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PETITIONER: SH. MADAN GOPAL GARG

       Vs.

RESPONDENT: STATE OF PUNJAB & ORS.

DATE OF JUDGMENT11/07/1995

BENCH: AGRAWAL, S.C. (J) BENCH: AGRAWAL, S.C. (J) MANOHAR SUJATA V. (J)

CITATION:  1995 SCC  Supl.  (3) 366 JT 1995 (6)   188  1995 SCALE  (4)361

ACT:

HEADNOTE:

JUDGMENT:           THE 11TH DAY OF JULY, 1995 Present:           Hon’ble Mr. Justice S. C. Agarwal           Hon’ble Ms. Justice Sujata V. Manohar Mr.R.Venkataramani, and Mr.Satya Mitra Garg, Advs. for the appellant. Mr. Gobinda Mukhoty, Sr. Adv. Mr. Raj Kumar Gupta, Mr. Rajesh, Advs. with him for the Respondent No.2 Mr. Ranbir Yadav, Mr. Sanjay Bansal and Mr.G.K.Bansal, Advs. for the State of Punjab.                      J U D G M E N T The following Judgment of the Court was delivered:                IN THE SUPREME COURT OF INDIA                CIVIL APPELLATE JURISDICTION                CIVIL APPEAL NO.710 OF 1987 Shri Madan Gopal Garg           Versus State of Punjab & Ors.                          JUDGMENT S.C.AGRAWAL.J. :      This appeal  involves the  question regarding  inter se seniority of  promotees and  direct recruits.  The posts  in question are  of District  Food &  Supplies Controller  [for short "Controller"] and the deputy Director, Food & Supplies [for short  "Deputy  Director"]  in  the  State  of  Punjab, governed by  the Punjab  Food &  supplies Department  (state Service Class-II)  Rules, 1966  (hereinafter referred  to as the  Rules).   Rules  6(1)(g)  of  the  Rules  provides  for appointment on  the post of Controller - (i) by promotion of District Food and Supplies, Officer or Superintendent in the Department, (ii)  by tansfer of Administrative officer, Food and Supplies,  and (iii)  by direct  appointment. It further provides that  33%  vacancies  shall  be  filled  by  direct appointment. The appointment for the post of Deputy Director is governed by Rule 6(1)(a) The said appointment is made (i)

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by  promotion   of  the   Assistant   Director,   Food   and Supplies/District         Food          and         Supplies Controllers/Administrative Officer,  or Officer  on  Special Duty,  (ii)  by  promotion  of  Account  Officer,  Food  and Supplies or Assistant Controller of Food Accounts, and (iii) by  transfer  of  an  officer  already  in  the  service  of Government of  India or  of a State Government. Seniority is governed by Rule 10 which prescribes that for the purpose of seniority service  shall be divided into four groups. One of those  grous  is  that  of  Deputy  Directors  and  District Origanisers, Food  and Supplies  and  another  group  is  of Assistant Directors,  Food and  Supplies and Controllers. As per Sub-Rule  (2) of  Rule 10  the  seniority  inter  se  of members of  each group  has to be determined by the dates of their continous appointments in the service.      The appellant  and respondent no.3 are promotees having been first  promoted  as  Controller  and  later  as  Deputy Director. The  appellant was promoted as Controller by order dated April  21, 1973  while respondent no.3 was so promoted by order  dated August 17, 1972. Subsequently, the promotion of  the  appellant  to  the  post  of  Controller  was  made effective from  December 6, 1972. The appellant was promoted as Deputy  Director by order dated December 29, 1981/January 1, 1982  while respondent  No.3 was  so promoted by an order dated  February  17,  1981.  Respondent  no.2  was  directly appointed as  Controller after  being selected  by the State Public Service  Commission, by order dated April 9, 1974. He was promoted as Depurty Director by order dated November 10, 1982.  The  tentative  seniority  list  of  Controllers  was circulated by  memo dated January 6, 1981 wherein respondent no.2 (placed  at S.No.  44)  was  shown  as  junior  to  the appellant (placed  at S.No.  35) and respondent no.3 (placed at S.No.33).  Subsequently, in  view of  the decision of the Division Bench  of the  High Court  of Punjab and Haryana in Shri S.B.S.Virk  and Another  Vs. Shri  J.S.Bagga and  Ors., 1982 (2)  S.L.R. 720,  the said  seniority was  revised vide Memo dated  March 7,  1983 and respondent no.2 was placed at serial no.34  while respondent  no.3 and  the appellant were placed at  serial nos. 35 and 37 respectively and respondent no.2  was   thus  shown  as  senior  to  the  appellant  and respondent no.3 By order dated September 22, 1983 respondent no.2 was  appointed as  Joint Director,  Food and  Supplies. Feeling  aggrieved   by  the  aforesaid  revision  of  their seniority in  the cadre  of Controllers  and appointment  of respondent  no.2   as  Joint  Director,  the  appellant  and respondent no.3  filed a  Writ Petition (Civil Writ Petition No.4495 of  1983) in  the High  Court of  Punjab and Haryana wherein they  sought a  declaration that  they are senior to respondent no.2  as Deputy Directors and prayed for quashing of the  order dated September 22, 1983 appointing respondent no.2 as Joint Director. The said Writ Petition was contested by respondents  nos.1 and  2. The  said  Writ  Petition  was allowed by  a learned  Single Judge  of the  High  Court  by Judgment dated  August 2, 1985. It was held that the factual averment of  the writ  petitioners, namely the appellant and respondent no.3, that they had been appointed as Controllers within  the   quota  meant   for  promotees   had  not  been controverted by the respondents and it was also not disputed that they  were so  appointed earlier  to the recruitment of respondent no.2 on the post of Controller and that they were appointed earlier  than respondent  no.2 as  Deputy Director and, therefore,  they were senior to respondent no.2 both in the cadre  of Controllers  as well  as Deputy Directors. The learned Single  Judge, therefore,  held that the appointment of respondent  no.2 as  Joint Director which was made solely

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on  the   basis  of   higher  seniority   in  the  cadre  of Controllers/Assistant  Director  and  Deputy  Directors  was invalid.  The  order  dated  September  22,  1983  regarding appointment  of   respondent  no.2  as  Joint  Director  was therefore,  set  aside.  Respondent  no.2  filed  an  Appeal (Letters Patent  Appeal No.958  of 1985)  against  the  said judgment of  the learned  Single Judge.  The said appeal was allowed by  a Division  Bench  of  the  High  Court  by  the impugned judgment  dated August 6, 1986. Before the Division Bench of  the High  Court the  following two  questions were agitated : i) Whether the promotion of the Write Petitioners in 1972 as Controllers was within their quota? ii)  Whether   quota  rule   governing  appointment  on  the vacancies in  the post of Controller had broken down in view of the  promotions in  excess of  the quota  made during the period 1966 to 1974?      While considering  the  first  question  regarding  the promotion of  the Writ  Petitioners being  made within their quota, the  Division Bench  of the High Court found that the pleadings on this aspect of the case were not clear and were not happily  worded and,  therefore, the High Court by order dated January  7,1976 directed  the learned Advocate General to  obtain   an  affidavit   from  the  Secretary/Additional Secretary/Deputy  Secretary   in  the   Food  and   Supplies Department specifically  mentioning as  to whether  the writ petitioners were  holding the  posts  within  the  quota  of promotees or  not. It  was also  directed that the concerned officer should give the datails of the strength of the cadre and of  promotions and direct appointments made from 1966 to 1974. In compliance with the said order, the affidavit dated January 17,1986,  of Shri  C.L.Bains, Special  Secretary  to Government of  Punjab in the Department of Food and Supplies was filed  wherein it  was stated  that the writ petitioners were  not   holding   the   post   of   Controller/Assistant Director/Additional District  Food and  Supplies Controller, within the  quota or  promotees and, in fact, at the time of their promotion,  there was  no post available in promotees’ quota and  that they  were promoted  against posts meant for direct records  and temporary vacancies caused on account of proceeding on  foreign service  by certain  officers. In the said affidavit  it was  stated that during the years 1966 to 1963,  the   cadre  strength  of  the  Controllers/Assistant Directors/Additional District  Food and Supplies Controllers was 13  which was  raised to 15 from the year 1968-69 and to 16 in  1969-70 and  to 21  in 1970-71  and  that  the  cadre strength continued to be 21 till March 31, 1974. It was also stated that three officers were on foregin service and there was one leave vacancy and that against the cadre strenght of 21  posts,   25  persons   were   holding   the   posts   of Controller/Assistant Director/Additional  District Food  and Supplies Controller  in March,  1974 out  of which  only two were  direct   recruits.  It   was  further  stated  that  a requisition for  making direct  recruitment was  sent to the Public Service  Commission in  June, 1972,  and at that time the writ  petitioners were  holding the lower cadre posts of District Food  and Supplies  Officers.  Alongwith  the  said affidavit a  statement containing  details of  promotions of Controllers/Assistant Directors/Additional District Food and Supplies Controllers  from 1966  to March 31, 1974 was filed as Annexure  R/2  and  a  statement  containing  details  of officers  holding   the   posts   of   Controllers/Assistant Directors/Additional District  Food and Supplies Controllers in March,  1974 was filled as Annexure R/3. Rejoinder to the said affidavit of Shri Bains were filed by the appellant but

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the High  Court found  that he had not given any material to show that the factual picture given in the affidavit of Shri Bains was, in any way, distorted. The High Court, therefore, accepted the averments made in the affidavit of Shri Bains.      Proceeding on  the basis that the strength of the cadre at the  relevant time was 21, the division Bench of the High Court has held that 14 posts could be manned by promotees or officers brought  on transfer  and 7 posts fell to the quota of direct  recruits and  that according to Annexure R/2 both the writ  petitioners were  not in  the 14  posts meant  for promotees or  officers brought  on transfer  but were  lower down at  S.No. 16 and 22 and were promoted against the posts meant for  directrecruits and  they had to make room for the direct recruits  whenever they  were selected  and posted on these posts  and therefore,  they could  not claim seniority under Rule  10 on the basis of continuous appointment on the post of  Controller and  they have  been  rightly  shown  as junior   to    respondent   no.2    in    the    cadre    of Controllers/Assistant Directors/Additional  controllers. The learned Judges on the Division Bench have also held that the quota rule  had not broken down as a result of promotions in excess of  the quota  being made during the period from 1966 to 1974.  It was held that after the framing of the Rules in 1966 no appointments were made in 1967 and in 1968 no direct recruitment was  made but  the process  for  appcintment  of direct recruits  must have  commenced in  1969, because Shri S.B.S.Virk, a direct recruit, was appointed as Controller on January 21, 1970, on the recommendations of the State Public Service Commission  and  that  in  1971  Shri  A.S.Brar  was appointed as  Controller by  direct recruitment  and in June 1972 a requisition for making direct appointment was sent to the public  Service Commission  which showed  that the State Government had  been consistently  and  persistently  making efforts to  fill in  the posts meant for direct recruits and the said  posts could  not be filled at the proper time only because of  the cumbersome  procedure of selection of direct recruits and  that there  was no  inaction or inertia on the part of  the Government and that there had been no deviation in implementing the rule and therefore, it could not be said that the quota rule had broken down.      Out of the two writ petitioners the appellant alone has filed the  appeal. We  will, therefore, confine ourselves to the case of the appellant alone.      Shri R.  Venkataramani, the  learned counsel  appearing for the  appellant, has assailed the correctness of the High Court judgment  on both  the grounds.  He has urged that the High Court was in error in holding that the promotion of the appellant  as   Controller  was   in  excess  of  the  quota prescribed for  promotees under  the Rules  and that  having regard to  the number  of vacancies that had occurred during the period  from 1966  till the  date of  promotion  of  the appellant on  the said  post, the  said appointment has been made within  the quota  prescribed for  promotees under  the Rules. Shri  Venkataramani has  also submitted  that in  any event, the  quota rule  had broken  down in view of the fact that only  two  persons  had  been  directly  recruited  for appointment on the post of Controller during the period from 1966 till  March 31,1974 and therefore, the promotion of the appellant to  the post of Controller could not be held to be irregular  and   the  appellant  is  entitled  to  have  his seniority in  the cadre of Controllers fixed on the basis of the dated  of his  appointment on  the said post, i.e., with effect from December 6, 1972 under Rule 10(2) of the Rules.      We  will   first  take  up  the  question  whether  the appointment of  the appellant on the post of Controller with

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effect from December 6, 1972 was within the quota prescribed for promotees  under the  Rules. The  relevant provisions in this regard are contained in Rule 6 which reads as under :      "Method of appointment:      (1)  Appointment  to  the  post  in  the      service shall be made as under :      (a) In the case of Deputy Director, Food      & Supplies :      (i)  by   promotion  of   an   Assistant      Director,  Food   and  Supplies/District      Food            and             Supplies      Controllers/Administrative  Officer   or      Officer  on   Special  Duty,  having  an      experience of  working on  any of  these      posts for a minimum period of two years;      (ii) by  promotion of  Accounts Officer,      Food   and    Supplies   or    Assistant      Controller of  Food Accounts,  having an      experience of  working on  any of  these      posts for  a  minimum  period  of  three      years; or      (iii) by  transfer of an officer already      in the service of Government of India or      of a State Government;      (b) In  the case  of Assistant Director,      Food and Supplies:      (i) by  promotion of a Superintendent in      the  Department  or  District  Food  and      Supplies Officer  in the District having      an experience of working on any of these      posts for a minimum period of two years;      or      (ii)  by   transfer  of   Administrative      Officer, Food and Supplies; or      (iii) by  transfer of an officer already      in the service of Government of India or      of a State Government;or      (iv) by direct appointment;           Provided that  33  per  cent  posts      shall be  by the  method  prescribed  in      sub-clause(iv);      (c) to (f) xxx  xxx  xxx  (omitted)      (g) In  the case  of District  Food  and           Supplies Controller:      (i) by  promotion of  District Food  and      Supplies Officer  or  Superintendent  in      the Department  having an  experience of      working of  any of  these  posts  for  a      minimum period of two years; or      (ii)  by   transfer  of   Administrative      Officer, Food and Supplies; or      (iii) by direct appointment;           Provided that 33 per cent vacancies      shall be filled by the method prescribed      in sub-clause (iii).      (h)  xxx  xxx  xxx (omitted)      (2) When  any vacancy occurs or is about      to occur  in the service, the appointing      authority shall  determine the manner in      which the vacancy is to be filled.      (3) All  appointments by promotion shall      be made  by selection,  on the  basis of      seniority cum-merit  and no person shall      have  any  claim  to  any  post  in  the      service  merely   on   the   ground   of

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    seniority."      The seniority  is governed by Rule 10 which provides as follows:      "10. Seniority of members of service:      (1) For  purposes of seniority service shall be divided      into the following groups :      (i) Deputy  Directors, Food  and Supplies  and District           Organisers, Food and Supplies.      (ii)  Assistant   Directors,  Food   and  Supplies  and      District Food and Supplies Controllers.      (iii) Accounts Officer, Food and Supplies and Assistant      Controller of Food Accounts.      (iv) District Food and Supplies Officers.      (2) The  seniority inter  se of  members of the Service      under each  group shall  be determined  by the dates of      their cortinuous appointments in the service:"      The main  part of  Clause(g) indicates  that there  are three sources from which appointment can be made on the post of Controller  namely, (i)  by promotion,  (ii) by transfer, (iii)  by  direct  appointment.  The  proviso  to  clause(g) requires that  33% vacancies  shall be  filled by the method prescribed in sub-clause (iii), i.e., by direct appointment.      In the proviso to clause (b) the expression "posts" has been used  while in the proviso to clause (g) the expression "vacancies" is  used. The  High Court has held that both the expressions are  used in the same sense to mean posts in the cadre. We  do not  consider it  necessary to  go  into  this question because  even  if  the  expression  "vacancies"  is construed to mean the vacancies in the cadre occurring after the coming  into force  of the  Rules, the  appellant cannot succeed.      The submission  of Shri Venkataramani is that since the actual number  of vacancies which occurred during the period from 1966  till March 31, 1974 has not been indicated by the State, the  only basis for applying the quota rule can be to take into account the total number of appointments that have been  made   during  that  period.  Shri  Venkataramani  has furnished a list indicating that during the period from July 4, 1966  to April 9, 1974, 29 persons have been appointed on the post  of Controller and that out of them four are direct recruits and  the rest are promotees. Shri Venkataramani has submitted that  applying the quota rule 9 vacancies could be available for  direct recruits  out of these 29 appointments and 20  vacancies were  available for  promotees and that as per seniority,  the appellant  is placed  at serial  no.  19 amoungst the promotees and therefore, the appointment of the appellant is  within the  quota. It is no doubt true that in the absence of any material which gives the actual vacancies in a  year, it  may be  reasonable to  accept the  figure of appointment in that year as substantially representating the actual vacancies  (See :  B.S.Gupta v.  Union of India, 1975 Suppl.SCR 491,  at p.506). We cannot however, apply the said criterion in  the present  case, because a number of persons after appointment  on the  post of Controller have been sent on  deputation   and  the  appointments  were  made  against temporary vacancies  resulting from such officers being sent on deputation.  This would  be evident  from Annexure R/3 to the affidavit  of Shri  Bains filed  in the High Court which shows that in March, 1974 three officers viz., Shanti Swarup Suri, O.P.Gupta  and B.N.Madhok  were on deputation. We also find that  by order  dated 22nd  March, 1974, Lakhbir Singh, G.S.Chawla and  respondent no.3 were sent on deputation with the State  Civil Supplies  Corporation  Ltd.and  by  another order of  the same  date, the  appellant and  Niranjan Singh were  sent   on  deputation  to  the  State  Civil  Supplies

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Corporation. It  has been  stated in  the counter  affidavit filed by  Shri T.R.Bhatia  on behalf  of the  State in  this Court that  the appellant  and respondent  no.3 were sent on deputation in  crder to  make room  for the  direct recruits viz.,  Surjit   Singh  and   respondent  no.2.   We  cannot, therefore, proreed on the basis that the number of vacancies during the  period from  1966 to April 9, 1974 were the same as the  number of  persons who were appointed as Controllers during  that   period.  Even   according  to   the  list  of appointments submitted by Shri venkataramani 23 appointments were made  on the  post of Controller during the period from July 7,  1966 to  December 6,  1972 out  of which  two  were direct recruits  and the  rest 2. were promotees or officers appointed by  transfer. On  the basis  of the  quota rule  8 posts were  for direct  recruits and 15 posts were available for promotees and officers appointed by transfer which would mean that  an appointment made in excess of 15 posts was not within the quota fixed for promotees under the Rules. In the list submitted  by  Shri  Venkataramani,  the  appellant  is placed at  S.No.18 in the list of promotees. His appointment on December  6, 1972, was, therefore, in excess of the quota fixed for promotees. The fact that before the appointment of direct recruits  viz.Surjit Singh  and  respondent  no.2  in March and Aprl, 1974 the appellant and other officers had to be sent  on deputation  to make room for the direct recruits would show  that till  then no  regular vacancy  within  the quota was  available against  which the  appellant could  be absorbed. It  must, therefore,  be held that the appointment of the  appellant as  Constroller was in excess of the quota and it continued to be so till respondent no.3 was appointed by direct recruitment.      Once it  is held  that the appointment of the appellant was in  excess of the quota fixed for promotees and officers appointed by  transfer,  the  said  appointment  has  to  be treated as an invalid appointment and it can be treated as a regular appointment only when a vacancy is available against the promotion  quota against  which the said appointment can be regularised.  In other  words, any  such  appointment  in excess of  the quota  has to  be pushed down to a later year when it  can be  regularised as  per the  quote and  such an appointment prior  to regularisation cannot confer any right as against  a person  who is  directly appointed  within the quota prescribed  for direct recruits [See : N.K. Chauhan v. State of  Gujarat (1977)  1 SCR  1053 at pp. 1053 and 1058). Since at the time of the appointment of respondent no.2, the appellant was  holding the  post of  Controller in excess of the quota  fixed for  promotees, he  cannot claim  seniority over respondent  no. 2  on the basis of such appointment and he has  to make  way for respondent no.2. He has, therefore, been rightly  placed junior  to respondent no.2 in the cadre of Controllers. In view of Rule 6(3) promotion from the post of Controller  to the post of Deputy Director had to be made on the  basis of  seniority-cum-merit. Respondent  no.2,  by virtue of  his being senior to the appellant in the cadre of Controllers, was  entitled to be promoted as Deputy Director earlier than  the appellant but he was denied such promotion in view  of the  earlier seniority  list of  January 6, 1981 wherein he  was shown  as junior to the appellant. But after the seniority  list of  March 7, 1983 wherein he is shown as senior to  the appellant,  respondent no.  2 is  entitled to claim seniority  over the  appellant in  the cadre of Deputy Directors also  and he  was rightly treated as senior to the appellant in  the said  cadre  and  on  that  basis  he  was promoted as Joint Director by order dated September 1983. We do not find any infirmity in the said order.

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    We are  also unable  to accept  the contention  of Shri Venkataramani that the quota Rule had broken down on account of promotions in excess of the quota having been made during the period  from 1966  to 1974.  As pointed  out by the High Court, after  the reorganisation  of the  State of Punjab on November 1,  1966, no  appointments were made in 1967 and in 1968 no  direct recruitment  was made  but the  process  for appointment of direct recruits had commenced in 1969 in view of the  fact that Shri S.B.S. Virk, a direct recuit had been appointed  as   Controller  on   January  21,  1970  on  the recommendations of  the Punjab Public Service Commission and in 1971 Shri A.S. Brar was appointed as Controller by way of direct recruitment  and in  June,  1972  a  requisition  for selection of  proper candidates  for direct  appointment was sent to  the Punjab  Public Service  Commission and  on  the basis of  the said selection Shri Surjit Singh was appointed by way  of direct  recruitment by order dated March 29, 1974 and respondent no.2 was so appointed by order dated April 9, 1974. The  High Court has held that the State Government had been consistently and persistently making efforts to fill in the posts meant for direct recruits and that the posts meant for direct  recauits could  not be filled at the proper time only because  of the  cumbersome procedure  of selection  of direct recruits  and that  from the  pleadings and facts and circumstances of  the case,  it was patent that there was no inaction or  inertia on  the part of the Government and that there had  been no  deviation in  the implementation  of the Rules. We  are in  agreement with  the said view of the High Court. The  decisions of  this Court  in G.S.Lamba & Ors. v. Union of  India (1986)  3 SCR 431 and Narender Chadha & Ors. v. Union  of India  (1986) 2  SCC 157  on which reliance has been placed  by Shri Venkataramani, have, in our opinion, no application to the facts of the present case.      For the  reasons aforementioned,  we do  not  find  any merit in  this appeal  and the same is accordingly dismissed but without any order as to costs.