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PETITIONER: UNION OF INDIA AND ANR.

       Vs.

RESPONDENT: G.K. VAIDYANATHAN AND ORS.

DATE OF JUDGMENT02/11/1995

BENCH: JEEVAN REDDY, B.P. (J) BENCH: JEEVAN REDDY, B.P. (J) RAMASWAMY, K. HANSARIA B.L. (J)

CITATION:  1996 AIR  688            1995 SCC  Supl.  (4) 271  JT 1995 (7)   650        1995 SCALE  (6)199

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T B.P.JEEVAN REDDY.J. Leave granted in Special Leave Petition (C) No.3930 of 1988.      A common  question arises  in these  two appeals. Civil Appeal No.4340  of 1995  is preferred  by the Union of India against the  decision of the Central Administrative Tribunal (Madras Bench)  in Original  Application  No.  731  of  1981 whereas Civil Appeal arising from Special Leave Petition (C) No.3930 of 1988 is preferred against an order of the Central Administrative  Tribunal   (Bangalore  Bench)   in  Original Application No.380 of 1987 as well as the order dismissing a review application  filed by  the appellants. The dispute is between direct  recruits and  promotees and  it  relates  to determination of  the seniority  as between them in the post of Chargeman  Grade-1 in the Ministry of Defence, Department of Defence Production.      Recruitment to  the post  of Chargeman Grade-1 was both by promotion  as well  as by direct recruitment. Until 1979, the ratio  between promotees  and direct  recruits was 2/3 : 1/3. From  March 3, 1979, it was changed to 80 : 20 and with effect from  June 26, 1985 the channel of direct recruitment has been  closed altogether;  the only method of recruitment is promotion  from the  post of Chargeman Grade-11. When the recruitment was  done through both the above methods, a rule of rotation  was also in vogue. Inasmuch as we are concerned in these appeals only with the period during which the ratio of 80 : 20 was in vogue, it is sufficient to notice that the rotation rule  in vogue  provided that  out  of  every  five vacancies, the  first four  vacancies  shall  be  filled  by promotees and the fifth vacancy by direct recruitment.      In Civil  Appeal No.4340  of 1995,  the facts  are  the following:  the  first  respondent  herein  (the  petitioner before the  Madras Tribunal)  was promoted  to the  post  of Chargeman Grade-1 on January 5, 1981 on a regular basis. The

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Respondent Nos.3  to 15 in the Original Application (who are Respondent Nos.2 to 13 in this appeal - one of them does not appear to  have been  impleaded  as  a  respondent  in  this appeal) were  appointed as  direct recruits to the said post in December  1981. In  the seniority list issued in the year 1982, while the third respondent in the Original Application was shown  at  SI.No.37,  the  petitioner  in  the  Original Application (first  respondent in  this appeal) was shown at Sl.No.141. The other respondents (direct recruits) were also shown as  seniors  to  the  first  respondent.  For  further promotion to  the  post  of  Assistant  Foreman,  they  were considered on the basis of the aforesaid seniority, with the result that  the direct  recruits,  who  were  appointed  in December 1981  came to  be promoted to the post of Assistant Foreman earlier  than the  first respondent.  Thereupon, the first  respondent   approached  the  Central  Administrative Tribunal (Madras  Bench)  by  way  of  Original  Application No.731 of  1986 praying for a declaration that the seniority lists issued  in the years 1982, 1983 and 1985 in respect of Chargeman Grade-I  be declared to be illegal and invalid and a further  direction to  promote him (petitioner in the said Original Application)  to the post of Assistant Foreman with effect  from  July  9,  1984,  the  date  which  the  second respondent was  promoted to  that post.  His submission  was that inasmuch  as there  was a  break-down of the quota rule during the  relevant years,  the rule  of rotation cannot be followed and  hence  the  direct  recruits  appointed  later cannot be  made senior  to him purporting to follow the rule of  rotation.   He  submitted  further  that  the  injustice inherent in following the rule of rotation inspite of bread- down in  the quota  rule has  been recognised by the Central Government which  has issued  a new  set  of  principles  in Office Memorandum  dated February  7, 1976. If the principle of the  said Office  Memorandum is  applied to  the  parties herein, the  petitioner in  the Original  Application (first respondent in  this appeal)  is entitled  to be  treated  as senior to  Respondent Nos.3  to 15  (direct recruits) in the Original      The learned  counsel appearing  for Respondent Nos.3 to 15 in  the Original  Application (direct  recruits) conceded before the  Tribunal that  the quota  rule has  broken  down warranting re-fixation  of seniority. The stand taken by the learned counsel  for the  direct recruits  may better be set out in the words of the Tribunal itself:      "The learned counsel for the respondents      conceded that it had broken down,      warranting a refixation of seniority. He      stated that since the Direct Recruits      were fitted  in slots earmarked for them      even though they were appointed very      much later than the promotees and this      led to their becoming senior to the      promotees, he would concede the first      prayer of the applicant in regard to his      seniority. In view of that we direct the      Ist and 2nd respondents to refix the      applicant’s seniority as Chargeman Grade      I in the light of the guidelines given      by the Department of Personnel &      Training in their O.M. dated 7-2-1986.      Even though  that O.M. would have effect      only prospectively, the principle laid      down therein is a principle of law which      has to be applied in cases like this      where seniority is challenged on the

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    ground that constitutional provisions      have been violated because of the      application of rota rule when quota rule      has already broken."      In view  of the  said concession - (the judgment of the Tribunal does  not show whether any counter was filed by the Union of  India, and  if so,  what was  its purport)  -  the Tribunal directed  that the petitioner before it is entitled to be  treated as senior to the respondents- direct recruits therein and  that he  is also "entitled to be considered for promotion as Assistant Foreman when the third respondent was considered for that post". The Union of India has come up in appeal against the said decision.      Identical dispute  between the  same parties  was  also raised before  the Bangalore  Tribunal with this difference. The Original  Application before  the Bangalore Tribunal was filed by  an Association  of the promotees and the promotees (Petitioner No.1  and Petitioner  Nos.2 to  39 respectively) claiming seniority over the respondents-direct recruits. The direct recruits were impleaded as Respondent Nos.4 to 15 who included Respondent  Nos.3 to 15 before the Madras Tribunal. The basis  of the  claim was identical, viz., the break-down of the quota rule. The direct recruits remained ex-parte but Union of  India contested the promotees’ case. The Bangalore Tribunal looked  into the  relevant  records  and  found  as follows:      "On an examination of the records, we      notice that there was a deviation or      departure in adhering to the quotas      prescribed for direct recruitment and      promotion in the calender years from      1978 to  1981 reckoning each year as one      unit. In all these years, the posts in      the cadre of CGI were filled in from two      sources, viz., direct recruitment and      promotions. Strange enough, during these      years, promotions to the cadre were in      excess of  direct recruitment. This then      is the factual position revealed from      the records."      The Tribunal  accordingly found  that it was not a case of bread-down  of quota rule but a case of mere departure or deviation in  certain years. It rejected the promotees’ case that there  has been  a break-down  of the  quota rule.  The claim  of   the  promotees  for  seniority  was  accordingly rejected.  The   Tribunal  also   rejected  the   promotees’ challenge to  the Office  Memorandum dated  February 7, 1986 insofar as  it stated  that the  principle  evolved  therein shall have  only prospective  operation and  that  seniority already  determined   in  accordance   with   the   existing principles  on   the  date  of  issue  of  the  said  Office Memorandum will  not  be  re-opened.  The  decision  of  the Bangalore Tribunal was rendered on October 20, 1987.      When the petitioners before the Bangalore Bench came to know of  the decision  of the  Madras  Tribunal  (which  was rendered on October 30, 1987), they applied to the Bangalore Tribunal for  reviewing its  judgment on  the basis  of  the decision of  the Madras  Tribunal. It was rejected. Both the aforesaid orders  are challenged  in the appeal arising from Special Leave Petition (C) No.3930 of 1988.      The learned counsel for the appellant-Union of India in Civil Appeal No.4340 of 1995 submits that in the interest of uniformity, this  Court should  decide on merits whether the quota rule  had indeed broken down during the period 1978 to 1981 de  hors the  concession made  on behalf  of the direct

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recruits before  the Madras Tribunal. He points out that the decision of the Madras Tribunal is based on a concession and that where  no such  concession was  made, i.e.,  before the Bangalore Tribunal, it has been held on merits that the said rule cannot  be said  to have  broken down.  On merits,  the learned counsel  supported the  reasoning  and  the  finding arrived at by the Bangalore Tribunal.      Sri Krishnamani,  learned  counsel  appearing  for  the promotees, on  the other hand, submitted that the quota rule must  be   held  to  have  broken  down  in  the  facts  and circumstances of these cases and that the concession to that effect was  rightly made  by the  direct recruits before the Madras Tribunal.  Once the quota rule is held to have broken down, the  learned counsel  contended, the  rule of rotation cannot be followed, in which event the principles enunciated by the  Constitution Bench  of this  Court in Direct Recruit Class-II  Engineering   Officers  Association  v.  State  of Maharashtra (1990  (2) S.C.C.  715) should  be followed. The learned counsel further submitted that following the rule of rotation despite the bread-down of the quota rule results in grave discrimination  and arbitrariness  and that  the  said fact was  recognised by  the  Government  itself  which  has accordingly issued a fresh set of instructions in its Office Memorandum dated  February 7,  1986. Counsel  submitted that the principles  contained in  the  said  Office  Memorandum, being equitable  and just,  should be  applied even  for the period anterior  to February  7, 1986  in  the  interest  of justice, equity  and fairplay. He submitted that the Central Government was  not justified  in saying that the principles in the  said Office  Memorandum shall  only have prospective operation which  really means that the injustice perpetrated earlier  to   the  said   Office  Memorandum  was  knowingly affirmed.      We are  of the  opinion  that  the  learned  Additional Solicitor General  is  right  in  his  submission  that  the decision of  the Madras  Tribunal is based upon a concession and cannot,  therefore, be  treated as a decision on merits. The said  concession made by direct recruits cannot and does not bind  the Union  of India,  which is equally an affected party in  the matter.  No such concession was made by any of the respondents before the Bangalore Bench. As stated above, the direct  recruits impleaded  as respondents before Madras Tribunal were  also  impleaded  as  respondents  before  the Bangalore Tribunal.  Moreover, the  said concession is found to be  opposed to  the record,  as found  by  the  Bangalore Tribunal, which  has  recorded  on  a  perusal  of  relevant records, that  even during  the years  1978 to  1981  -  the period during  which the  promotees say,  there was a break- down in  the quota  rule  -  both  direct  recruitments  and promotions were  being made though it may be that promotions to  the  cadre  were  made  in  excess  of  the  quota.  The correctness of the facts recorded in para-28 of the decision of the  Bangalore Tribunal  is not  disputed  or  questioned before us.  One this is so, the very theory of bread-down of the quota  rule falls to the ground. In such a situation, it is not  necessary either to deal with the decisions cited by the parties  on the question when the quota rule can be said to have  broken  down  or  with  the  question  whether  the principle contained  in Office Memorandum dated February 77, 1986  can   be  given   retrospective  effect.  The  factual situation concludes the issue against the promotees.      For the  above reasons, Civil Appeal No.4340 of 1995 is allowed and  the Civil  Appeal No. 9831 of 1995 arising from Special Leave Petition (C) No.3930 of 1988 is dismissed. The promotees’ challenge  to the seniority lists prepared in the

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years 1982,  1983 and  1985 fails as also their challenge to the promotion  of direct  recruits to  the post of Assistant Foreman earlier than the petitioners in Original Application No.380 of  1987 on  the file  of Bangalore  Tribunal.  There shall be no order as to costs.