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PETITIONER: NARENDER CHADHA & ORS.

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT11/02/1986

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) REDDY, O. CHINNAPPA (J)

CITATION:  1986 AIR  638            1986 SCR  (1) 211  1986 SCC  (2) 157        1986 SCALE  (1)154  CITATOR INFO :  D          1987 SC 424  (12,24)  R          1987 SC 716  (13)  RF         1987 SC1676  (21)  D          1989 SC 278  (20)  E          1990 SC1256  (26,32)  R          1990 SC1607  (13)  E&D        1991 SC 284  (1,24,25,30,31)  D          1991 SC1818  (6)  D          1992 SC1188  (4,5)  E          1992 SC1363  (1,4,TO,7,9,TO,13)

ACT:      Constitution of India, 1950 - Articles 14 and 16.      Indian Economic/Indian Statistical Service Rules, 1961.      Direct recruits and promotees - Promotees holding posts in Grade  IV of  Service in deliberate breach of quota rules continuously for  15 to  20 years  on temporary/ad hoc basis Fixation of  inter se seniority - Whether to be placed lower in seniority  list to direct recruits entering service after such promotees  - Quota rule - Not maintained - Rules confer relaxation power on Government - Whether relaxation of quota rule to be assumed.

HEADNOTE:      The Indian  Economic Service Rules, 1961 and the Indian Statistical Service Rules, 1961 were notified on November 1, 1961. These  Services were constituted with effect from that date by  encadering numerous  posts  carrying  economic  and statistical  functions   in  various   ministries   of   the Government of  India. Both  the Services have Grade I, Grade II, Grade  III and Grade IV posts and Officers of Grade I to Grade IV  are classified as Class-I Officers. The authorised permanent strength of each of the Services is to be fixed by the Controlling  Authority, constituted  under  Rule  6,  in accordance with  the Rules.  Under Rule  7, the Union Public Service Commission  was required  to constitute  a Selection Committee  to  determine  the  suitability  of  departmental candidates for  appointment to  the different  grades and to prepare an  order of  preference  for  each  grade  for  the initial constitution of both the Services. On receipt of the Committee’ 8  report, the Commission was required to forward its recommendations  to  the  Government.  The  departmental

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candidates who were not absorbed at the initial constitution of the  Service were  given the  opportunity  to  apply  for future vacancies.  Future maintenance of the two Services is governed by Rule 8. 212      After the  initial constitution of the two Services was completed it  was found  that a  number  of  posts  carrying economic/statistical functions  could not  be considered for inclusion in the officers’ Grades. Further as the process of formation of  the two Services was prolonged for a number of years and  the need  for appointing more officers in various Departments during  that long  period also  arose gradually, several posts  carrying economic/statistical  functions were created. Although  Rule 8 provided that not less than 75 per cent of  the vacancies  in Grade  IV should  be filled up by direct recruitment  through an  open competitive examination to be  held be  the Union  Public Service  Commission in the manner prescribed in Schedule II to the Rules and lt further provided that  not more  than  25  per  cent  posts  of  the vacancies in  that Grade  should be filled by selection from among officers  serving in  the offices under the Government in Economic/  Statistical posts  recognized for that purpose by the  Controlling  Authority,  no  direct  recruitment  we resorted to  till about  the year  1968. In the meanwhile, a large number  of persons  in the feeder posts were appointed to the  posts in  Grade IV  from time  to time from the year 1962 onwards  although the orders promoting them stated that they had  been promoted  only temporarily. Undisputedly, all those promotees  have been  holding those posts continuously till now  without being  reverted to  the feeder  posts from which they  had been  promoted. Some  have been retried from those posts.      Thus the  prescribed quota  of appointment from the two different  sources   was  not   maintained  right  from  the commencement of  the constitution  of  the  Services.  After completion of  the initial  constitution of the two services under Rule  7, Rule  7A was  added and subsequently amended. Rule   7A   made   special   provision   regarding   certain departmental candidates  who were  to be absorbed in the two Services.      Between the  years 1964  to 1984  in all there were 435 vacancies for  direct recruitment  in  the  Indian  Economic Service out of which only 342 posts were filled up by direct recruitment. Out of 93 remaining unfilled posts most of them were held  all along  by persons  promoted from  the  feeder posts. In  the Indian Statistical Service as against a total of 303 vacancies meant for direct recruits between the years 1964 to  1984 only  275 direct  recruits were appointed. The remaining 213 unfilled posts  were held  by the & departmental candidates. It was  alleged that many of the departmental candidates had been allowed  to hold  posts including  Grade IV  of the two Services purely on ad hoc and ex gratia basis.      Earlier certain  persons holding  posts in  Grade IV of these two  services had filed Writ Petition under Article 32 seeking direction/order to the Union of India to confirm and regularise the  petitioners in the posts held by them as and from the  dates when they had become due for confirmation or regularisation  in   accordance  with  the  Indian  Economic Services Rules  1961 or the Indian Statistical Service Rules 1961 and to consider them for all future promotions when due on the  basis of  such seniority.  This Court  on February 1 1984 directed  the Union  of India  to fill  up, within four weeks,  the   vacancies  available   to   the   departmental

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candidates under Rule 8 (1)(a)(ii) with effect from the date from which the petitioners become entitled to be promoted on regular basis,  that  their  seniority  will  be  determined according to  Rules and  that rotation system will not apply under the existing Rules.      On May  1, 1984, after expiry of the extended time, the respondent -  Union of  India filed  two sets  of  seniority lists in  respect of  the two  services, namely,  (i)  lists based on  the principle of rotation, and (11) lists based on Rule  9C   of  the  Rules.  Since  the  lists  were  to  the disadvantage of  the departmental prouotees, the Court while declining to  endorse either  of  the  two  seniority  lists directed the  respondent-Union to  implement the order dated February l,  1984 on  or before  30th November, 1984. In the meanwhile the  petitioners filed  a petition  for initiating contempt proceedings  against the  respondent-Union of India which  was   resisted  by  the  respondents  Certain  direct recruits also  intervened and  wanted  to  be  heard  before disposal of  the contempt application. Opportunity was given to all the parties to make their submissions.      Disposing of the petition, ^      HELD: 1. Having regard to the facts of the case and the events that  have followed the order passed by this Court on February 1,  1984, no  action for contempt against the Union Government or any of its officers for not obeying the orders of this Court would be taken. [221 B-C] 214      2. The  Union  Government  is  directed  to  treat  all persons who  have been promoted to several posts in Grade (n ) in  Indian Economic Service and Indian Statistical Service contrary to  the Rules  till now  as having  been  regularly appointed to  those posts  in Grade (IV) under Rule 8(1) (a) (ii) and assign them seniority in the cadre with effect from the dates  from which  they are  continuously officiating in those posts.  Even those promotees who have been selected in 1970, 1982 and 1984, shall be assigned seniority with effect from  the   date  on   which  they  commenced  to  officiate continuously in  the posts  prior to  their  selection.  For purposes of  seniority the dates of their selection shall be ignored. The  direct recruits  shall be given seniority with effect from  the date  on which their names were recommended by the  Commission for appointment to such grade or posts as provided in  clause (a) of Rule 9-C. A seniority list of all promotees and direct recruits shall be prepared on the above basis treating  the promotees as full members of the Service with effect  from the dates from which they are continuously officiating in the posts. This direction shall be applicable only to  officers who  have been  promoted till  now,  which means that  rotation system will not be applicable under the Rules, as  they exist  now. All  appointments shall  be made hereafter in accordance with the Rules, and the seniority of all the officers to be appointed hereafter shall be governed by Rule 9-C. [237 D-H: 238 A]      3. If  as a  result of the preparation of the seniority list as aforesaid any officer is likely to be reverted, such officer shall  not be reverted. He shall be continued in the higher  post   which  he   is  now  holding  by  creating  a supernumerary post  to accommodate  him.  Further  promotion shall be  given to  him when  it becomes  due as per the new seniority list  to be  prepared. There  shall be a review of all the  promotions made  so far  from Grade  (IV) to higher posts in the light of the new seniority list. [238 B-D]      P.S. Mahal  & Ors.  v. Union  of India  & Ors. [1984] 3 S.C.R. 847 followed.

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    4. When  an officer  has worked  for a  long period for nearly 15  to 20 years in a post and had never been reverted it cannot be held that the officer’s continuous officiation 215 was a  mere temporary  or local or stop gap arrangement even though the  order of  appointment  may  state  so.  In  such circumstances the  entire period  of officiation  has to  be counted for seniority. Any other view would be arbitrary and violative of  Articles 14  and 16(1)  because the  temporary service in  the post  in question  is not for a short period intended to  meet some  emergent or unforseen circumstances. [236 C-E]      In the circumstances of the instant case, clause (b) of rule 9-C  of the  Rules which  deals with  the  question  of seniority  of   promotees  becomes   irrelevant  as  regards promotees who  have been holding the posts from a long time. [236 E]      5. It  is permissible  for the  Government  to  recruit persons from  different sources  to constitute a service. It is also  open to  it to  prescribe a  quota for each source. Rules of recruitment framed on the above lines are perfectly legitimate and  quite consistent  with Articles 14 and 16 of the Constitution.  When the  Rules of  recruitment prescribe recruitment from  different sources  in accordance  with the specified quota  the Government  is bound to appoint persons to the  Service concerned  in accordance  with the Rules. me seniority of  persons recruited  from different sources will have to be regulated accordingly. [230 C-E]      In the  instant case,  the Government  had made violent departure from  the Rules  of  recruitment  by  deliberately allowing those  who were appointed contrary to Rules to hold the posts continuously over a period of long time. [230 E-F]      6. The  petitioners were  not promoted by following the actual procedure  prescribed under  rule 8(1)(a)(ii) but the fact remains  that they  have been working in posts included in Grade  IV from  the date  on which they were appointed to these posts.  The appointments  are made  in the name of the President by  the competent  authority. They  are being paid all along the salary and allowances payable to incumbents of such posts. They have not been asked to go back to the posts from which they were promoted at any time since the dates of their appointment.  me orders  of promotion  issued in  some cases show  that they  are promoted  in the  direct line  of their  promotion.   It  was   expressly  admitted  that  the petitioners have  been allowed  to hold  posts  included  in Grade IV of the said 216 Services, though on an ad hoc basis. Therefore, it cannot be said that the petitioners are not holding the posts in Grade IV of  the two  Services. Neither  the Government has issued orders of reversion to their former posts nor has anybody so far questioned  the right  of the petitioners to continue in the posts  which they are now holding. It would be unjust to hold at  this distance  of time that the petitioners are not holding the  posts in  Grade IV. However, it is not the case that whenever  a person  is  appointed  in  a  post  without following the Rules prescribed for appointment to that post, he should be treated as a person regularly appointed to that post. Such  a person may be reverted from that post. [231 B- H; 232 A]      In the instant case, where persons have been allowed to function in  higher posts  for  15  to  20  years  with  due deliberation it  would be certainly unjust to hold that they have no  sort of  claim to  such posts and could be reverted unceremoniously or  treated as  persons not belonging to the

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Service at all, particularly where the Government is endowed with the  power to  relax the Rules to avoid unjust results. The Government  has also  not expressed its unwillingness to continue them  in  the  said  posts.  The  other  contesting respondents have  also not urged that the petitioners should be sent  out of  the said posts. There is no impediment even under the  Rules to treat the petitioners and others who are similarly situated as persons duly appointed to the posts in Grade IV because of the enabling provision contained in Rule 16. [232 B-E]      7. If  there is  enormous departure  from the  Rules of recruitment in  making appointments  over several  years, it should be  presumed that the excess appointment by promotion had been made in relaxation of the Rules when power to relax the Rules is available. [233 C-D]      A.Janardhana v.  Union of  India & Ors. [1983] 2 S.C.R. 936; O.P.  Singla &  Anr. v.  Union of India & Ors. [1985] 1 S.C.R. 351;  G.S. Lamba  & Ors.  v. Union  of India  &  Ors. [1985] 3  S.C.R. 431;  D.B. Nim,  I.P.S. v.  Union of  India [1967] 2 S.C.R. 323 followed.      S.B. Patwardhan & Ors. etc. etc. v. State of Maharastra JUDGMENT: 217 State of  Bihar &  Ors. [1980]  3 S.C.R.  450; Baleshwar Das Ors. etc.  v. State of U.P. 7 Ors. etc. [1981] 1 S.C.R. 449; P.S. Mahal & Ors. v. Union of India & Ors. [1984] 3 S.C.R. 847; Pran  Krishna Goswami  & Ors.  v. State  of West Bengal Ors. [1985]  Supp. S.C.C. 221; D.K. Mitra & Ors. v. Union of India &  Ors. [1985] Supp. S.C.C. 243 referred to. Karam Pal Ors. etc.  v. Union  of India  & Ors.  [1985] 3  S.C.R.  271 distinguished.      8. By  sticking to  the quota  rule as  found  in  rule 8(1)(a),  enormous   prejudice  would   be  caused   to  the petitioners and  others who  are  similarly  situated,  even though their  appointments  have  been  made  by  deliberate deviation from  the rules.  The just solution to it would be to treat  the petitioners  as persons  duly appointed to the Services with  effect from  the  date  on  which  they  were promoted to the Grade IV posts. [235 G-H; 236 B]

&      ORIGINAL JURISDICTION: Civil Miscellaneous Petition No.      2604 of 1985.                              IN      Writ Petition No. 1595 of 1979.      (Under Article 32 of the Constitution of India.)      Petitioner No. 1 in person.      P.P.  Rao,   Uma  Dutta  and  Miss  C.K.  Suchitra  for Petitioner Nos. 2 to 25.      Govinda Mukhoty and P.K. Gupta for the Intervener.      R.K.  Garg,   R.K.  Jain   and  Guptha   Jain  for  the Respondents.      F.S. Nariman,  A.K. Ganguli,  R.D.  Agarwala  and  C.V. Subba Rao for the Respondents. (Union of India)      The Judgment of the Court was delivered by 218      VENKATARAMIAH,  J.   The  perennial  dispute  regarding seniority between direct recruits and promotees which exists in Almost  all the  departments of Government has not spared the Indian  Economic  Service  and  the  Indian  Statistical Service with  which we  are concerned  in this case. This is the second  phase of the battle which is being waged in this Court. Earlier certain persons who had been holding posts in

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Grade IV  of these  two Services had filed Writ Petition No. 1595 of  1979 under  Article 32 of the Constitution of India praying for  a writ,  direction or  order in  the nature  of mandamus  directing   the  Union  of  India  to  confirm  or regularise the  petitioners in the posts held by them as and from the  dates when  they became  due for  confirmation  or regularisation  in   accordance  with  the  Indian  Economic Service Rules, 1961 or the Indian Statistical Service Rules, 1961 and to consider them for all future promotions when due on the  basis of such seniority. The said petition was filed in a  representative capacity  with the  leave of  the Court under Order  I Rule  8 C.P.C.  A few  officers who  had been recruited as direct recruits to the posts in Grade IV in the said departments were impleaded as respondents and they were sued in  a representative capacity as representing all other direct recruits  who were  likely  to  be  affected  by  the decision. After the above case was heard, the Court passed a short order on February 1, 1984 which reads thus :           "We are  not able  to understand why the vacancies           available to  the  departmental  candidates  under           Rule 8(ii)  of  the  Indian  Economic  and  Indian           Statistical Services  Rules, 1961,  have not  been           filled up  on regular  basis. We find that some of           the  departmental  candidates  (petitioners)  have           been holding the promotional posts on ad hoc basis           for  several   years.  mere   appears  to   be  no           justification for  keeping them  ’ad hoc’ so long.           We, therefore,  issue a Writ of Mandamus directing           the Union  of India  to fill up, within four weeks           from  today,   the  vacancies   available  to  the           departmental  candidates  under  Rule  8(ii)  with           effect from  the date  from which  the petitioners           became entitled  to be  promoted on regular basis.           Their seniority  will be  determined according  to           Rules. We  wish to  make it clear that there is no           question of  any  rotation  system  being  applied           under the Rules, as they exist now. The 219           writ petition is disposed of in these terms. There           will be no order as to costs."           (Rule 8(ii) has to be read as Rule 8(1)(a)(ii))      The Union  of India,  as can be seen from the order set out above,  was  directed  to  comply  with  the  directions contained therein  within four  weeks from  the date  of the order. On  the expiry  of four  weeks,  stipulated  by  this Court, the Union of India filed an application for extension of time  to comply  with the  directions  contained  therein fully. Time  was extended  by the Court till April 30, 1984. On May 1, 1984 the Union of India filed before the Court two sets of seniority lists in respect of the above two Services namely, lists  based on  the principle of rotation and lists based on  Rule 9-C  of the  Indian  Economic  Service/Indian Statistical Service  Rules. Since  on a  perusal of the said lists it  was  found  that  the  position  of  some  of  the departmental promotees  who had  already put  in  nearly  15 years of  service in  Grade IV was worse than V the position in which  they were  before the  writ petition was filed and were facing imminent threat of reversion to the feeder posts from which  they had  been promoted  several years  ago, the Court directed  the petition  to come  up for hearing before the Court  on  its  re-opening  after  summer  vacation  and directed that  status quo  should be maintained in the mean- while. Then  on July  24, 1984  the Court while declining to endorse either of the two seniority lists directed the Union of India to implement the order dated February 1, 1984 on or

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before 30th November, 1984. In the meanwhile the petitioners filed  Civil   Miscellaneous  Petition   No.  2604  of  1985 complaining that  the Union  of India  had failed  to comply with the  order made by this Court and that action should be taken  for   contempt  against   it.  While   opposing   the application for contempt, on behalf of the Union of India it was stated in the course of the affidavit sworn by Shri P.L. Sakarwal, Deputy  Secretary, Department of Economic Affairs, New Delhi thus :           "23. In  view of  the submissions  made above this           Respondent would  urge that  the directions of the           Hon’ble Court  dated 1.2.84  in the  matter of (i)           filling the vacancies under Rule 8(ii) and (ii) to           fix the  seniority according  to Rules without the           application of rotation system, have been complied           with bona fide and in a good faith. Rule 8(ii) of 220           the IES Rules/ISS Rules provides for the quota for           the departmental  promotees and also the manner in           which the  Select List  for promotion  by  a  duly           constituted DPC  presides over by a Member of UPSC           has to  be drawn.  All the  vacancies available to           the departmental candidates under Rule 8(ii) up to           the end of 1983 have already been given to them by           issuance of Select Lists drawn from time to time.           Action is  in process  to prepare  further  Select           List in  respect of the vacancies available to the           officers till the end of the year 1984. As regards           seniority, the  Hon’ble Court  had ordered  to fix           the seniority  according to  the Rules and without           the  application   of  the  rotation  system.  The           revised   seniority   lists   prepared   by   this           Respondent and finalised after inviting objections           etc. from  the concerned officers have been framed           according to  the  Rules  i.e.  in  terms  of  the           provisions of  Rule 9-C of the IES Rules/ISS Rules           and without  application of  the rotation  system.           This  Respondent,   would,  therefore,  urge  with           respect ad  all humility that he has complied with           the directions  of the Hon’ble Court bona fide ant           in good  faith. However,  If there  18 any slip on           the part  of this  Respondent in  carrying out the           directions of this Hon’ble Court of if the Hon’ble           Court considers  that the  orders should have been           executed in  any  other  manner,  this  Respondent           would tender  unconditional apology  ant  will  be           duty bound  to obey  ant  implement,  such  orders           directions as  this Hon’ble  Court may teem fit or           pleaset to issue in the circumstance of the case."      In  the   meanwhile  certain   direct   recruits   also intervened in  the course of the said petition ant requested that they should be heart before any order was passed by the Court on the contempt application. While the order passed by the  Court   on  February   1,  1984  did  not  require  any clarification at  all, since  the  parties  tried  to  place different interpretation on lt, prayer was mate by the Union Government as stated above seeking further clarifications in the light  of certain  recent  decisions  rendered  by  this Court, we  gave opportunity to all the parties to make their submissions once again. Availing 221 themselves of  the opportunity  given by  the Court  learned counsel for  the promotees  and  the  direct  recruits  have virtually reargued the matter. It should be stated here that no specific  stand was  taken on  this occasion by the Union

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Government except  bringing to  the notice  of the Court the relevant provisions  of law.  On its behalf it was submitted very  fairly  by  Shri  F.S.  Nariman,  that  there  was  no intention on  the part  of the  Government  or  any  of  its officers to  flout the order of the Court passed earlier and that if  the Court  found that there has been any mistake in the preparation of the lists of seniority, those lists would be prepared afresh in the light of any direction that may be given by  the Court  in the  course  of  these  proceedings. Having regard  to the  facts of the case and the events that have followed  the order passed by this Court on February 1, 1984, we  do not  feel called  upon to  take any  action for contempts  against  the  Union  Government  or  any  of  its officers for  not obeying the orders of this Court. We have, however, found  it necessary to consider the matter again in the light  of the  submissions made by the parties and issue fresh directions in this case. We feel that a detailed order is also called for in the circumstances of the case.      The Indian  Economic Service Rules, 1961 and the Indian Statistical Service  Rules, 1961 (hereinafter referred to as ’the Rules’) which are more or less identical with regard to the  questions  involved  in  this  case  were  notified  on November 1,  1961 and  these Services  were constituted with effect from  that date by encadering numerous posts carrying economic and statistical functions in the various ministries of the  Government of  India. These  Services were  meant to comprise   a    pool   of    officers   having   appropriate qualifications  for   performing  the   aforesaid  technical functions involved  in various  posts. me  strength  of  the various grades of the Indian Economic Service at the initial constitution of  the Service,  i.e., on November 1, 1961 was Grade 1  - 15,  Grade II - 15, Grade III - 95 and Grade IV - 199 -  Total 324 posts. me strength of the various grades of the Indian  Statistical Service  at the initial constitution of the  Service, i.e.,  on November 1, 1961 was Grade I - 8, Grade II-  7, Grade  III -  54 and  Grade IV - 116 Total 185 posts.      The officers  of Grade  I to Grade IV are classified as Class-I Officers.  The authorised permanent strength of each of 222 the Services  is to  be fixed  by the  Controlling Authority with the  guidance of  the Ministry of Finance in accordance with the provisions of the Rules. It is required to be based on the following principles:           1) it  shall be  assumed that  80 per  cent of the           total number of semi-permanent posts are likely to           be continued  indefinitely in one form or another,           and  shall   be  provided  for  in  the  permanent           strength; and           2) all  the purely temporary posts and 20 per cent           of the  semi-permanent posts shall be excluded for           purposes of determining the permanent strength.      The Ministry  of Home  Affiars (Department of Personnel and Administrative  Reforms) advised by a Board known as the Indian Economic  Statistical Service  Board is designated as the Controlling Authority under rule 6 of the Rules. Initial constitution of both the Services was required to be done in accordance with  rule 7.  & der  that Rule  the Union Public Service Commission  was required  to constitute  a Selection Committee with  a Chairman  or a Member of the commission as President, not more than two representatives of the partici- pating Ministries  and the  Chief Economic  Adviser  in  the Ministry of  Finance (Department  of  Economic  Affairs)  to deter mine  the suitability  of departmental  candidates for

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appointment to  the different grades and to prepare an order of preference for each grade for the initial constitution of the Service.  On  receipt  of  the  Committee’s  report  the Commission was  required to  forward its  recommendations to the Government  and such  recommendations  might  include  a recommendation  that   a  person   considered  suitable  for appointment to  a grade  might, if  a sufficient  number  of vacancies were  not available in that grade, be appointed to a lower  grade. me  departmental d  i  dates  who  were  not absorbed at  the initial constitution of the Service were to continue to  work as on the date of the initial constitution and  were  given  the  opportunity  to  apply  (and  getting selected if  they were found suitable) for future vacancies. We are informed that the notifications regarding the initial constitution of these two Services were issued by the middle of February  1, 1964  with effect  from February  15,  1964. Future maintenance of these two Services is governed by 223 rule 8 of the Rules. Initially rule 8, which is relevant for the purposes of this case read as follows :           "8.(1) Future  maintenance of  the Service - after           the initial  constitution of  the Service has been           completed   by    appointment   of    departmental           candidates or otherwise, vacancies shall be filled           as hereinafter provided.           (a) Grade IV - Assistant Director.           (i) Not  less than 75 per cent of the vacancies in           this grade  shall be  filled by direct recruitment           through an open competitive examination to be held           by the  Commission in  the  manner  prescribed  in           Schedule II. Provided that 25 per cent of the said           quota for  direct recruitment may be set apart for           a maximum  period of  5 years  for  absorption  of           officers considered  suitable for  appointment  at           the initial  constitution of  the Service  but who           could not  be  so  appointed  in  the  absence  of           vacancies.           (ii) Not more than 25 per cent of the vacancies in           this grade shall be filled by selection from among           officers serving  in offices  under the Government           in Economic  posts recognised  for this purpose by           the Controlling Authority who shall prepare a list           of such posts in consultation with the commission.           The Controlling  Authority  may,  in  consultation           with the  Commission, add  to or  modify the  list           from time to time. The selection will be made from           amongst those  who have completed at least 4 years           of service  in those  posts on  the basis of merit           with due  regard to  seniority by  the Controlling           Authority     on     the     advice     of     the           Commission.......... "           Rule 8(1)(a) now reads thus :-           "8.(1) Future  maintenance of  the service;  after           the initial  constitution of  the service had been           completed   by    appointment   of    departmental           candidates or  otherwise and  after promotions  in           accordance with sub-rule (2A) of Rule 7 have taken           place, vacancies  shall be  filled as  hereinafter           provided. 224           (a) Grade IV - Assistant Director.           (i) Not  less than 75 per cent of the vacancies in           this grade  shall be  filled by direct recruitment           through an open competitive examination to be held           by the  Commission in  the  manner  prescribed  in

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         Schedule II. Provided that 25 per cent of the said           quota for  direct recruitment may be set apart for           a maximum  period of  5 years  for  absorption  of           officers considered  suitable for  appointment  at           the initial  constitution of  the service  but who           could not  be  so  appointed  in  the  absence  of           vacancies.           (ii) Not more than 25 per cent of the vacancies in           this grade shall be filled by selection from among           officers serving  in offices  under the Government           in Economic  posts recognised  for this purpose by           the Controlling Authority who shall prepare a list           of such posts in consultation with the Commission.           The Controlling  Authority  may,  in  consultation           with the  Commission, add  to or  modify the  list           from time to time. The selection will be made from           amongst those  who have completed at least 4 years           of service  on a  regular basis  in these posts on           the basis of merit with due regard to seniority by           the Controlling  Authority on  the advice  of  the           Commission.           Provided that  if any  junior person  in an office           under the Government is eligible and is considered           for  selection   for  appointment   against  these           vacancies, all  persons  senior  to  him  in  that           office shall also be so considered notwithstanding           that they may not have rendered 4 years of service           on a regular basis in their posts."      After the  initial constitution or the two Services was completed it  was found  that a  number  of  posts  carrying Economic/Statistical functions  could not  be considered for inclusion  in   the   officers’   Grades   due   either   to misunderstanding or  to inadvertence. Further as the process of formation  of the  Indian Economic Service and the Indian Statistical Service  was prolonged  for number  of years and the  need   for  appointing   more  officers   in  the  said Departments during that long period 225 also    arose     gradually    several     posts    carrying economic/statistical functions were created. Although rule 8 provided that  not less than 75 per cent of the vacancies in Grade IV  should be  filled up by direct recruitment through an open  competitive examination  to be  held by  the  Union Public  Service  Commission  in  the  manner  prescribed  in Schedule II  to the Rules and further provided that not more than 25 per cent posts of the vacancies in that grade should be filled  by selection  from among  officers serving in The offices under  the Government  in Economic/Statistical posts recognised for that purpose by the Controlling Authority, no direct recruitment was resorted to till about the year 1968. In the  meanwhile a  large number  of persons  in the feeder posts were  appointed to  the posts in Grade IV from time to time  from   the  year  1962  onwards  although  the  orders promoting them  stated that  they  had  been  promoted  only temporarily. It  is not  disputed that  all those  promotees have been  holding those posts continuously till now without being reverted  to the feeder posts from which they had been promoted. Some  have retired  from those  posts on attaining the age of superannuation.      We shall  reproduce  below  one  of  the  notifications issued in  connection with  the promotion  to the  posts  in Grade IV  of such officers, some of whom are the petitioners in this petition. It reads thus :            "GOVERNMENT OF INDIA            PLANNING COMMISSION

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                   Yojana Bhawan, Parliament Street            New Delhi-1, the 20th/23rd November ’65                         NOTIFICATION      No.F.8(10)/65-ADM.I:  The   President  is   pleased  to appoint  the   following  Economic  Investigators  Grade  I, Planning Commission,  as Research Officers in the Commission in a  temporary capacity  with effect  from the 6th November 1965 (forenoon), and until further order :-           Shri K.V. Vishwanathan           Shri S.N. Padru           Shri C.L. Kapur 226           Smt. K. Passi           Shri Narendra Chaddha           Shri R.N. Mokhey           Shri N. Srinivasan           Shri K. Suryanarayana           Shri P.N. Radhakrishnan           Shri B.R. Kharbanda           Shri Kamla Prasad           Shri M.M. Gupta           Shri S.P. Kumar                                              Sd/-                                         (N.S. Gidwani)           (Deputy Secretary to the Government of India)           .............................................           All these  officers  excepting  Shri  P.N.  Radha-           Krishnan are  either permanent  or quasi-permanent           in the grade of Economic Investigators. Shri Radha           Krishnan is quasi Permanent in the grade of Senior           Computor. The  promotion of  all is  in the direct           line.           ...........................................      In another  order of  promotion issued  while promoting another officer by name Jagdish Chandra on November 21, 1966 it was  mentioned that his promotion to the post of Research Officer was  in direct  line of  Economic Investigator Grade I/II. It  should be stated here that although rule 8 (1) (a) provided that  not less than 75 per cent of the vacancies in Grade IV  of the  two Services should be filled up by direct recruitment through  an open  competitive examination  to be held by  the Commission in the manner prescribed in Schedule II to  the Rules  and that  not more than 25 per cent of the vacancies in  the Grade  could be  filled up  by a selection from among  officers serving in offices under the Government in Economic/Statistical posts recognised for this purpose by the  Controlling   Authority,  the   prescribed   quota   of appointment from  the two  different  sources,  referred  to above, was not maintained right from the commencement of the Constitution of the Services. me initial constitution of the two Services  was completed  under rule  7 of the Rules with effect  from   February  15,   1964  as  mentioned  earlier. Thereafter rule 7A was added. 227 That rule  was added  by a  notification dated  December 24, 1966 and  it has been amended subsequently by a notification dated February  12, 1972.  Rule 7A  made  special  provision regarding certain  departmental candidates  who were  to  be absorbed   in   the   two   Services.   It   provided   that notwithstanding anything  contained in  rule 8 of the Rules, the Controlling  Authority on the advice of the Board should constitute  a   Selection  Committee   for  the  purpose  of appointing officers  who were departmental candidates to the Services in  question. A  departmental candidate who was not selected for appointment for any grade in the Services could

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continue to  hold the  post which  he was  holding then  and might be  considered by  the Controlling  Authority  on  the advice of  the Board  for appointment  to the service at the subsequent  stage   or  stages   in  consultation  with  the Commission.  It   further  provided  that  any  departmental candidate, referred  to in  sub-rule (1)  of rule 7A who did not on  a selection to any Grade in the Service desire to be absorbed tn the service might continue to hold the post held by him  immediately before  the selection  as if  he had not been selected.  The validity  of rule  7A was  questioned by some of  the direct recruits, who were appointed in the year 1968 in  the High  Court of  Delhi by  a Writ  Petition.  We understand that  the said writ petition has been transferred to the  file of  the Central Administrative Tribunal and the said writ  petition is  still pending.  We are not concerned here with  the  merits  of  the  contentions  urged  by  the contesting parties in those proceedings. We are concerned in this case  only with  the question  of seniority  as between direct recruits and promotees.      From the  statements annexed  to the  counter-affidavit filed by  Shri V. Subramanian, Director in the Department of Economic Affairs,  it is  seen that  in the  Indian Economic Service there  were 3  vacancies for  direct recruits in the year 1964,  18 in  the year 1965, 80 in the year 1966 and 12 in the  year 1967.  Nobody was  recruited directly  to those posts during  those years.  In the  year 1968  there were 11 vacancies for direct recruits but 32 were recruited directly during that  year. In 1969 there were 6 vacancies for direct recruits and  31 were  recruited,  in  1970  there  were  33 vacancies  for  direct  recruits,  in  1971  there  were  12 vacancies  for  direct  recruits,  in  1973  there  were  25 vacancies  for  direct  recruits,  ’n  1974  there  were  20 vacancies for  direct recruits  and in  1975 there  were  11 vacancies for direct recruits. By the year 1984 in all 228 there were  435 vacancies  for direct  recruits out of which only 342  posts were filled up by direct recruitment. In all 93 posts  intended for direct recruits remained unfilled and most of  them were  held all  along by  persons who had been promoted from  the feeder  posts. The position in the Indian Statistical Service  was more or less the same. As against a total of 303 vacancies meant for direct recruits between the years 1964 and 1984 only 275 direct recruits were appointed. In this  department also  the posts  which remained unfilled had  been   held  by   the  persons  who  were  departmental candidates. It  is alleged in the counter-affidavit filed on behalf of  the Union  of India of which the deponent is Shri P.G. Lele,  Deputy Secretary  in the Department of Personnel and Administrative  Reforms that  many of  the  departmental candidates had been allowed to hold posts including in Grade IV of  the aforesaid Services purely on ad hoc and ex gratia basis. The  relevant part  of the counter-affidavit is to be found in paragraphs 21 to 24 thereof. It is unfortunate that even though the promotees have been discharging their duties to the  best of  their  ability  and  receiving  salary  and allowances from  the Government for the services rendered by them, it  is alleged  in the  course of  the  said  counter- affidavit that  what was  being paid  to them  was by way of grace.  This   statement  adds  insult  to  injury.  If  the Government felt  that they  were not  competent to discharge their duties  and they had not been appointed permanently to the posts  held by them, it was open to it to revert them to their posts  from which  they had  been promoted  leaving it open to  them to  question the orders of reversion in Court. The Government  was  in  need  of  their  services  and  the

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petitioners have  been holding  these posts for nearly 15 to 20 years.  It is  not fair  to say  at this distance of time that the  Government was only keeping them in their posts as a matter  of grace.  Be that  as it may, it is seen that the Departmental Promotion  Committee met  only  thrice  between 1965 and  1584, i.e.  1970, 1972  and 1984 although under te rules and  instructions issued  by the Central Government on the advice  of the  Union  Public  Service  Commission,  the Departmental Promotion  Committee had to meet annually. When the Departmental  Promotion Committee  met in the year 1970, it prepared  a select list consisting of 33 names to fill 33 vacancies only  in Grade  IV  from  amongst  those  who  had already been  promoted to  Grade IV  temporarily and at that time only  officers who  had completed four years of regular service in the feeder posts as 229 on  December   31,  1966   were  considered   although   the Departmental Promotion  Committee was  meeting in  the  year 1970. If  it had taken into consideration the service put in by the  departmental candidates  till the  date on  which it took up  their cases  for consideration  for promotion  many others who  had been  promoted on a temporary basis to Grade IV would have become eligible for consideration. By omitting to take the cases of those persons into consideration on the ground that  they had  not completed  four years  of regular service in  the feeder  posts as  on December  31, 1966  the Departmental Promotion  Committee violated  Articles 14  and 16(1) of  the Constitution of India. It is further seen that the    Departmental    Promotion    Committee    made    its recommendations on  the basis  of the records of service and seniority of  each of  the departmental candidate. It is not known whether  any of  them were  found to  be unfit  on the basis of  their record of service only. It is, however, seen that the  select list  contained only  33 names  because the Departmental Promotion  Committee felt  that they  were  the only vacancies for which it could make recommendations under rule  8(1)(a)(ii)   of   the   Rules.   If   it   had   made recommendations to  the Government  in respect  of  all  the vacancies which  were available  then, perhaps, the names of some others  who were  left out  would have been included in the select  list. Then  after an  interval of  12 years  the Departmental Promotion Committee met in the year 1982. There again the  same procedure  was followed and the next meeting of the  Departmental Promotion Committee, as already stated, was in  1984. For  no  fault  of  the  petitioners  and  the officers similarly  situated their  cases for promotion were not considered every year and even those who have been found fit by  the Departmental  Promotion Committee  for promotion had to  wait for  nearly 15  years to get into the ’regular’ service through  a select  list prepared by the Departmental Promotion Committee.      In, compliance  with our  direction the  Government has produced before  the Court  two lists  showing the  names of officers who  were appointed to Grade IV posts of the Indian Economic/Statistical Service  either regularly  or on ad hoc basis arranged  according to  the dates from which they have been officiating in these posts continuously.      large number  of decisions were cited at the Bar by the learned counsel for the parties. Some of them are S.B. 230      Patwarthana &  Ors. etc. etc. v. State of Maharashtra & Ors. [1977]-3 S.C.R.  775, Rajendra  Narain Singh  & Ors. v. State of  Bihar & Ors. [1980] 3 S.C.R. 450, Baleshwar Dass & Ors. etc. v. State  of U.P. & Ors. etc. [1981] 1 S.C.R. 449, A. Janardhana  v. Union of India & Ors. [1983] 2 S.C.R. 936,

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P.S. Mahal  & Ors.  v. Union of India & Ors. [1984] 3 S.C.R. 847, O.P. Singla &  Anr. v.  Union of  India & Ors. [1985] 1 S.C.R. 351,  Karam Pal  & Ors. etc. v. Union of India & Ors. [1985] 3  S.C.R. 271,  G.S. Lamba & Ors. v. Union of India & Ors. [1985]  3 S.C.R.  431, Pran  Krishoa Goswami  & Ors. v. State of West Bengal & Ors. [1985] Supp. S.C.C. 221 and D.K. Mitra &  Ors. v.  Union of  India & Ors. [1985] Supp. S.C.C. 243. We  have carefully  considered all  the decisions cited before us.      It is  now well-settled  that it is permissible for the Government to  recruit persons  from  different  sources  to constitute a  service. It  is also open to it to prescribe a quota for  each source.  Rules of  recruitment framed on the above lines  are perfectly  legitimate and  quite consistent with Articles 14 and 16 of the Constitution. It is also true that when  the Rules  of recruitment  prescribe  recruitment from different  Services in  accordance with  the  specified quota the  Government is  bound to  appoint persons  to  the Service concern  ed in  accordance with  the said Rules. The seniority of  persons recruited  from different sources will have to  be regulated  accordingly. So  far there  can be no controversy. But  we are faced in this case with the problem of resolving  conflicts which  have arisen  on account  of a violent departure  made by  the Government from the Rules of recruitment by allowing those who were appointed contrary to the Rules  to hold the posts continuously over a long period of time. The question is whether after such a long period it is open  to the  Government to  place them in seniority at a place lower than the place held by persons who were directly recruited after they had been promoted, and whether it would not violate  Articles 14  and 16  of the Constitution if the Government is  allowed to do so. Promotions of officers have been made  in this  case deliberately and in vacancies which have lasted  for a long time. A letter dated August 11, 1978 written by  Shri S.D.  Patil, Minister  of  State  for  Home Affairs, Personnel  Department to  Shri Ganga  Bhakt  Singh, Member  of  Parliament  substantiates  the  conclusion.  The relevant part of the letter reads :           "Government resorted to making ad-hoc appointments           as it was separately considering proposals to re- 231           Organise Grade  IV of  the two  Services.  Pending           such reorganisation  Govt. has  taken a deliberate           decision to  restrict direct  recruitment for  the           present. It  is, therefore not correct to say that           ad-hoc  appointments   have  been   made  due   to           nonavailability of direct recruits. I may add that           but for  his  deliberate  decision,  most  of  the           officers holding  ad-hoc posts  in Grade  IV would           have continued  to stagnate  in the lower posts of           Investigators."      At one  stage it was argued before us on behalf of some of the  respondents that  the petitioners  who have not been appointed in  accordance with  rule 8(1)(a)(ii) could not be treated as  members of the Indian Economic Service or of the Indian Statistical  Service at  all and  hence there  was no question of determining the question to seniority as between the petitioners  and the  direct recruits. This argument has got to be rejected. It is true that the petitioners were not promoted ay  following the actual procedure prescribed under rule 8(1)(a)(ii)  but the  fact remains  that they have been working in posts included in Grade IV from the date of which they were  appointed to  these posts.  The appointments  are made  in   the  name  of  the  President  by  the  competent authority. They  have been continuously holding these posts.

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They are  being paid  all along  the salary  and  allowances payable to  incumbents of  such posts.  They have  not  been asked to  go back to the posts from which they were promoted at any time since the dates of their appointment. The orders of promotion  issued  in  some  cases  show  that  they  are promoted in  the direct  line  of  their  promotion.  It  is expressly admitted that the petitioners have been allowed to hold posts  included in  Grade IV of the aforesaid services, though on  an ad  hoc basis.  (See Para  21 of  the counter- affidavit  filed   by  Shri  P.G.  Lele,  Deputy  Secretary, Department of  Personnel and Administrative Reforms). It is, therefore, idle  to contend  that the  petitioners  are  not holding the  posts in  Grade  IV  of  the  two  Services  in question. It  is significant that neither the Government has issued orders  of reversion  to their  former posts  nor has anybody so  far questioned  the right  of the petitioners to continue in  the posts  which they are now holding. It would be unjust to hold at this distance of time that on the facts and in  the circumstances  of this  case the petitioners are not holding the posts 232 in Grade  IV. The  above contention is therefore without sub stance. But  we, however,  make it  clear that it is not our view that  whenever a  person is appointed in a post without following the Rules prescribed for appointment to that post, he should be treated as a person regularly appointed to that post. Such a person may be reverted from that post. But in a case of  the kind  before us where persons have been allowed to function  in higher  posts for  15 to  20 years  with due deliberation it  would be certainly unjust to hold that they have no  sort of  claim to  such posts and could be reverted unceremoniously or  treated as  persons not belonging to the Service at all, particularly where the Government is endowed with the  power to  relax the Rules to avoid unjust results. In the  instant case  the Government  has also not expressed its unwillingness  to continue  them in  the said posts. m e other contesting  respondents have  also not  urged that the petitioners should  be sent  out of the said posts. m e only question agitated  before us  relates to  the  seniority  as between the  petitioners and  the direct recruits and such a question can  arise only where there is no dispute regarding regarding the  entry of the officers concerned into the same Grade. In the instant case there is no impediment even under the Rules  to treat  these petitioners  and others  who  are similarly situated as persons duly appointed to the posts in Grade IV  because of the enabling provision contained in the rule 16  thereof. Rule  16 as  it stood at the relevant time read as follows :           "16. m  e Government  may relex  the provisions of           these rules  to such extent as may be necessary to           ensure satisfactory working or remove ln-equitable           results.           " Now rule 16 reads thus :           "16.  Powers   to  relex:  me  Government  may  in           consultation with  the Commission  and for reasons           to  be  recorded  in  writing  relex  any  of  the           provisions of  these rules  with  respect  to  any           class or  category of persons or posts and no such           relaxation  shall   be  given   so  as   to   have           retrospective effect.      " G.S. Lamba’s case (supra) may be carefully considered at this  stage. In  that case  this Court was concerned with the Indian  Foreign Service which was governed by the Indian Foreign Service,  Branch ’B’ (Recruitment, Cadres, Seniority and Promotion)  Rules, 1964.  The said  rules  provided  for

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recruitment  to   the  said  Service  from  three  different Services, 233 (i) direct  recruitment  by  competitive  examination,  (ii) substantive appointment  of persons  included in  the select list  promoted   on  the  basis  of  a  limited  competitive examination and  (iii) promotion  on the basis of seniority. One of  the Rules  provided that  the recruitment  should be made from  the above  sources on  the following  basis:  (i) 1/6th of the substantive vacancies to be filled in by direct recruitment, (ii)  33, 1/3%  of the  remaining  5/6  of  the vacancies to  be filled  on the  basis of results of limited competitive examinations  and (iii)  the remaining vacancies to be  filled in by promotion on the basis of seniority. The Court found  that the  direct recruitment  had rot been made for years, limited competitive examination had also not been held for  years and promotions from the select list had been made in  excess of  the  quota.  It  found  that  there  was enormous departure  from the  rules of recruitment in making appointments over  several years.  The Court was of the view that the situation in this case was similar to the situation in two  other earlier cases of this Court in A. Janarthana’s case (supra) and O.P. Singla & Anr.. (supra). The Court felt that in  the circumstances  it should  be presumed  that the excess appointment  by promotion had been made in relaxation of the  Rules since  there was  power  to  relax  the  Rules similar to  the power  under rule 16 in the Rules with which we are  concerned here.  Justifying the above view the court observed at pages 458-459 thus :           "It  was   however  contended   that  it   is  not           permissible to  infer that promotions in excess of           quota  were  given  by  relaxing  the  quota  rule           because the  posts in  Integrated Grade II and III           were  within  the  purview  of  the  Union  Public           Service Commission  and the  proviso to Rule 29(a)           mandates that  power to  relax is hedged in with a           condition that  it can  be done after consultation           with the  Commission, and there is nothing to show           that   the    Commission   was   ever   consulted.           Undoubtedly, the  proviso to  Ru e  29(a) requires           that the controlling authority cannot relax any of           the provisions  of the  rules in  respect of posts           which are  within the  purview of the Union Public           Service Commission  unless after consultation with           the Commission.  It was  submitted that nothing is           placed on  the record  by the  petitioners to show           that power to relax the quota 234           rule was  exercised after  consultation  with  the           Union Public  Service  Commission.  Assuming  that           there was  no consultation,  would the exercise of           power to  relax be  vitiated and  the appointments           made in  relaxation of  the mandatory  quota  rule           would be  ab initio  invalid. Commencing  from the           decision of  the Privy  Council in Montreal Street           Railway Company  v. Normandin AIR 1917 P.C. 142 it           is well-settled  that ’when  the provisions  of  a           statute relate to the performance of a public duty           and the  case is  such that  to hold null and void           acts done  in neglect  of  this  duty  would  work           general inconvenience  or injustice to persons who           have not  control over  those entrusted  with  the           duty and  that at  the same time would not promote           the main  object of  the Legislature,  it has been           the  practice   to  hold  such  provisions  to  be

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         directory  only,   the  neglect  of  them,  though           punishable, not  affecting the validity o the acts           done’. The  view was  expressed in  the context of           the failure  to  revise  list  of  Jurors  by  the           Sheriff according to the revised statues of Quebec           and conviction  was challenged  on the  ground  of           mistrial held  by selecting  Jurors from unrevised           lists. The  challenge failed. Coming home in State           of U.P.  v. Manbodan Lal Srivastava, [1958] S.C.R.           533   a   Constitution   Bench   of   this   Court           specifically held that where consultation with the           Public Service  Commission is provided as required           by  Art.  320(3)  (c)  of  the  Constitution  such           provisions is not mandatory and they do not confer           any rights  on public servants so that the absence           of consultation  or irregularity  In  consultation           does not  afford him  a cause of action in a court           of law.  There are  number of subsequent decisions           to which  our attention was called reiterating the           same  principle.   Therefore  assuming  there  was           failure  to   consult  the  Union  Public  Service           Commission before  exercising the  power to  relax           the mandatory quota rule and further assuming that           the posts  in Integrated  Grade IT  and  III  were           within the  purview of  the Union  Public  Service           Commission and  accepting for  the time being that           the Commission was not 235           consulted before  the power  to relax the rule was           exercised  yet  the  action  taken  would  not  be           vitiated nor would it furnish any help to Union of           India which  itself cannot  take any  advantage of           its failure  to consult  the Commission. Therefore           it  can   be  safely   stated  that  the  enormous           departure from the quota rule year to year permits           an inference that the departure was in exercise of           the power  of relaxing the quota rule conferred on           the controlling  authority. Once there is power to           relax the  mandatory quota  rule, the appointments           made in  excess of the quota from any given source           would not be illegal or invalid but would be valid           and legal  as held  by this  Court in N.K. Chauhan           and Ors.  v. State  of Gujarat,  [1977]  1  S.C.R.           1037. Therefore the promotion of the promotees was           regular and  legal both  on account of the fact it           was made  to meet  the exigencies  of  service  in           relaxation of  the mandatory  quota  rule  and  to           substantive vacancies in service.      The Court  ultimately quashed  the seniority  list  and directed the  preparation of  seniority list on the basis of length of  continuous officiation in the cadre. The facts in this case  being almost identical there is no reason why the view express  in G.S.  Lamba’s case  (supra) should  not  be adopted here also.      The continuance  of these  petitioners may be justified on the  basis of  the above  quoted rule 16 onthe assumption that the Government had relaxed the Rules and appointed them to  the   posts  in  question  to  meet  the  administrative requirements.      The enormity  of the  prejudice that  is likely  to  be caused to  the petitioners  and others  who  were  similarly situated can  be demonstrated  by setting  out the effect of sticking to  the quota  rule as  found in  rule 8(1)(a) even though there  has been  a deliberate  deviation from it. The result of  applying the  quota rule  would  be  as  follows:

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Petitioner No.1  who was promoted to Grade 17 on November 6, 1965 would  be junior  to a  direct recruit  of 1974  batch. Petitioner No.3  who was  promoted to  Grade IV on March 22, 1966 would  become junior to a direct recruit of 1979 batch. Petitioner No.6 who was promoted to 236 Grade IV  post in July 1, 1966 would become junior to direct recruits of  1982 batch.  Petitioner No. 10 who was promoted to Grade  IV on  May 18,  1968 would become junior to direct recruits of  1982 batch. Petitioners Nos. 16 to 18 and 21 to 25 would  continue to  be treated  as ad  hoc appointees and will be  junior to  every body  appointed till  now into the service as  they cannot be fitted any whf e even though they have put  in 9  to 15  years of  service in  Grade IV. These startling results  ought to  shock anybody’s conscience. The only  just   solution  to  this  problem  is  to  treat  the petitioners as  persons duly  appointed to  the Service with effect from the day on which they were promoted to the Grade IV posts.      As observed  in D.R.  Nim, I.P.S.  v.  Union  of  India [1967] 2  S.C.R. 325  when an  officer has worked for a long period as in this case for nearly fifteen to twenty years in a post  and had  never been  reverted it cannot be held that the officer’s continuous officiation was a mere temporary or local or  stop gap  arrangement even  though  the  order  of appointment may  state so.  In such circumstances the entire period of  officiation has  to be counted for seniority. Any other view  would be  arbitrary and violative of Articles 14 and 16(1)  of the Constitution because the temporary service in the  post in  question is not for a short period intended to meet  some emergent  or unforeseen  circumstances. Clause (b) of rule 9C of the Rules which deals with the question of seniority   of   promotees   becomes   irrelevant   in   the circumstances of this case as regards the promotees who have been holding the posts from a long time as stated above.      The decision  in A.  Janardhana’s case  (supra) and the decision in  O.P. Singla’s case (supra) strongly support the above view. It is necessary to refer to them in great detail since in  G.S. Lamba’s  case (supra)  the effect of the said decisions is set out very clearly.      The decision in Karam Pal’s case (supra) is not of much assistance to  the direct  recruits. In  that decision there was a specific finding that except for a period o’ two years i.e. in 1966  and 1970,  direct recruitment had been made in accordance with  the Scheme  governing  recruitment  to  the Central Secretariat  Service and  that there was substantial compliance with  the rules  of  recruitment  governing  that Service. The 237 Court observed  that in  the absence  of serious  failure in implementing the  relevant rules  there  was  no  ground  to interfere with the inter se seniority of the officers in the Grades concerned.  Hence that decision is distinguishable on facts from the present case.      We are  aware that the view we are taking may upset the inter se seniority between those promotees who were included in the Select List of 1970, 1982 and 1984 and those who were included later  on or who have not been included at all till now. The  existence of  this possibility should not deter us from adopting  a uniform  rule in  the case of all promotees and direct  recruits to  adjust the equities amongst them as regards their relative seniority in the light of the violent departure made  by the  Government both  as  regards  direct recruitments and  promotions which lt had to make every year under the  Rules. The prejudice which the promotees included

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in the  Select Lists  might suffer is marginal and has to be ignored.      Having  given   our  anxious   consideration   to   the submissions made  on behalf  of the parties and the peculiar facts present  in this  case we  feel that  the  appropriate order that  should be  passed in  this case is to direct the Union Government to treat all persons who are stated to have been promoted  in this  case to several posts in Grade IV in each of  the two  Services contrary to the Rules till now as having been  regularly appointed  to the said posts in Grade IV under  rule 8(1)(a)(ii)  and assign them seniority in the cadre with  effect  from  the  dates  from  which  they  are continuously officiating  in  the  said  posts.  Even  those promotees who  have been  selected in  1970, 1982  and  1984 shall be  assigned seniority  with effect  from the  date on which they  commenced to officiate continuously in the posts prior to  their selection.  For purposes  of  seniority  the dates of  their  selection  shall  be  ignored.  The  direct recruits shall  be given seniority with effect from the date on which  their names were recommended by the Commission for appointment to  such grade or post as provided in clause (a) of Rule  9-C of  the Rules.  A seniority  list  of  all  the promotees and  the direct  recruits shall be prepared on the above basis  treating the  promotees as  full members of the Service with  effect from  the dates  from  which  they  are continuously officiating  in the posts. This direction shall be applicable  only to  officers who have been promoted till now. This is the meaning of the direction given by the Court on February 1, 1984 which stated, 238 ’we wish  to make  it clear that there is no question of any rotation system being applied under the Rules, as they exist now.’ All appointments shall be made hereafter in accordance with the  Rules and  the seniority  of all  officers  to  be appointed hereafter  shall be  governed by  rule 9-C  of the Rules.      We are  informed that  some of the promotees and direct recruits  who  are  governed  by  this  decision  have  been promoted to higher grades. If as a result of the preparation of the  seniority list  in accordance  with the decision and the review  of the  promotions made  to higher grades any of them is  likely to  be reverted  such officer  shall not  be reverted. He  shall be continued in the higher post which he is  now   holding  by  creating  a  supernumerary  post,  if necessary to  accommodate him.  His further  promotion shall however be  given to  him when it becomes due as per the new seniority list  to be  prepared pursuant  to this  decision. There shall,  however, be a review of all promotions made so far from  Grade IV  to higher  posts in the light of the new seniority list.  If any  officer is  found entitled to be so promoted to  a higher grade he shall be given such promotion when he  would have been promoted in accordance with the new seniority list  and he  shall  be  given  all  consequential financial  benefits   flowing  therefrom.   Such  review  of promotions shall  be completed  within three  months and the consequential financial  benefits shall be paid within three months  thereafter.  In  giving  these  directions  we  have followed more  or less  the directions given in P.S. Mahal & Ors. V. Union of India & Ors. (supra).      We direct  that the  above directions shall be complied with within the period indicated above.      The petition is accordingly disposed of. A. P. J. 239

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