% ST and 25%  released emergency commission officers of the total number of  vacancies.  The Tribunal has found that all the direct recruits,  who were nominated by the UPSC, did not join in that  particular year.  Before the Tribunal, the case of the  Interveners was that the quota has lapsed and cannot be  carried forward, whereas the case of the direct recruits was  that the quota rule had broken down as direct recruitments  had not been made for many years and on account of such  failure, fixation of seniority with reference to the rotational  method was not available to be followed.  The Tribunal, on  perusal of the Chart made available to it by the Union of India,  observed that since 1969 till 1977 in each of the year, direct  recruits have joined the service, though in lesser number.  In  1969, 10 direct recruits joined against the quota of 32; in  1970, 3 direct recruits joined against 13 vacancies; whereas in  the year 1971, 11 direct recruits joined against 16 vacancies,  whereas in the year 1972, 16 direct recruits joined against 9  vacancies and in the year 1973, 8 direct recruits joined  against 19 vacancies.  Similarly, in the year 1974, against 20  vacancies only 13 direct recruits joined the service; in 1975,  29 direct recruits joined against 19 vacancies; in 1976, 17  direct recruits joined against 25 vacancies and in the year  1977, 23 direct recruits joined against 14 vacancies.  Thus,  there was a shortfall of direct recruits in joining the service in  their quota excepting in the years 1972 and 1975 where  persons in excess have joined than the earmarked quota as  per the rules.  It was a specific case of the DPs before the  Tribunal that no substantive/temporary vacancy was kept  unfilled and these were filled by promoting Assistants on  officiation temporary basis in accordance with the provisions  of the Rules.  Thus, there has been no break down of the  quota.  The quota also to some extent was not filled up to the  extent it was desired though UPSC has recommended  sufficient number of direct recruits, but because of certain  facts, all of them did not join for the reasons best known to  them.  The record would also show that the Union of India  have carried forward the unfilled vacancies of direct recruits to  the next year.  The Chart would further show that in the year  between 1968 and 1974, the direct recruits vacancies were 87  in the ratio of 25% in terms of the rules and the vacancies  intimated to UPSC were 132.  The UPSC nominated 126  candidates, but 48 candidates actually joined the service.   Thus, taking all these facts into account, the Tribunal has  rightly observed that there cannot be a case where the quota  has broken down; rather this is a case of distortion of the  quota.  Note (2) to the Third Schedule referred to above  mandates that substantive vacancies at (b) may be filled  temporarily by promotion from amongst Assistants on the

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basis of selection.  Such promotion shall be terminated when  the nominees of the Commission would become available to fill  the substantive vacancy.  In the AFHQ Civil Service,  promotions were made against direct recruit vacancies after  the vacancies had been notified to the Public Commission.   The promotions were temporary and the promotees were given  seniority in accordance with Rule 16.5(ii) and after completing  their probation, they were confirmed only when substantive  vacancies were found available in their quota.  The inter se  seniority was, therefore, only between substantive vacancy  promotees and substantive direct recruits.  All promotee  substantive ACSOs were assigned seniority under Rule 16(1),  whereas all direct recruits were assigned seniority under Rule  16.6.  Thereafter, these two seniority lists of substantive  officers from the two sources of recruitment are integrated  under Rule 16.7, i.e. in accordance with the well-known  principle of quota rota rule.  Thus, it is evident that the late  induction of the direct recruits does not interfere with the  seniority of the promotee officers under Rule 16.5. 24.    Further, Note (2) to the Third Schedule is to be read with  Rule 11.1 of the Rules and the Regulations made thereunder  so that substantive vacancies shall be intimated to UPSC well  within time.  Note (2) is an enabling provision insofar as it  permits the Government to fill the vacancies temporarily  through selection.  There is a mandate in Note (2) that these  promotions will be terminated when the direct recruits would  join the post.  Thus, by the time the direct recruit had come or  is likely to come, such a promotee who happens to occupy a  berth of the direct recruit by virtue of Note (2) to Schedule  Third will normally, because of his seniority, get a berth in his  own quota.  The order of the Tribunal shows that the  applicants and the interveners, however, could not furnish any  data to show that the promotees, who are occupying the berth  of direct recruits under Note (2) temporarily, were  subsequently got adjusted in the prescribed quota of  departmental promotees against the substantive vacancies.   On perusal, we find that no time-limit is prescribed in Note (2)  during which such temporarily promoted Assistants to the  grade of ACSOs in the quota of direct recruits can enjoy that  benefit.  Note (2) only provides that whenever direct recruits  become available, the appointment of such promotees shall  stand terminated.  No other interpretation of Note (2) can be  possible.  Note (2) to the Third Schedule safeguards the  interest of the direct recruits, who though are successful in  the Civil Service Examination conducted by the UPSC and yet  are waiting for their appointment as the appointment of the  direct recruits is bound to take some time.  Merely because  there is late arrival of direct recruits, the quota reserved for  them cannot be taken as lapsed nor can it be taken to have led  to break down of the quota rule.  The relevant rules, as  referred to above, clearly envisage that the continuous  officiation in a service without break also gives the benefit of  seniority, but in a case where the recruitment is from two  sources and the quota is prescribed, then the person from one  source cannot take the benefit available to the other source  within the quota.  Thus, promotees who have been promoted  within their quota of 75%  under the rules as prescribed under  Third Schedule read with  Rule 16(7) of the Rules would get  the benefit of continuous officiation from the date of their  substantive appointment to the grade of availability of a  substantive post and after having worked on temporary basis  in the grade.  Those who have been appointed temporarily  under Note (2) from the cadre of Assistants to the grade of  Assistant Civilian Officers temporarily, would not get the  benefit of their continuous officiation and shall be liable by

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operation of law to be reverted or there shall be deemed  reversion when the nominees from the UPSC would join on the  recommendations of the UPSC.  Such temporary officers may  not actually face reversion because by the time the vacancies  of the next year may become available in their quota of 75%  and they can very well, by virtue of their seniority, earn the  benefit of substantive appointment under the Third Schedule.   25.      Now, coming to the issue whether the High Court was  justified in granting relief to DRs Association in CWP No.4058  of 2002 and Union of India v. Smt. Ammini Rajan & Ors. in Writ  Petition (C) No.5396 of 2002 by overlooking and not properly  appreciating the substance of the order recorded by the CAT in  Shri M.G. Bansal’s case.  The High Court, by its impugned  order dated 14.11.2006, has held that the order of the Central  Administrative Tribunal in Smt.Ammini Rajan’s case is  contrary to its earlier decision dated 20.11.1992 passed in  M.G. Bansal’s case.  The High Court directed the issue of  seniority to be determined as it was done prior to Smt. Ammini  Rajan’s case was decided by the Tribunal.  The High Court  further held that the direction of the CAT where it is held that  the seniority of DRs should be determined from the date of  joining and further that the unfilled vacancies and not the  slots can be carried forward, is contradictory to the decision of  the CAT in M.G. Bansal’s case.  We are afraid to agree with the  reasoning of the High Court.  If such reasoning of the High  Court is accepted, the consequences would be that the draft  seniority list of ACSOs would be taken as it stood on  01.05.1995, which was challenged before the Tribunal in O.A.  filed by Smt. Ammini Rajan and others as the draft seniority list  was not settled in terms of the decision of the CAT in M.G.  Bansal’s case, which admittedly has attained finality.  The  judgment of the High Court setting aside the order of the  Tribunal in Smt. Ammini Rajan’s case would plainly amount to  interference with the decision of the CAT in M.G. Bansal’s case  and further if the order of the High Court is given effect to, the  result thereof would be that the DRs. shall be permitted to  take advantage of more than 12 years of ante-dated seniority  without holding an office.  The petition filed by Smt. Ammini  Rajan was primarily seeking implementation of the earlier  decision of the CAT in Shri M.G. Bansal’s case.  On bare  examination of the decision of the CAT rendered in Smt.  Ammini Rajan’ case, we find no discrepancy, no contradiction  or overlapping or inconsistency whatsoever in the said order  as compared to the earlier decision of the CAT in Shri M.G.  Bansal’s case.  Therefore, the order of the High Court, in our  view, is erroneous as the High Court has committed an error  in understanding and appreciating the gist of the order  recorded by the CAT in Smt. Ammini Rajan’s case.    26.     Mr. Paramjit Singh Patwalia, learned senior Advocate  appearing on behalf of the appellant-AFHQ/ISOs SOs (DP)  Association, in support of his submissions, placed reliance  upon the case of Suraj Prakash Gupta & Ors. v. State of J & K  & Ors. [(2000) 7 SCC 561].  In the said case, this Court while  dealing with a situation of giving direct recruitment  appointment ante-dated from the date of occurrence of a  vacancy in the direct recruitment quota, even if on that date  the said person was not directly recruited.  The Court, in  answer to Point No.4, held as under:   

"Point 4  Direct recruits cannot claim appointment  from date of vacancy in quota before their  selection  80. We have next to refer to one other  contention raised by the respondent

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direct recruits. They claimed that the  direct recruitment appointment can be  ante-dated from the date of occurrence of  a vacancy in the direct recruitment  quota, even if on that date the said  person was not directly recruited. It was  submitted that if the promotees occupied  the quota belonging to direct recruits  they had to be pushed down, whenever  direct recruitment was made. Once they  were so pushed down, even if the direct  recruit came later, he should be put in  the direct recruit slot from the date on  which such a slot was available under the  direct recruitment quota. 81. This contention, in our view, cannot  be accepted. The reason as to why this  argument is wrong is that 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 the  service. This principle is well settled. In  N.K. Chauhan v. State of Gujarat 14 (SCC  at p.   325, para 32) Krishna Iyer, J.  stated:  Later direct recruits cannot claim  deemed dates of appointment for  seniority with effect from the time  when direct recruitment vacancy  arose. Seniority will depend upon  length of service.  Again, in A. Janardhana v. Union of India  25 it was held that a later direct recruit  cannot claim seniority from a date before  his birth in the service or when he was in  school or college. Similarly it was pointed  out in A.N. Pathak v. Secy. to the Govt.  (SCC at p. 767) that slots cannot be kept  reserved for direct recruits for  retrospective appointments."  

27.     In State of Uttaranchal & Anr. v. Dinesh Kumar Sharma  [(2007) 1 SCC 683], this Court has clearly held that the  seniority is to be reckoned not from the date when the vacancy  arose, but from the date on which the appointment is made to  the post.   28.   In M. Subba Reddy & Anr., etc. v. A. P. State Road  Transport Corporation & Ors. [(2004) 6 SCC 729], relied upon  by Mr. L. N. Rao, learned senior Advocate appearing on behalf  of AFHQ Civil Service (Direct Recruits-Gazetted) Officers’  Association, this Court while dealing with inter se seniority  between direct recruits and promotees to the posts of  Assistant Traffic Manager (for short "ATM") and Assistant  Mechanical Engineer (for short "AME") in A.P. State Road  Transport Corporation, held that rota rule is inbuilt in the  quota prescribed in Item 3, Annexure ’A’ (Section B) to A.P.  SRTC Employees (Recruitment) Regulations, 1966 and could  not be deviated from.  In that case, the appellant promotees  were promoted to the posts of ATMs/AMEs temporarily under  Regulation 30 as there were no direct recruits available.  They  were promoted subject to being reverted to substantive posts  on approved candidates becoming available.  Regulation 34(6)  states that the revertees shall subsequently be considered for  repromotion against the quota of vacancies reserved for

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promotees.  Therefore, one has to read Regulation 3 of the A.P.  SRTC Employees (Service) Regulations, 1964 with Regulations  30 and 34 of the Recruitment Regulations.  It is only when  such revertees are repromoted as per Regulation 34, they can  be deemed to have been appointed to the posts of ATM or  AME. Therefore, when the appellants were tentatively  appointed to the post of ATMs/AMEs originally for want of  direct recruits and to the posts reserved for direct recruits, it  cannot be said that they were first appointed to that category  within the meaning of Regulation 3 of the Service Regulations.   Therefore, seniority had to be fixed between the direct recruits  and the promotees strictly in accordance with the quota  provided for in Item 3 of Annexure ’A’ (Section B).   The said  Regulations prescribe a quota of 1:1, which leads to rota for  confirmation.  The contention of the appellants before this  Court was that they had a right to be promoted within their  quota during the years 1981 to 1987, when vacancies for  promotees’ quota became available.  M. Subba Reddy,  appellant in that case, was regularized from 27.12.1986 vide  order dated 9.9.1988, when no direct recruits were available  and, therefore, it was improper for the Corporation to place  direct recruits above the promotees.  The appellant submitted  that in such a case the quota in Item 3(1) of Annexure ’A’ to  the Recruitment Rules would not apply; that the said item  prescribed only quota and not rota for seniority and that the  direct recruits could not claim appointment from the date of  vacancy in their quota before their selecton.  They added that  seniority was dealt with only by Regulation 3 of the Service  Regulations, 1964 and not by Regulation 34 of the  Recruitment Regulations, 1966.  That in view of the 15.9.1995  amendment, Regulation 34 referred to only allocation of  vacancy and not for determination of seniority.  A total ban for  direct recruitment was imposed by the State from the year  1977 to 1988 and, thus, the purported quota-and-rota rule  contained in Item 3 of Annexure ’A’ could not have been given  effect to.  The majority view of this Court was that 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. We, with respect, do not support the view of the  learned Judges that in the facts and circumstances of the case  the quota has not broken down because of inaction on the  part of the Government in imposing ban in filling up the posts  meant for direct recruits.  The appellants in the said case were  promoted in a regular manner having been regularized in  service with retrospective effect.  Their services were not  regularized from the date of their initial ad hoc promotion but  with effect from the date when the vacancies became available.   Their services after regularization would not be by way of a  stop-gap arrangement. The direct recruits who were appointed  in the years 1990 and 1991, in terms of Item 3 of Annexure ’A’  would be considered to have been appointed only after their  successful completion of training.  They were borne in the  cadre in the years 1990-91 and, thus, prior thereto they  cannot claim seniority.  The learned third Judge, dissenting  with the learned two Judges, has held that the direct recruit  can claim seniority from the date of his regular appointment,  he cannot claim seniority from a date when he was not borne  in the service.  Thus, the direct recruits of 1990 and 1991, by  reason of the impugned seniority list, could not have been  placed over and above the appellants-promotees because the  purported quota and rota rule contained in Item 3 of Annexure  ’A’ could not have been given effect to because the State  Government had imposed total ban for direct recruitment from  the year 1977 to 1988.  In such a situation, the said quota

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rule became inoperative.  We agree with the dissenting view of  the learned Judge that in the facts of the case, the quota rule  became inoperative because the direct recruits were borne in  the cadre when they were appointed against the vacancies  meant for them.  Therefore, the majority view in M. Subba  Reddy & Anr., etc. (supra) is of no assistance to the AFHQ Civil  Service (Direct Recruits) Officers Association as the relative  seniority between the direct recruits and regularly appointed/  promoted candidates within their respective quota, in the  present case, shall be determined by the length of the  continuous officiation in the grade of ACSO from their  respective appointment to the substantive vacancies in terms  of Schedule Third within their quota as held by the CAT in     M.G. Bansal’s case, which has attained finality after dismissal  of the SLPs filed against the said order of the Tribunal.                      29.     Mr. Rakesh Khanna, learned senior Advocate appearing  on behalf of some of the respondents, in support of his  submissions, has placed reliance upon the case of   O.P. Singla  & Anr., etc. v. Union of India & Ors. [(1984) 4 SCC 450] inter  alia contending that for determining an equitable rule of  seniority between direct recruits and promotees, attempt must  be made to minimise, as far as possible, the inequities and  disparities in terms of the rota-quota rule which has broken  down in this case.  In the said case, this Court has held that  the seniority of DRs and Promotees appointed under the  relevant rules must be determined according to the dates of  which direct recruits were appointed to their respective posts  and the dates from which the promotees have been officiating  continuously either in temporary posts created in the service  or in substantive vacancies to which they were appointed in a  temporary capacity.  The said decision, in our view, is of no  assistance to the contesting parties represented by Mr. Rakesh  Khanna, learned senior counsel, in the facts and  circumstances of the present cases. 30.      In Arvinder Singh Bains v. State of Punjab & Ors. [(2006)  6 SCC 673], relied upon by Mr. Siddarth Dave, Advocate, the  issue before this Court related to the inter-relation between  Rules 18 and 21 of the Punjab Civil Services (Executive  Branch) (Class I) Rules, 1976.  On consideration of the factual  situation of the case and the rules governing the services of  the employees, this Court said that rota and quota must  necessarily be reflected in the seniority list and any seniority  list prepared in violation of rota and quota is bound to be  negated.  The Court found in the said case that the action of  the respondents in determining the seniority is clearly in total  disregard of rota-quota rule prescribed in Rule 18 of the 1976  Rules and, therefore, writ of mandamus was issued to the  respondents directing them to prepare the seniority list of the  appellants who belong to the PCS (EB) in accordance with  Rule 18 and read with Rule 21 of the 1976 Rules by fixing  seniority according to the roster prescribed under Rule 18 of  the 1976 Rules. 31.    In Gonal Bihimappa v. State of Karnataka & Ors. [1987  Suppl. 207] relied upon by Mr. P. Vishwanath Shetty, learned  senior Advocate appearing on behalf of the Union of India, this  Court held that the quota rules has to be strictly enforced and  it is not open to the authorities to meddle with it on the  ground of administrative exigencies.  Further, in that case the  scheme in force relating to the services for fixing inter se  seniority took into account the filling up of the vacancies in  the service from the two sources on the basis of the quota and  fixation of inter se seniority in the gradation list has to be  worked out on the basis of quota.  There cannot be any doubt  or quarrel to the well-settled law that inter se seniority  between direct recruits and promotees should be fixed on the

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basis of quota-and-rota rule/instructions governing the service  conditions of the employees.  32.       In the light of the above factual situation, service rules  governing the conditions of service of employees and the  settled proposition of law, we are of the opinion that the  judgment and order dated 14.11.2006 in C.W.P.  No.4058/2002, CWP No.5396/2002 and subsequent judgment  dated 15.01.2007 in CWP No.18073/2005 of the High Court of  Delhi passed in AFHQ Civil Service Officers Association v.  Union of India & Ors. are not sustainable and deserve to be set  aside to the extent of setting aside the order of the Tribunal in  Smt. Ammini Rajan’s case holding that the said order is  contrary to the earlier judgment of the CAT dated 20.11.1992  recorded in M.G. Bansal’s case.  This view of the High Court  apparently appears to be contrary and contradictory to the  judgment and order of the CAT dated 20.11.1992 passed in  T.A. No.356/1985 (CW 3/1978) titled Shri M.G. Bansal & Ors.  v. Union of India & Ors. in which the impugned seniority list of  1977 stood quashed and the respondent(s)-authority were  directed to implement the said judgment in terms of the  observations/directions contained in paragraph 25 of the said  judgment.  The judgment of the CAT in M.G. Bansal’s case has  attained finality when two SLPs filed by the DRs against the  said judgment came to be dismissed by this Court on  20.01.1995. Consequently, the Writ Petition CWP  No.4058/2002 of the AFHQ Civil Service (Direct Recruits- Gazetted) Officers’ Association and CWP No.5396/2002  preferred by Union of India against the order of the CAT in OA  No.1356/1997 titled Smt. Ammini Rajan & Ors. v. Union of  India & Ors. are dismissed.  CWP No.62/2003 and CWP  No.4458/2002 filed by the DPs shall stand allowed  accordingly.  CWP No.18073/2005 shall also stand disposed of  in terms of this judgment.  As the dispute and controversy  relating to inter se seniority between the DPs and DRs has  remained unsettled and is lingering over the past many years,  the respondent-authority is directed to determine and settle  the seniority list in strict compliance and spirit of the  judgment of the CAT dated 20.11.1992 in TA No.356/1985  (CW 3/1978) rendered in Shri M.G. Bansal & Ors. v. Union of  India & Ors.   The directions so contained in the said judgment  shall be carried out within three months from the date of this  judgment.   33.      For the reasons stated above, the appeals are allowed to  the extent indicated above. However, in the facts and  circumstances of the case, the parties are left to bear their  own costs.