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PETITIONER: BHAGWAN DAS AND OTHERS

       Vs.

RESPONDENT: INDIAN COUNCIL. OF AGRICULTURAL RESEARCH AND OTHERS

DATE OF JUDGMENT30/04/1985

BENCH: KHALID, V. (J) BENCH: KHALID, V. (J) PATHAK, R.S.

CITATION:  1985 AIR 1192            1985 SCR  (3)1064  1985 SCC  Supl.   38     1985 SCALE  (1)1101

ACT:      Constitution of India 1950, Article 14 and 16,        I.C.A.R.-Seniority  first OF Assistants-Promotees and direct recruits-  Placement  in  List  Promotees  contending violation of  guarantee of  equality Satisfactory  proof  of date of appointment in grade-Necessity of.

HEADNOTE:       The 39 petitioners in the writ petition were promotees to  the   post  of   Assistant  in  the  Indian  Council  of Agricultural Research-first  respondent. The  Nos. 3  second respondent was  the Union  of India and respondent Nos. 3 to 31 were direct recruits to the same post. Respondent Nos. 32 to  88   were  also  promotees  and  impleaded  as  proforma respondents. The petitioners contended that they belonged to the service  of  the  Central  Secretariat,  (Department  of Agriculture) and  the society  was a part of that Department till 1.4.1965  on which date the Government of India decided to  re-organise   the  society   into  a   fully  autonomous organisation with its own Secretariat. The petitioners opted to join  the service in the Society on such re-organisation. Respondent Nos.  3 to  31 were  directly recruited  after an Open competitive  test. The  seniority list  was prepared by the Society  in 1976  showing the  relative positions of the promotees and  the direct  recruits.A second  seniority list was published  by the  Society on  7.4.1981  and  this  list brought changes  in the  earlier list  and pushed  down  the promotees from the positions they occupied in that list. The petitioners contended  that this  seniority list  should  be quashed on  the ground that it violated Article 14 and 16 of the Constitution, as recruitment rules laying down the terms of services  in the Society were not available seniority had to be fixed on length of service. They were also entitled to seniority on  the basis  of the length of their service from the date  of they  came into  the Society  by virtue  of the option. The  case of  the contesting  respondents  was  that seniority  has  to  be  fixed  not  with  reference  to  tho reorganisation of  the Society  but on  the  date  of  their appointment on a regular basis, and that the petitioners had to establish that they were duly appointed in the service on a regular basis when they exercised their option.          Dismissing the Writ Petition.

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1065 ^      HELD: 1.  In the  absence of  satisfactory proof of the date of  appointment of  the petitioners  in  the  grade  as assistants   in   the   Society   the   petitioners   cannot successfully urge  violation of  Article 14  and 16  of  the Constitution. No  great injustice  was done to the promotees in the preparation of the list. Goeing through the list, one finds that  the gap  between the  promotees and  the  direct recruits is  of a  very short  duration and  not wide  as in other cases.  Direct recruitment  was made  first only 1967. However, to  work out  the quota  system an  earlier date of appointment had  to be  given to  the direct  recruits. This could not  be avoided.  This has not done great injustice to the petitioners.  This dislocation  was limited  only  to  a period between  1965 to  1967 and  1967 to  1971 and  not  a fairly long period of time. [1073 C-E]      2. The  memorandum Annexure-4  dated 20th  April,  1970 clearly states that the principles to determine the inter-sc seniority  of  the  ministerial  staff  in  the  reorganised Council was  considered by  the  Society  and  that  it  was decided that the seniority of the Ministerial staff would be fixed on the basis of "date of appointment made on a regular basis." The contention of the petitioners that seniority has to be  filed with  reference to the date on which option was exercised by them, has no basis. [1069D.E]      3. Direct  recruitment to the post of Assistants in the Society was made holding competitive examination in 1967 and 1971. Upper  Division Clerks,  like the petitioners who were working with  the Agricultural  Department, could  very well have appeared  for  this  competitive  examination  and  got themselves directly  recruited as Assistants on successfully passing the competitive examination. Some of the petitioners in fact  appeared for  the competitive test without success. Those who were successful at the competitive examination and the interview  were offered the post of Assistant by regular appointment. [1069F - H]      4. Relying  on Annexure-4-Memorandum  dated 24.4.70 the petitioners’ attempt  to contend that their seniority should start from  the date  they exercised option and that this is correctly reflected  in 1976 list. This submission overlooks the fact  that even  at  that  time,  there  were  rules  in existence prescribing  a ratio of 1: I between promotees and direct recruits.  In addition  to this,  it has  to be noted that here  also, filling  up of vacancies on a regular basis is emphasised, [1071 G-H]      5. The Union Government and the Society were originally in error  in their  assumption that  no  rules  existed  for regulating the service conditions in the Society Annexure 6, are rules  relating to  the Indian  Council of  Agricultural Research before  its reorganisation.  The said  rules  show, that the  posts of Assistants can be filled up 50% by direct recruit also.  The handbook for personnel officer shows that the relative  seniority of  direct  recruits  and  promotees shall be  determined according  to the rotation of vacancies between direct  recruits and  promotees which shall based on the quotas  of vacancies reserved for direct recruitment and promotion  respectively   in  the   Recruitment  Rules.  New recruitment rules came into effect from 1.91974. This method of recruitment  was to  be with  effect  from  1.1.1976.  It further provided  that vacancies  arising between  29.8.1973 and 31.12.1975  were to be filled wholly (100%) by promotion This 1066 means that  vacancies prior to 29.8.1973 and 31.12.1975 will

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be filled up in accordance with the 1964 rules and vacancies between 29.8.1973  and 31.12  1975 will  be  filled  by  the promotees along and thereafter in the ratio 1: 1. From these rules it  is-evident that  the Society  was conscious of the claims of the promotees and hence safeguards their interests by providing  100% posts  for  them  between  29.8.1973  and 31.12.1975. By doing so, justice was done to them in a great measure. [1072 C-E; G-H; 1073]

JUDGMENT:      ORIGINAL JURISDICTION: Writ Petition No. 1938 of 1981      (Under Article 32 of the Constitution of India)        M. K. Ramamurthy and P. P. Singh for the Petitioners.      M. C.  Bhandare, Raju  Ramalchandran, R. R. Garg, V. J. Francis and N.M. Popli for the Respondents.       The Judgment of the Court was delivered by      This  writ   petition  involves  the  familiar  rivalry between promotees and direct recruits. Normally a resolution of such  a dispute  these two  well known  groups of service employees  would   necessitate  considereation   of  various decisions relating to the quota and rota rule and such other allied matters.  We have  been relieved  of this    exercise because We  feel that  the  dispute  in  this  case  can  be resolved on  facts, unaided  by precedents  on such matters. The counsel  on both  sides advisedly, therefore, restrained themselves from citing the relevant authorities before us.          2. Now the facts:      All the  39 petitioners  are promotees  to the  post of Assistant in  the Indian  Council of  Agricultural  Research (for short  ’the society’)  the 1st  respondent herein.  The second respondent is the  Union of India and respondent Nos. 3 to  31 are  direct recruits  to the  same post. Respondent Nos. 32  to 88 are also promotees and have been impleaded as proforma respondents.      3 The  petitioner originally belonged to the service of the Central  Secretariat, Government  of India,  Ministry of Agriculture. The  Society was a part of that department till 1. 4. 1965 on  which date the Government of India decided to re-organise the 1067 Society into  a fully  autonomous organisation  with its own secretariat. The  petitioners opted  to join  the service in the Society on such re-organisation. Respondent Nos. 3 to 31 were directly recruited after an open competitive test, held by the  Society  in  1967  and  1911.A  seniority  list  was prepared  by  the  Society  in  1976  showing  the  relative positions of  the promotees  and the  direct  recruits.  The provocation for  filing the writ petition was the publishing of a second seniority list, by the Society by its Memorandum No. 27  (5)/81-Estt. II  dated 7.4.1981.  This list  brought changes in  the earlier  list and  pushed down the promotees from the positions they occupied in that list. The prayer in the writ  petition is  to quash  this seniority  list on the ground that it violates Article 1 and 16 of the Constitution of India and to stay its implementation.      4. The  Petitioners’ case  is that  they came  into the Society by  virtue of  the option exercised by them and that they are entitled to seniority on the basis of the length of their service  from the  date of  option. According to them, recruitment rules,  laying down  the terms of service in the Society, were not avilable then and as such seniority had to be fixed  on length  of service.  The case of the contesting respondents is  that seniority  has to  be  fixed  not  with

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reference to  the date  of the reorganisation of Society and the date of option exercised by the petitioners but from the date of their appointment on a regular basis. They seriously disputed the case of the petitioners that they were entitled to seniority  from the  date they  exercised  their  option. According to  them the  petitioners have  to establish  that they were  duly appointed in the service on a regular basis, when they  exercised their option, to claim seniority on the strength of length of service from the date of their option.      5.  We   must  confess   that  there  was  considerable confusion both  on the  side of  the petitioners  and on the side  of  the  Society  and  the  Government  regarding  the existence of  rules, regulating the conditions of service in the Society.  Things proceeded  in the  Society on the basis that there were no recruitment rules in existence till 1974, while the  factual position  is that rules were in existence from  1964.  It  was  on  this  wrong  aasumption  the  that seniority list  was prepared  on 2nd February, 1979. In that list, seniority  was reckoned  with reference  to length  of service. It  was after  realising that  a mistake  had  been committed and that rules, in fact, existed that the impugned list was drawn up on 7th April, 1981. 1068      6. The  petitioners have  given a comparative statement as Annexure-9,  showing the manner in which the new list has worked to  their detriment. This Annexure show. the relative potions of the promotees and the direct recruits in the 1976 list and  in the  1981 list.  To cite two or three examples; direct recruits who were placed at serial Nos. 4, 20 & 83 in the 1976  list, have  gone up  as seria  Nos. 2,  10 and 22, respectively, in  the 1981  list. While  preparing the  1976 list, a  deemed date of appointment in the grade was adopted to calculate the length of service. The petitioners, case is that the direct recurits never questioned their placement in this list and therefore cannot oppose with any justification the petitioners’  request for  quashing the  impugned  list. Though this  submission  ’  is  wholly  not  unfounded,  the petitioners cannot  succeed merely  on the  inaction on  the part of the direct recruits but have to satisfy the Court of a right  in them  to entitle them to seniority from the date they opted  and came  into the Society’s service. It is this aspect of the case that needs examination by us in this writ petition.      7. In  this case  we do  not have  the usual picture of great injustice  glaring in  the face,  of  promotees  being eased out  of their  places by  direct recruits after a long lapse of time. Here we are dealing with a small Society with a limited  number of  employees and the dispute relates to a short period  from 1965  to 1973. The petitioners cannot, in this case,  put forward  either  the  case  of  a  wholesale reduction of  their places,  legitimately due to them or the collapse of  the quota  and rota  system as  was the case in some of  the decided  cases. The  short point  here is as to when the  petitioners were regular appointed in the grade of Assistants and  as  to  whether  the  petitioners’  rightful places have  been robbed  by  the  Society  and  the  direct recruits by the impugned seniority list.      8.  The  petitioners  were  originally  Upper  Division Clerks with  the Agricultural  Department of  Government  of India. They  came to Court with the definite plea that their seniority  was   fixed  on   the  basis  of  the  principles applicable to Government service in the absence of any rules framed by  the society, regulating their service conditions. It is  stated in the petition that they made representations to the  authorities for  laying down  of clear principles to

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determine the inter-se seniority between them and the direct recruits and  as a  consequence,  the  Government  of  India issued a  Memorandum dated  20th  April,  1970,  asking  the Govern- ment  employees to  give their option by 30th April. 1970 and 1069 reiterating at  the same time that the inter-se seniority of the ministerial staff under the reorganised Council would be fixed on  the basis  of the  date of  appointment made  on a regular  basis.   It  is   significant  to   note  that  the petitioners have  not produced a single of their appointment orders for  this Court  to be satisfied as to then they were appointed as  Assistants on a regular basis while a specimen appointment order  of direct  recruits  has  been  produced. Still the  petitioners insist  that  the  crucial  date  for determining the  inter-se seniority is 1-4-1965, the date on which the  Society was  reorganised. We find it difficult to accept the  contention that  the length of service has to be reckoned from  1.4.1965 or  from the  respective dates  when they entered the service of the Society on exercise of their option when  the Memorandum,  produced by  them, has clearly stated that  the inter-se  seniority will  be fixed  on  the basis of the date of appointment in the grade on the regular basis. We  have looked into the Memorandum Annexure-4, dated 20th April,  1970. It  clearly  states  that  the  date  for exercise of option has been extended to 30th April’ 1970 and that the  principles determining  the inter-se  seniority of the  ministerial   staff  in  the  reorganised  Council  was considered  by   the  Society   in  consultation   with  the Ministries of  Law and  Home Affairs and Finance and that it was decided  that the  seniority of the ministerial staff in the reorganised  Council would  be fixed  on the  basis of " date of  appointment to the grade on a regular basis ." This statement in the Memorandum which finds a place in paragraph 8 of  the Writ  Petition also  shows, according  to us,  the hollowness  of   the  contention  of  the  petitioners  that seniority has  to be  fixed with  reference to  the date  on which option was exercised by them.      9. Direct  recruitment to the post of Assistants in the Society was  made by holding competitive examination in 1967 and 1971.  Upper Division  Clerks, like  the petitioners who were working  with the  Agricultural Dept.,  Govt. Of India, could  very   well  have   appeared  for   this  competitive examination  and   got  themselves   directly  recruited  as Assistants   on   successfully   passing   the   competitive examination. We  are told  that some  of the  petitioners in fact, appeared  for the  competitive test  without  success. Though  this   statement  made   by  the   counsel  for  the respondents at  the bar was not disputed by the petitioners’ counsel, we  do not  propose to rely on it since it is not a matter  on   record.  Those   who  were  successful  at  the competitive examination  and the  interview were offered the posts of Assistant by regular appointment as per appointment order produced as 1070 Annexure-5, issued  by the  Society, containing the terms of appointment. As  already  indicated,  the  petitioners  have either by design or by oversight failed to make available to us their  orders of  appointment on  a regular  basis in the grade  when  they  exercised  option.  It  is  against  this background that  the challenge  to the  1981 list  has to be considered. 10.  If the petitioners can satisfy us that they had greater  length of  service in equivalent grade than the direct recruits, they are entitled to succeed. If they fail, the list has to stand despite the fact that the earlier list

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was not challenged by the direct recruits. We do not have on record anything  to show when the petitioners were regularly appointed in the grade of Assistants. In the absence of this evidence, can  the petitioners  succeed ?  As already stated the Society and the Union Government were originally under a misapprehension that  no rules existed governing the service conditions in  the Society.  The petitioners have produced a Memorandum Annexure-3  dated 21st  August, 1967 which throws considerable light  on the  dispute involved in the case. lt is stated therein that the Government of India have approved of the  reorganisation of the Indian Council of Agricultural Research into  an office  wholly controlled  and financed by the Indian  Council of  Agricultural Research,  with  effect from a date to be appointed shortly. As a consequence of the above decision  the various  posts  existing  as  Government posts in the said Secretariat, will be abolished with effect from the aforesaid date and corresponding number of posts in various cadres  will be created as nongovernment posts under the Society.      11. Paragraph 2 of this Memorandum reads:           "The Indian  Council of Agricultural Research has,      however, agreed to take over such officers as belong to      the C.S.S.  (holding posts  of Section  Officer’s grade      and Grade  IV only), C.S.S.S. and C.S.C.S., employed on      date in  the Department of Agriculture and its attached      offices (including  the Indian  Council of Agricultural      Research) as  are willing  to serve  the  Council.  The      Indian  Council   of  Agricultural  Research  will,  of      course, select  from amongst the persons opting for its      service only  the number  of persons  required by them,      keeping in  view the  total number of existing posts in      the various cadres borne on the Govern-_ 1071      ment  side   of  the  Indian  Council  of  Agricultural      Research."      Clause VI of Para 2 reads as follows:           "The inter-se  seniority of  the staff  in  Indian      Council of Agricultural Research shall be determined in      accordance with  the rules to be framed for the purpose      taking  into  account,  among  others,  the  principles      governing the seniority under the Central Government."      From the  passages extracted  above, it  becomes  clear that appointments are to be regularly made to various grades only with  effect from  a date  to be  appointed after  21st August, 1967,  the date  of the Memorandum, which means that the deemed  date of  appointment mentioned  in the 1976 list cannot be  relied upon  by the petitioners to project a case of their  length of  service from that date. The petitioners placed strong  reliance on the Memorandum,‘ Annexure-4 dated 20th April, 1970, and in particular to the following:           It has  also been  decided that  1st  April,  1965      shall constitute  the crucial  date for determining the      inter-se seniority  of the  staff finally  merging into      the reorganised Council. Accordingly, a combined inter-      se seniority  list will  be prepared  for each grade of      the persons  on the  basis of  the above  principle  in      accordance with  the position  obtaining in  respect of      each individual  as on  1st April, 1965 and all regular      vacancies arising  in the  Council with effect from 1st      April, 1965  upto date, meant to be filled by promotion      (including those  which have  been filled  up on ad hoc      basis) will be filled up on a regular basis from the 1?      inter-se  seniority   list  drawn   up  in  the  manner      indicated above."      12. Relying on this, the petitioners attempt to contend

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that  their  seniority  should  start  from  the  date  they exercised option  and that  this is  correctly reflected  in 1976 list.  This submission  overlooks the fact that even at that time, there were rules in existence prescribing a ratio of 1:  1 between  promotees and direct recruits. In addition to this,  it has  to be  noted that here also, filling up of vacancies on a regular basis is emphasised. 1072      13. The  Petitioners cannot therefore seek support from this to  press a case of seniority from the date of exercise their options or from the deemed date of appointment.      Rights can accrue to them as members of the new service only from  the date  they are  regularly  appointed  in  the grade. The  impugned list  instead of continuing the mistake committed in the 1976 list, has only corrected the mistake.      14. We  find from the records that the Union Government and the Society were originally in error in their assumption that no  rules existed for regulating the service conditions in the  Society. We  have at  page 91  as Annexure-6,  rules relating to  the Indian  Council  of  Agricultural  Research before its  reorganisation. The  said rules  show  that  the posts  of  Assistants  can  be  fill  d  up  50%  by  direct recruitment and 50% by promotions. In other words, for every promotee there  should be  a direct recruit also. As is seen in  the   Handbook  for   personnel  officer,  the  relative seniority  of   direct  recruits   and  promotees  shall  be determined according  to the  rotation of  vacancies between direct recruits  and promotees  which shall  be based on the quotas of  vacancies reserved  for  direct  recruitment  and promotion respectively in the Recruitment Rules.      15. New  recruitment rules  for verious  posts  in  the Society including  Assistants with  which we  are concerned, came into  force with  effect  from  1.9.1974.  Under  these rules, in  the number  of posts available for Assistants 50% was to  be by  way of  promotion from  amongst  the  U.D.Cs. having rendered  at least  5 years  approved service  in the grade on  the  basis  of  seniority-cum-fitness  subject  to rejection of  the unfit on the recommendations of the D.P.C. and 50% by direct recruitment on the basis of the results of competitive examination held by the ICAR.      16. This  method of  recruitment was  to be with effect from 1.1.1976. The method of recruitment before this date is also indicated in these rules. It is provided in these rules that vacancies,  arising between  29.8.1973 and  31.12.1975, will be  filled wholly  (100%) by promotion. This means that vacancies prior  to 2.9.1973 will be filled up in accordance with the  1964 rules  and vacancies  between  29.8.1973  and 31.12.1975, will  be  filled  by  the  promotees  alone  and thereafter in the ratio I :1. From these rules it is evident 1073 that  the  Society  was  conscious  of  the  claims  of  the promotees and hence safeguarded their interests by providing 100% posts  for them  between 29.8.1973  and 31.12.1975.  By doing so,  justice was  done to them in a great measure. The petitioners have  no grievance  that in  preparing the  1981 list, which  is impugned  in this writ petition, a departure has been  made to  their detriment,  without adhering to the quota provided  in the  rules. Their  only grievance is that the earlier list was changed without taking into account the deemed dates  of appointment. We have already indicated that in  the  absence  of  satisfactory  proof  of  the  date  of appointment of the petitioners in the Grade as assistants in the Society, the petitioners cannot successfully urge before us a  violation of  Article 14 and 16 of the Constitution of India.A look  at the  list prepared  in accordance  with the

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above  rules,   fortifies  our   conclusion  that  no  great injustice was  done to  the promotees  in the preparation of the list.  As one  goes through the list, one finds that the gap between  the promotees  and the  direct recruits is of a very short  duration and  not wide  as in other cases. It is true that  direct recruitment  was made  first only in 1967. However, to  world out  the quota  system an earlier date of appointment had  to be  given to  the direct  recruits. This could not be avoided. This according to us, has not done any great injustice  to  pursuade  us  to  give  relief  to  the petitioners. The  dislocation was  limited only  to a period between 1965  to 1967  and 1967  to 1971 aod not to a fairly long period of time. E      In our  Judgment, therefore,  the petitioners  are  not entitled  to   succeed.  The  writ  petition  fails  and  is dismissed. The parties are directed to bear their costs, N.V.K.                                   Petition dismissed. 1074