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PETITIONER: AWADH PRASAD SINGH AND ORS.

       Vs.

RESPONDENT: STATE OF BIHAR AND ORS.

DATE OF JUDGMENT27/03/1990

BENCH: RAY, B.C. (J) BENCH: RAY, B.C. (J) SAIKIA, K.N. (J)

CITATION:  1990 AIR 1256            1990 SCR  (2) 193  1990 SCC  (3) 294        JT 1990 (3)   483  1990 SCALE  (1)587

ACT:     Excise  Recruitment  Rules  1936:  Rule   1(3)(2)--Bihar State--Excise  Department--Excise Inspectors  promoted  from Upper  Division Assistants in Excise Department  and  Excise Inspectors  promoted  Sub-Inspectors--Gradation  list--Chal- lenge to--Whether valid.

HEADNOTE:     The subject matter of the Writ Petition is the gradation list dated 9.1.1986 of the Inspectors of Excise by which the Government of Bihar has finally fixed the inter se seniority of  the Petitioners who were promoted vis-a-vis  the  appel- lants  in the present appeal who were promoted to  posts  of Inspectors of Excise in 5% quota reserved for promotion from the posts of Upper Division Assistants of Excise Department.     In  the  gradation  list the appellants  who  joined  as Inspectors  of Excise on 7.5.76 were shown as senior to  the Excise  Inspector who were promoted from  Sub-Inspectors  on 24.4.74 in the vacancies of direct recruits.     The  gradation list was challenged in the High Court  by the  Respondents on two grounds i.e., (1) the State  Govern- ment  has  no  jurisdiction to determine  the  seniority  or gradation  list  of  the Excise  Inspectors,  the  competent authority is the Excise Commissioner (2) The Respondents  in the  present  appeal have been continuously  officiated  for years together in the vacancies of direct recruits and  thus could  not be pushed down for determining the seniority  and shown as juniors to the contesting appellants.     The High Court allowed the Writ Petition in part. It was held  that 5% quota to be filled up by promotion from  Upper Division  Assistants of Excise Department was notified  only on 31st March 1975, whereas the appellants have been promot- ed  in the 5% quota of vacancies of the year 1974-75.  Hence they have not been promoted in the 5% quota. The Respondents in the present appeal were promoted as Excise Inspectors  on 24.4.74 in the quota of direct recruits and thus they  could not  be  shown  as juniors to those who  were  promoted  and joined  on 7.5.76 from 5% quota of the 1974-75  year  vacan- cies. The High Court quashed the 194 gradation list and directed the State Government to draw  up

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a fresh list in the light of the observations made.  Further it held that State Government is the competent authority  to determine inter se seniority because where in any provisions of  Bihar Excise Act 1915 government has vested  the  Excise Commissioner with the power of determining the seniority  of the Excise Inspectors. Hence the gradation list prepared  by the State Government is legal and valid.     The  appellants  filed Special Leave  petition  in  this Court against the High Court Judgment and Order. Allowing the Special Leave Petition, this Court,     HELD: The appellants claimed to be promoted to the posts of  Inspectors in the 5% quota set apart for promotion  from the  Upper Division Assistants against the vacancies of  the year 1974-75. Since under Bihar Excise Act 1915 vide notifi- cation  No. 417 of 15.1.1919 clause (iv) the Excise  Commis- sioner  was given only the powers to appoint Excise  Inspec- tors  by promotions but not to determine inter se  seniority etc.  Hence vide Excise Recruitment Rules 1936, Rule  No.  I vide  notification No. 411 dated 31.3.75, after  clause  (2) clause  (3)  was added making provision for  promotion  from selected confirmed Upper Division Assistants and Head Clerks of  the District Excise Office and also added at the end  of the Rule 1 that at least 5% of the total vacancies shall  be filled up by promotion from among the above notified  staff. In this rule the provision for relaxation of direct recruit- ment quota was made but there was no relaxation of the quota of promotees. [197G; 198C; 199E]     The  State  Government made this decision and  order  on 20.3.74  regarding reservation of 5% of the total  vacancies to  be  filled  by promotion for the year  1974-75  but  the notification  to that effect was published on  31.3.75.  The promotion could not have been given unless the decision  was confirmed  by notification. It was only after the  notifica- tion  of  31.3.75, that the Upper Division  Assistants  were promoted as Excise Inspectors for the first time out of  the 5%  quota created in the vacancies of 1974-75, in  the  year 1976. [205G-H; 206B]     The  Government  has  rightly  promoted  the  appellants within their quota in the vacancies occurred in 1974 by  its orders. [211D]     When  there is no relaxation in the quota  vacancies  as between the direct recruitment and promotees, the determina- tion of inter se 195 seniority  shall be determined in the order of  rotation  of vacancies reserved for both categories, the direct  recruits made within their quota would always deemed to be senior  to those promotees recruited inexcess of their quota. [210H; 21 1A]     V.B.   Badami v. State of Mysore, AIR 1980 SC  1561;  A. Janardhana v. Union of India & Ors., AIR 1983 SC 769 and  O. Singla  & Anr. v. Union of India & Ors., AIR 1984  SC  1595, relied on.     It  is  only when the quota rule was not adhered  to  or followed  for a long time and the promotees are  allowed  to officiate in the quota of direct recruits for a period of 15 to  20 years, in such circumstances Government is  empowered to relax the quota rule and the promotees will have seniori- ty  from  the  date of the continuous  officiations  in  the cadre, grade or service. [210F]     Narendra  Chadha v. Union of India, AIR 1986 SC 638  and G.S. Lamba & Ors. v. Union of India & Ors., [1985] 3 SCR 431     Quotas  are fixed under the relevant rules  of  recruit- ments  and  can be altered only by  fresh  determination  of quotas under the relevant rules of recruitments. [201 C]

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   In the instant case, there was no rule for relaxation of the quota. The respondent Nos. 3 & 4 who were promoted  from selected  Excise Sub-Inspectors to the Inspectors of  Excise in  1974,  officiated  till 7.5. 1976  when  the  appellants joined  as  Inspectors  of Excise from their  5%  quota.  It cannot be said in such circumstances that the quota was  not filled  up  for a long period nor can it be  said  that  the respondents 3 & 4 who were promoted in excess of their quota have  worked  as inspectors of Excise for long time  and  as such the respondents 3 & 4 cannot claim to be seniors to the appellants. [210G-H; 211A]     The  appellants being promoted as Inspectors  of  Excise from  the  5% quota of vacancies of the year  1974-75,  were rightly shown as seniors. in the gradation list prepared  by the Government on 9.1.1986 which is legal and valid. [21 1D]

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 16 13  of 1990.     From  the  Judgment and Order dated 1.4. 1987  of  Patna High Court in Civil Writ Jurisdiction Case No. 4097 of 1985. 196     R.K.  Garg,  Praveen Swarup and Pramod  Swarup  for  the Appellants.     M.K. Ramamurthi, L.R. Singh, B.B. Singh, D.P.  Mukherjee and M.P. Jha for the Respondents. The Judgment of the Court was delivered by RAY, J. Arguments heard. Special Leave granted.     This  appeal  on Special Leave is directed  against  the Judgment  and Order dated April 1, 1987 passed by  the  High Court,  Patna  m C.W.J.C. No. 4097/1985  allowing  the  writ petition in part. The subject matter of the writ petition is the  gradation  list dated 9.1. 1986 of  the  Inspectors  of Excise  by which the Government of Bihar has  finally  fixed the  inter se seniority of the petitioners  (respondents  in this  Appeal)  who were promoted vis-a-vis  the  respondents Nos. 3 and 4 (appellants in this appeal) who are promoted to posts of Inspectors of Excise in 5% quota for promotion from the posts of Upper Division Assistants of Excise  Department in the said Civil Writ Petition.     The matrix of this case in short is that the  appellants Nos. 1 and 2 who were respondents 3 and 4 of the writ  peti- tion  were promoted to the posts of Excise  Inspectors  from among the Upper Division Assistants of the Excise Department against the vacancies of the year 1974-75 and they joined as Inspectors  of Excise on May 7, 1976. The respondent Nos.  3 and  4  who were Sub-Inspectors of Excise were  promoted  on 24.4.74  in the vacancy of the year 1974-75 by  the  Commis- sioner  of Excise, Bihar. In the gradation list prepared  by the Government on January 9, 1986 the appellants were  shown as  seniors to the respondents even though  the  respondents were  promoted  from selected Sub-Inspectors of  Excise  and they joined the posts of Excise Inspectors earlier than  the date when the appellants were promoted as Excise Inspectors. This  has been challenged by the respondents on  the  ground that  there is an apparent error committed by the  State  in showing  the  respondents juniors to the appellants  in  the gradation list. The gradation list was challenged mainly  on two grounds namely: (1)  the State Government has no jurisdiction  to  determine the  seniority of Excise Inspectors and the  only  competent authority  for determining the same was the  Excise  Commis- sioner who has neither determined the seniority nor prepared

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the gradation list. 197 (2) The respondents (petitioners of the writ petition)  have continuously officiated for years together in the vacancy of direct  recruits  and merely because  the  respondents  were appointed against the vacancy of direct recruits they  could not  be pushed down for determining the seniority and  shown junior  to the contesting appellants. The writ petition  was allowed by the High Court holding that the respondents  were not  appointed in the 5% quota set apart for being filed  up by promotion from the posts of Upper Division Assistants  in the Excise Department inasmuch as this quota was notified by the Government on March 31, 1975 even though the  Government passed  order  providing  5% of the total  vacancies  to  be filled by the promotion from among the selected Upper  Divi- sion Assistants and selected Head Clerks. It has, therefore, been  contended that the petitioners Nos. 3 and 4  (respond- ents Nos. 3 and 4 in this appeal) cannot be shown as juniors to the appellants. Moreover it has been alternatively  urged that these respondents having been promoted to the posts  of Inspectors of Excise in the quota of direct recruitment  for several years, they could not be pushed down and the  appel- lants who joined on promotion to the posts of Inspectors  of Excise  subsequently  cannot be shown as senior to  the  re- spondents Nos. 3 and 4 in the said gradation list. The  High Court,  Patna  after hearing the parties held that  the  re- spondents  Nos. 3 and 4 who were appointed in the  vacancies of  the  promotees  of the year 1974-75 and  who  joined  as Inspectors on 24.4.1974 cannot be made juniors to appellants Nos. 1 and 2 who were promoted and joined two years later on 7.5. 1976. The High Court allowed the writ petition in  part by  quashing the gradation list (Annexure 15)  and  directed the  Government  to draw up a fresh gradation  list  in  the light of observations made therein.     It is against this judgment and order passed in C.W.J.C. No.  4097/85, the instant appeal on special leave  has  been filed by the appellants.     The  only question that falls for consideration in  this appeal is whether the appellants who claim to be promoted to the posts of Inspectors of Excise in the 5% quota set  apart for promotion to the posts of Inspector of Excise from among the  Upper  Division  Assistants of  the  Excise  Department against the vacancies of the year 1974-75 had been  promoted in  this  quota.  In order to decide this  question,  it  is relevant to refer to certain provisions of the Bihar  Excise Act, 1915 as well as Rules 1 & 4 of the Inspectors of Excise Recruitment Rules, 1936. 198     Section 2(7) of the Bihar Excise Act, 1915  (hereinafter referred  to  as Act) defines Excise  Commissioner  "as  the Officer  appointed under Section 7 sub-section 2 clause  (a) of the said Act". Section 7 Sub-Section (2)(a) provides that the  State Government may appoint an officer who shall  sub- ject  to  such control as the State Government  may  direct, have the control of the administration of the Excise Depart- ment  and  the  collection of the  excise  revenue.  Section 7(2)(a)  further  provides  that the  State  Government  may delegate to the Board, the Commissioner of a Division or the Excise Commissioner all or any of the powers conferred  upon the State Government by or under this Act except the  powers conferred  by  Section  89 to make  Rules.  Section  7(2)(f) provides  that  the State Government may withdraw  from  any officer  or person all or any of the powers of  duties  con- ferred or imposed upon him by or under this Act.. By Notifi- cation  No. 417 dated January 15. 1919, in exercise  of  the

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powers conferred under the Act, the Lt. Governor in  Council was pleased to make clause (ii) of the Notification order to the  effect that there shall be an Excise  Commissioner  who shall subject to the control of the Board will have through- out the province of Bihar the control of the  administration of the Excise Department and the collection of excise  reve- nue. It has also been provided in clause (iv) of the Notifi- cation  that the power to appoint by promotion Inspector  of Excise  was  delegated  to the Excise  Commissioner  by  the Government.     Thus,  it is clear and apparent that the Excise  Commis- sioner has been delegated the powers by the State Government to  appoint  by promotion from  selected  Sub-Inspectors  of Excise,  but no here it has been mentioned in any  of  those provisions that the Excise Commissioner has been vested with the power of determining the seniority of the Inspectors  of Excise. Therefore, the submission that the seniority list or the  gradation  list  prepared by the  State  Government  is unauthorised being beyond the powers of the State Government is  unsustainable and the gradation list that has been  pre- pared  on January 9, 1986 by the State Government  is  legal and valid as upheld by the High Court.     It  is  necessary to refer to the recruitment  rules  to determine  seniority.  Rule 1 of Excise  Recruitment  Rules, 1936 reads as follows: "1. Inspectors of Excise and Salt shall be appointed: (i) by direct recruitment by the Board of Revenue,or, 199      (ii)  by  promotion of selected Sub-Inspectors  by  the Commissioner of Excise and salt.          Not  more than 25 per cent of the  vacancies  shall ordinarily  be  filled by direct recruitment; but  with  the approval  of the Board of Revenue on the  recommendation  of the Commissioner of Excise this proportion may on any  occa- sion, be increased to 50 per cent". Later on by Notification No. 1451 dated 2.3. 1945  published in  the Bihar Gazette on March 7, 1945, the expression  "not more than" in   the last paragraph of Rule 1 has been delet- ed. Subsequently by Government Notification S.O. 411,  dated 31st  March,  1975 published in the  Bihar  Gazette,  Extra- ordinary  Issue  on  that day, after clause (2)  or  rule  1 clause (3) has been added and it reads as follows: "by  promotion from among selected confirmed Upper  Division Assistants of the Excise Commissioner’s office and  selected confirmed Head Clerks of the District Excise Offices".     By the said notification the following has been added at the end of rule 1 "Atleast 5 per cent of the total vacancies shall  be filled by promotion from among the selected  Upper Division Assistants and selected Head Clerks."     Thus on a perusal of the said rule as amended clearly it indicates  that 25% of the total vacancies for the  post  of Inspectors of Excise shall be filled by direct  recruitment, 70%  shall  be filled by promotion from among  the  selected Sub-Inspectors  and  5% shall be filled  by  promotion  from among the confirmed Upper Division Assistants of the  Excise Commissioner’s  Office  and  confirmed Head  Clerks  of  the District  Excise Offices. The 25% quota of  direct  recruits can be relaxed and increased to 50 per cent. It is  signifi- cant  to note in this connection that no provision has  been made in the said rules for relaxation of the quota of promo- tees.  The necessary question arises if the  promotion  from Sub-Inspectors of Excise to the post of Inspectors of Excise have  been made in excess of the quota of the  promotees  in the vacancy of direct recruits and later on direct  recruit- ment  has been made the promotees can in such  circumstances

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be treated to be juniors to the direct recruits or not. This question  was under consideration before this Court  in  the case of V.B. Badami v. State of Mysore, A.I.R. 1980 SC 1561. In this case The Mysore Administrative Service 200 (Recruitment) Rules, 1957 classified class 1 posts into  two categories:  senior scale posts and the junior scale  posts. Two-thirds of the junior class I posts were filled by promo- tion  from  Class II officers and the balance  one-third  by direct recruitment by the Public Service Commission. By  the Mysore Recruitment of Gazetted Probationers Rules, 1959, the quota  for direct recruitment to the  Mysore  Administrative Service  was  increased from one-third to two-thirds  for  a period of five years as a consequence of which the quota for promotees  had been reduced to one third, Rule 17(b) of  the 1957  Recruitment Rules empowered the Government to fill  up posts temporarily by promotion against vacancies for  direct recruits but such promotees were liable to be reverted after the appointment of direct recruits.     In January 1972, a Gradation List was published in which the  direct recruits (respondents) were shown as  senior  to the  appellants. The appellants challenged the seniority  of the respondents in writ petitions on the ground mainly  that the  respondents  were recruited only to  the  20  temporary posts  created  and that the appellants and 51  others  were appointed  to  59 permanent vacancies. The appeal  was  dis- missed by this Court and it has been observed as follows: "The principles generally followed in working out the  quota rule  are,  (i) Where rules prescribe quota  between  direct recruits and promotees confirmation or substantive  appoint- ment can only be in respect of clear vacancies in the perma- nent  strength  of  the cadre; (ii)  confirmed  persons  are senior  to those who are officiating; (iii) as between  per- sons  appointed in officiating capacity, seniority is to  be counted  on  the length of continuous service;  (iv)  direct recruitment  is  possible only  by  competitive  examination which is the prescribed procedure under the rules. In promo- tional vacancies, the promotion is either by selection or on the  principle of Seniority-cum-merit. A promotion could  be made  in  respect  of a temporary post or  for  a  specified period, but direct recruitment has generally to be made only in respect of a clear permanent vacancy, either existing  or anticipated to arise at or about the period of probation  is expected  to  be completed; (v) if promotions  are  made  to vacancies in excess of the promotional quota, the promotions may  not  be  totally illegal but would  be  irregular.  The promotees can not claim any right to hold promotional  posts unless the vacancies fall within their quota. If the  promo- tees occupy any vacancies which are within the 201 quota of direct recruits, when the direct recruitment  takes place, the direct recruits will occupy the vacancies  within their  quota.  Promotees  who are  occupying  the  vacancies within the quota of direct recruits will either be  reverted or they will be absorbed in the vacancies within their quota in the facts and circumstances of the case; and (vi) as long as the quota rule remains, neither promotees can be allotted to  any of the substantive vacancies of the quota of  direct recruits nor direct recruits can be allotted to  promotional vacancies; and (vii) quotas which are fixed are  unalterable according  to exigencies of the situation. They can only  be altered by fresh determination of quotas under the  relevant rules.  One group either on the ground that the  quotas  are not  filled  up or that because there had been a  number  in excess  of the quota the same should be  absorbed  depriving

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the other group of quota."     It  thus emanates from the said Judgment of  this  Court that when promotion has been made in excess of the quota the promotees  who  have been promoted in the  quota  of  direct recruits  will  be pushed down and will be absorbed  in  the quota  of promotees of subsequent years and the  direct  re- cruits made within their quota would be deemed to be  senior to those promotees recruited in excess of their quota.     In  the case of A. Janardhana v. Union of India &  Ors., AIR  1983 SC 769 the question of determination of  seniority between the direct recruits to the post of Assistant  Execu- tive  Engineer  (AEE)  and the promotees from  the  post  of Assistant  Engineer  fell for  consideration.  The  Military Engineer  Services Class I (Recruitment, Promotion and  Sen- iority)  Rules  (1949  Rules for Short)  were  brought  into operation  on or from 1.4. 1951. Under Rule 3 and 4 of  1949 Rules the recruitment to MES Class I was to be made from two sources,  namely, by competitive examination  in  accordance with  Part  II of the Rules and by promotion  in  accordance with Part III of the Rules. Rule 4 prescribed a quota of 9:1 between  direct  recruits and promotees.  During  the  years 1962,  1963 and 1964 particularly and until the  year  1969, the  Class I Service Rules were not statutory in  character. The  Union  Government relaxed the Rules both in  regard  to recruitment  by interview and in regard to the quotas  fixed by  the  Rules  for direct recruitment  and  recruitment  by promotion to Class I Service. The 1949 Rules and the  subse- quent  amendments  thereto  acquired  statutory  flavour  in character  by incorporation only in 1969 and till then  they were mere administrative instructions. 202     It  was  due to emergency situation in  .the  market  of recruitment of engineers between 1959 and 1969 and the  dire need of urgently recruiting engineers which led the  Govern- ment  to  make  recruitment m relaxation of  quota  rule  by foregoing the competitive examination and promoting subordi- nate  ranks  to  Class i Service.  Appellant  and  similarly situated persons were thus promoted to meet the dire need of service in relaxation of the quota rule.     It has been observed by this Court that when recruitment is  from  two  independent sources,  subject  to  prescribed quota, but the power is conferred on the Government to  make recruitment in relaxation of the rules any recruitment  made contrary  to  quota rule would not be invalid unless  it  is shown that the power of relaxation was exercised mala  fide. It  was also observed that the recruitment made to meet  the exigencies of service by relaxing the quota rule the  promo- tion in excess of quota would be valid. It had further  been observed that once the quota rule was fully relaxed  between 1959  and 1969 to suit the requirements of service  and  the recruitment  made  in relaxation of the quota rule  and  the minimum  qualification rule for direct recruits was held  to be  valid,  no effect could be given to the  seniority  rule enunciated  in Para 3(iii) of Appendix V of the 1949  Rules, which  was wholly interlinked with the quota rule and  could not  exist apart from it on its own strength. This  was  im- pliedly accepted by the Union Government and was implicit in the seniority lists prepared in 1963 and 1967-68 in  respect of AEE, because both those seniority lists were drawn up  in accordance  with  the  rule of seniority  provided  in  Army Instruction No. 241 of 1950.     It has been further held that there was no justification for redrawing the seniority list affecting persons recruited or promoted prior to 1969 when the rules acquired  statutory character. Therefore, the 1974 seniority list was liable  to

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be  quashed and the two 1963 and 1967 seniority  lists  must hold the field. In  Shri O.P. Singla and another v. Union of India  &  Ors., AIR 1984 SC 1595 the question of inter se seniority  between promotees  and  direct recruits came  up  for  consideration before this Court. Delhi Higher Judicial Service was consti- tuted  on May 15. 1971. It was governed by the Delhi  Higher Judicial  Service  Rules,  1970. Rule 7  provides  that  the recruitment  to  the service will be made from  two  sources i.e. by promotion on the basis of selection from members  of the Delhi Judicial Service, who have completed not less than ten  years of service in the Delhi Judicial Service  and  by direct Recruitment from the Bar 203 provided  that not more than 1/3rd of the substantive  posts in the service shall be held by direct recruits. The senior- ity  of direct recruits vis-a-vis promotees shall be  deter- mined  in  the order of rotation of  vacancies  between  the direct recruit and promotees based on the quota of vacancies reserved for both categories. Rule 7 provided that the first available vacancy will be filled by a direct recruit and the next two vacancies by promotees and so on.     It  has been observed that persons who are appointed  or promoted on an ad hoe basis or for fortuitous reasons or  by way  of a stop-gap arrangement cannot rank for  purposes  of seniority  with  those who are appointed to their  posts  in strict  conformity  with the rules of  recruitment,  whether such latter class of posts are permanent or temporary.     It has also been observed that persons belonging to  the Delhi Judicial Service who are appointed to temporary  posts of  Additional  District and Sessions Judges on  an  ad  hoc basis  or  for fortuitous reasons or by way  of  a  stop-gap arrangement,  constitute a class which is separate and  dis- tinct  from those who are appointed to posts in the  Service in strict conformity with the rules of recruitment. In  view of this, the former class or promotees cannot be included in the list of seniority of officers belonging to the Service.     It has, therefore, been held that those who are appoint- ed to the post of Additional District and Sessions Judges on ad  hoc  basis for fortuitous reasons cannot be  taken  into consideration in determining the seniority of the members of the Service.     In  the  case of G.S. Lamba & Ors. v. Union of  India  & Ors.,  [1985] 3 SCR 431 the question of inter  se  seniority between direct recruits and promotees cropped up for consid- eration before this Court. The Indian Foreign Service Branch ’B’  was  constituted in 1956. The  statutory  rules  Indian Foreign  Service Branch ’B˜ (Recruitment,  Cadre,  Seniority and  Promotion) Rules, 1964 were enforced on or from May  6, 1964. It provided for recruitment from three sources:- (1) direct recruitment on the result of a competitive exami- nation held by the Union Public Service Commission (2)  substantive  appointment  of persons  included  in  the selective  list promoted on the basis of a limited  competi- tive examination held by the Union Public Service Commission and 204 (3) Promotion on the basis of seniority     By  a notification dated February 12, 1975, Rule 13  was amended  to provide that recruitment to the three  different sources of integrated Grades II and III to be: (1)  1/6th of the substantive vacancies to be filled  in  by direct recruitment (2)  331/3  % of the remaining 5/6 of the  vacancies  to  be filled  on the basis of results of the  limited  competitive

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examination and (3) the remaining vacancies to be filled in by promotion  on the basis of seniority.     The petitioners were selected by the Union Public  Serv- ice  Commission  on the basis of the merit obtained  at  the examination  of  Assistants conducted for  the  purpose  for appointment  to  the post and allocated to the  Ministry  of External  Affairs.  After the initial  constitution  of  the service  of 1956, they were offered an option  whether  they would  like to join the I.F.S. Branch ’B’ in grade IV.  They opted  and were inducted into the service. Later  they  were promoted  between 1976 and 1979 from Grade IV to  the  inte- grated Grades II and III. The Government of India  published a  seniority list of the integrated Grades II and III as  on June 25, 1979 and before objections taken by the petitioners to  the  seniority list were dealt with,  another  seniority list was published on June 30, 1983. This list was  assailed by  the petitioners on the ground that it is  discriminatory and  is consequently violative of Article 14 and 16  of  the Constitution. This Court upheld their contention and quashed the  seniority  list. The Union Government was  directed  to prepare  a fresh seniority list. In the instant case  direct recruitment  had not been presumably made in excess  of  the quota and the promotees were appointed to substantive vacan- cies in the service and they had been holding the posts  for over  6 to 8 years. In the seniority list that was  prepared the  direct  recruits who were promoted much  later  to  the promotees in excess of their quota were shown senior to  the promotees,  it  has been held that once the  promotees  were promoted  regularly  and they have been  officiating  for  a number  of years the continuous officiation confers on  them an  advantage  of being senior to the later  recruits  under Rule  21(4). It has been further observed that if there  has been an enormous departure from the quota fixed by  exercis- ing the powers to relax, the quota rule was not adhered  to, the rota rule for inter se seniority as prescribed in 205 Rule  25(i) and (ii) cannot be given effect. In the  absence of  any other valid principle of seniority it has been  held that  continuous officiation in the cadre, grade or  service will provide a valid principle of seniority.     It  has been held that where the direct recruitment  had not  been made according to the quota for years  and  promo- tions  have been made in excess of the quota and the  promo- tees were appointed in the vacancies of the direct  recruits and  work  for a number of years, the quota rule  cannot  be given effect to and the promotees cannot be shown as  junior to  the  direct recruits in the seniority  list.  Continuous officiation  in the cadre, grade or service will  provide  a valid principle of seniority. Seniority List was, therefore, quashed and set aside.     In  the case of Narendra Chadha v. Union of  India,  AIR 1986  SC  638  there was a quota rule  for  filling  up  the vacancies from two sources--by direct recruitment as well as by promotion. The direct recruitment was not made for number of  years and the posts of direct recruits were filed up  by promotion.  The  promotees were allowed to function  in  the promoted  posts  for 15 to 20 years. Thereafter  direct  re- cruitment  was  made. There was a rule  which  empowers  the Government  to relax the quota. It was held that whenever  a person  is appointed in a post without following  the  rules prescribed  for that appointment to the post, he should  not be  treated  as a person regularly appointed to  that  post. Such  a person may be reverted from that post but in a  case where persons have been allowed to function in higher  posts

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for  15  to 20 years without due deliberation  it  would  be unjust  to  hold that they had no claim to  such  posts  and could be reverted unceremoniously or treated as persons  not belonging  to the service at all particularly where  govern- ment  is endowed with the power to relax the rules to  avoid injustice.  It has been held by this Court  that  continuous officiation of the promotees could be justified on the basis of  the rule 16 on the presumption that the  Government  had relaxed  the rules and appointed the promotees to the  posts in question to meet the administrative requirements.     In the instant case undoubtedly, the Government made  an order  on 20.3.1974 for reservation of 5% of the  posts  for recruitment by promotion from among selected confirmed Upper Division  Assistants  of the Commissioner’s Office  and  the selected  confirmed Head Clerks of the District  Excise  Of- fices.  Pursuant  to  that order, the  Government  later  on published  a Notification S.O. 411 in the Bihar  Gazette  on March  31,  1975 stating therein about the quota  of  5%  of total  vacancies reserved for the promotion of the  selected Upper Division 206 Assistants to the post of Inspectors of Excise. It has  been urged  by  the learned counsel appearing on  behalf  of  the respondents that the respondent Nos. 3 and 4 being  promoted and appointed as Inspectors of Excise from the 75% quota for promotion  from selected SubInspectors of Excise  in  April, 1974  they cannot be shown as junior to the  appellants,  in the seniority list inasmuch as the appellants were appointed on  7.5.1976. It has been further submitted in this  connec- tion  that  the appointment of the appellants  on  promotion from the 5% quota of the vacancies available in 1974  cannot be  made. It has also been submitted that  the  Notification referring  to the 5% quota for promotion of  Upper  Division Assistants  cannot  be deemed to be a quota  in  respect  of vacancies  for  the year 1974-75. As such  quota  cannot  be enforced  unless  and until the reservation of 5%  quota  of vacancies is published in the official gazette for  informa- tion of the public. In support of this submission the  deci- sion  in  Harla v. State of Rajasthan, [1952]  SCR  110  was cited  at the Bar. In this case on 11.12. 1923  the  counsel passed  a resolution which purported to enact a  law  called The  Jaipur Opium Act and the only question was whether  the mere  passing  of  the resolution  without  promulgation  or publication in the Gazette or by other means to make the Act known  to  the public was sufficient to make it  a  law  and enforce the same. There was an amendment of Section 1 of the Jaipur Opium Act to the effect that it shall came into force from  1.9.1924. The Act was never published in the  Gazette. It was held that the Jaipur Laws Act 1923 which required the whole  of the Act to be published instead of publication  of only one section, will not validate the same. In the instant case, the Government made an order reserving 5% of the total vacancies  in a year for being filled in by  promotion  from the  selected Upper Division Assistants and Notification  to that  effect  was published in the Gazette in  March,  1975. This  Notification  related to the vacancies  for  the  year 1974-75  i.e. the year ends on March 31, 1975. It is  perti- nent  to  refer  to the specific averments  made  by  Excise Commissioners,  Government  of Bihar, on behalf of  the  re- spondent Nos. 1 and 2--The State of Bihar and  Commissioner- cum-Secretary, Excise and Prohibition, Government of Bihar. It has been stated in paragraph 3 of the Counter Affidavit: "That  the promotion of the petitioners were caused  in  the Quota of 5% which was given to the petitioner by a Notifica- tion  dated 31.3. 1975 which is annexed in the  petition  as

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Annexure-A but due to the noting given in the File,  firstly by the Member of Board of Revenue on 20.3. 1974 and the 207 same has caused promotion to the petitioner which should not have  been done unless there is a notification in effect  to the noting given by the State Government." Noting given by the Board is reproduced herein below:          quota  in  the cadre of Excise-Inspector  is  given from  the cadre of confirmed Upper Division  Clerks,  Excise Commissioner’s office and confirmed Head Clerks of  District offices." It has been further stated that in the year 1976 the  Secre- tary of the Commission, Excise Department gave a note  whose English translation is given below: "As stated at page 22 of the notesheet that the pay scale of Upper  Division Assistants is more than the Head Clerks  and therefore  they will rank senior on that basis. So first  of all  the question of promoting Sarvasri Awadh  Prasad  Singh and Ram Vriksh Pd. Singh’s against the vacancy at Roster  67 and  68 has to be considered. The question of  promotion  of Sarvasri Vidyadhar Ghatwari and Devendra Narain Pd. would be considered  against  future vacancies and  therefore  it  is proposed to keep their names in the waiting list                                    Sd/-Ravikishore Narain                                      26.4. 1976" It has been further stated in paragraph 5 of the said  affi- davit  that  the Excise Commissioner accordingly  passed  an order in the year 1976, which is dated 5.5. 1976,  promoting the  petitioner  in accordance with the quota.  The  English translation of the same is as follows:       " So  far the question of promotion of Assistants/Head Clerks is concerned the rule has been framed in 1974 and for the  first time promotion is being given on this account.  I have carefully gone through the above rules and from perusal of the file it would appear that only 5% of the total vacan- cies  shall be filled in by the promotion. In the rule,  the word  2%  at  least" has come perhaps  inadvertantly  in  at least  5%.".There  is no such mention in the file.  On  this basis,  as has been mentioned in the note of  the  Secretary only two posts have to be filled up from the quota of 208 Assistants. So far as the persons by whom the filling up  of the  vacancies are concerned, I agree with the note  of  the Secretary marked ’Kh’ in the notesheet i.e. at present Awadh Prasad Singh and Ram Brikh Pd. Singh should be promoted. The name  of  Vidyadhar Pd. and Devendra Narayan Pd.  should  be kept in the waiting list."     It has been further stated that the Notification  giving 5% quota which is annexed in the petition as Annexure-A from the grade of Assistant/Head Clerks came into picture only on 31.3.1975 on the basis of order made by Government in March, 1974.  However, the petitioners were promoted on the  vacan- cies  caused in the year 1974-75, because the  decision  was taken in the year 1974 itself and accordingly the Department carried  out the same and accordingly a Gradation  List  was prepared.     A counter affidavit has also been filed on behalf of the respondent  Nos.  6 & 7, that is, promotees,  Inspectors  of Excise. It has been stated in paragraph 6 that the rules  of recruitment of Inspectors of Excise were modified by Notifi- cation  No. 411 dated 31.3. 1975. There was no provision  in the  Excise Act and Rules for appointment of  Inspectors  of Excise  from  among selected  Assistants  of  Commissioner’s office and Head Clerks of the District Excise offices  prior to  this Notification. This Notification for the first  time

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required the Department of Excise to fill at least 5% of the total vacancies by promotion from among the confirmed  Upper Division  Assistants and selected Head Clerks. The  respond- ents were promoted as Inspectors of Excise from  Sub-Inspec- tors of Excise vide Order 2091 dated 24.4.1974 in their  own quota and joined the promotional posts on 1.5. 1974. It  has also been stated that the appellants were appointed  Inspec- tors  of  Excise in the year 1976 and joined on  7.5.  1976. Apparently there was no quota for appointment of  Inspectors of Excise from among Assistants and Head Clerks in the  year 1974  and  the  averments made by the  respondent  State  or appellants  to  this  effect is mala  fide,  ridiculous  and false.  The appellants being appointed in the year  1976  by virtue  of  the Notification which came  into  existence  on 31.3.  1975  cannot  claim this vacancy of  1974  and  hence seniority  allotted to them by the respondent-State  was  in flagrant,  violation of law laid down by the  Supreme  Court and  hence the High Court rightly allowed the  C.W.J.C.  No. 4097/85 against the appellants herein.     In  the supplementary rejoinder affidavit on  behalf  of the  appellants it has been stated in paragraph 4  that  the State of Bihar has 209 proved the appellants, right to promotion on a vacancy  that occurred  in 1974 by the following clear admissions made  by the State of Bihar in its counter affidavit. "So  far  the question of promotion of  Assistants  or  Head Clerks  is concerned, the rule has been framed in  1974  and for  the  first  time  promotion  is  being  given  on  this account." "However,  the  petitioners were promoted on  the  vacancies caused  in the year 1974-75, because the decision was  taken in  the  year  1974 itself and  accordingly  the  Department carried out the same." It  has also been stated in paragraph 5 of the said  Rejoin- der: "That the Government who was clearly conscious of the rights created by the decision to amend the Rules taken in 1974 and in  accordance with the decision a Notification  was  issued later in March 1975. But the ministerial failure to make the Notification conformed to the decisions taken in 1974 is  no more  than  a clerical error and  the  Government  therefore rightly  promoted the petitioner within their quota  against the vacancies occurred in 1974 by its Order." 1t  has  been  further stated in paragraph 10  of  the  said rejoinder: "That there is a provision of seniority of Excise  Inspector in  Rule  6 of Recruitment Rules vide  notification  no.  54 dated  3.1.1936 for Excise Inspector. It is  clearly  stated that the seniority of all Inspectors on confirmation will be determined  in accordance with Government Order  No.  6509/A dated 12.12.1934 which is still in force. Besides there  are also  Government instructions with regard to seniority  such as letter No. 15784 dated 26.8.1972. The High Court ought to have considered the Rules of seniority when the case related to the seniority of Excise Inspector." In paragraph 11 it has been further averred: "That  in view of the clear admission of the Government  the petitioners  are entitled to the benefit of  promotion  with effect from as against the vacancies of 1974 as fixed by the Government  and  the High Court order is liable  to  be  set aside and the appeal may be allowed." 210     It  thus  appears from a perusal  of  the  Affidavit-in- counter sworn by the Commissioner of Excise on behalf of the

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State of Bihar, the respondent Nos. I and 2, that the  order creating 5% of the vacancies for promotion from the posts of confirmed Upper Division Assistants and selected Head Clerks have been made by the Notification dated 31.3. 1975,  though according  to  the noting given in the File by  the  Member, Board  of Revenue on 20.3. 1974 on the basis of the  Govern- ment Order the petitioners (appellants of this appeal)  were promoted  in the vacancies of the year 1974-75 by  order  of the  Excise  Commissioner  dated  5.5.1976.  Therefore,  the argument  on behalf of the respondents in this  appeal  that the appellants were promoted against the 5% quota in respect of the vacancies of the year 1975-76 is not sustainable. The appellants  having been appointed in the quota of 5% out  of the vacancies of 1974-75 are entitled to be shown as  senior in  the  gradation list prepared by the Government  on  9.1. 1986.  We have already mentioned hereinbefore that  the  re- spondent  Nos. 3 and 4 were promoted from the selected  Sub- Inspectors  Excise,  that is, in the 5% quota  reserved  for promotion  from the Upper Division Assistants of the  Excise Department.  In  accordance with the decisions  rendered  by this  Court in the case of V.R. Badami v. State  of  Mysore, (supra)  the  respondent Nos. 3 and 5 who were  promoted  to officiate  in the 5% quota of Upper Division Assistants  and confirmed  Head Clerks are to be pushed down as soon as  the appellants  have  been recruited in the said  quota  to  the posts of Inspectors of Excise in 1976 inasmuch as the promo- tion  though not illegal is irregular and the promotees  are to  be accommodated in the vacancies of subsequent years  in their  quota. 1t is only in the case of Narendra Chandha  v. Union of India, (supra) exception was made by this Court  to the  aforesaid  decision on the ground that  the  quota  was broken  down or not adhered to as there was  no  recruitment from  the quota of direct recruits for a period of 15 to  20 years  and  the promotees were allowed to officiate  in  the quota  of  direct  recruits for a long period of  15  to  20 years,  in such circumstances, it was held that in  view  of Rule 16 empowering the Government to relax the quota  rules, the  promotees  officiating in the vacancies of  direct  re- cruits  were presumable permitted to do so in relaxation  of the quota as such the seniority will be determined from  the date  of  their continuous officiating in  the  said  posts. Similar  view  has  been  expressed  in  G.S.  Lamba’s  case (supra).  In the instant case there was no rule for  relaxa- tion  of the quota nor the respondent Nos. 3 and 4 who  were promoted from selected Excise Sub-Inspectors to the  Inspec- tors of Excise in the 5% quota of Upper Division  Assistants in 1974 officiated till 7.5.1976 when the appellants  joined as  Inspectors of Excise from their 5% quota. It  cannot  be said in such circumstances 211 that the quota has not been filled up for a long period  nor can it be said that the respondents 3 and 4 who were promot- ed  in  excess of their quota have worked as  Inspectors  of Excise for long time and as such the respondents Nos. 3  and 4 cannot claim to be seniors to the appellants. Moreover, it is evident from the affidavit of the Commissioner of  Excise on behalf of the State of Bihar that the 5% quota of  vacan- cies  were  brought into being by the Board  of  Revenue  of March 20, 1974 though there was delay in notifying the  same in  the Gazette till 31.3. 1975. Nevertheless, it  has  been subsequently averred that the appellants were promoted  from the said 5% quota of vacancies of the year 1974-75.     In these circumstances on a conspectus of the  decisions referred to hereinbefore as well as of the Government  Order reserving 5% quota of vacancies on 20.3. 1974 and subsequent

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Notification  of the same on 31.3. 1975 the only  conclusion that  follows is that the appellants being promoted  as  In- spectors  of  Excise from the 5% quota of vacancies  of  the year  1974-75,  they were rightly shown as  seniors  in  the gradation list prepared by the Government on 9.1. 1986.  The findings of the High Court to the effect that the appellants were not promoted in the 5% quota of vacancies for the  year 1974-75  is  wholly wrong. Accordingly, the  gradation  list prepared  by the Government on 9.1. 1986 showing the  appel- lants  as  seniors to the respondents are  quite  legal  and valid  and so the same is upheld. We, therefore,  set  aside the judgment and order passed by the High Court in  C.W.J.C. No.  4097/ 85. In the facts and circumstances of  the  case, there will be no order as to costs. S.B.                                                Petition allowed. 212