REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   3630        OF 2008 [Arising out of  SLP (Civil) No. 17493 of 2006]

Chennai Customs Appraising Officers Assn. … Appellant

Versus

Union of India & Ors. …Respondents

WITH

CIVIL APPEAL NO.   3631                      OF 2008 [Arising out of  SLP (Civil) No. 17494 of 2006]

WITH I.A. No. 3

IA Nos. 5 & 6

J U D G M E N T  

S.B. SINHA, J :

1. Leave granted.

2. Interpretation  of  the  Customs  Appraisers’  Service,  Class  II

Recruitment  Rules,  1961  (for  short  “the  1961  Rules”)  and  the

Department of Revenue (Customs Appraisers) Recruitment Rules, 1988

(for short “the 1988 Rules”) vis-à-vis application of the decisions of this

Court in  Mervyn Coutindo & Ors. v.  Collector of Customs, Bombay &

Ors. [(1966) 3 SCR 600] and Gaya Baksh Yadav v.  Union of India and

Others [(1996) 4 SCC 23] is in question in these appeals which arise out

of a judgment and order dated 21.04.2006 passed by the High Court of

Judicature at Madras.

3. Appellant  is  the  Custom  Appraisers  Officers  Association

representing promotee ‘Appraisers’ who were appointed in the post  of

‘Examiner’ on various dates.   

Customs  Department  of  the  Government  of  India  (Department)

appoints  Appraisers.   There was no statutory rule governing the terms

and conditions of their services including seniority.   

4. There were two sources of recruitment in the post of Appraisers;

one by way of promotion and, the second by direct recruitment.   

In the  year  1936,  an  order  was passed  by the  Central  Board  of

Revenue  (Board)  laying  down  that  recruitment  to  the  Customs

Appraisers’ Service would be from two sources, i.e., 50% by promotion,

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25% directly from amongst the experts and 25% by way of a competitive

examination or selection by Public Service Commission.   

Circulars  were  issued  from  time  to  time  in  regard  to  inter  se

seniority between the promotees and the direct recruits.   

5. On or about 12.12.1959, the Government of India issued a circular

containing  general  principles  for  determining  seniority  of  various

categories of persons employed in central services.  By reasons thereof,

several types of recruitment like war service candidates, which was the

subject matter of an earlier circular, were not to be made.  Seniority was

to be determined in terms of the 1959 Circular whereby it was directed

that  the  instructions  contained  in  the  circulars  would  not  operate  in

preference to the normal principles for determining seniority in future.

Only  certain  general  principles  were  laid  down therefor.   They were,

however,  not  to  be  applied  with  retrospective  effect.   One  of  the

principles laid down therein was in respect of the relative seniority of the

direct  recruits  and  the promotees.   It  provided that  the  same shall  be

determined  as  per  rotation  of  vacancies  between  direct  recruits  and

promotees which shall  be based on the quota of  reservation for direct

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recruitment and promotion respectively as provided for in the recruitment

rules.   

6. The  dispute  in  regard  to  inter  se  seniority  between  the  direct

recruits and the promotees inter alia for the post of Appraisers came up

for consideration before this court in Mervyn Coutindo (supra).   

However,  the  said  dispute  pertained  to  the  1961  Rules,  which

came into force on or about 27.07.1961.  Various circulars were issued

from time to time thereafter.   Seniority lists were also published from

time to time.  The employees filed several applications before different

High Courts.  It appears although that one of the matters wherein validity

of a circular letter dated 29.10.1982 was in question, has been quashed

by the High Court but some other matters are said to be still pending.   

7. Indisputably, recruitments used to take place at zonal level, viz.,

Bombay Madras and Calcutta.  On or about 22.05.1986, the Government

of  India  issued  a  circular  as  regards  seniority  list,  viz.,  “All  India

Combined List of Appraisers”.  On the basis of the said list, orders of

promotions  were  issued  in  favour  of  the  incumbents  of  the  post  of

Appraisers  to  the  post  of  Assistant  Collector  of  Customs  of  Central

Excise.   The  said  circular  dated  22.05.1986  was  initially  challenged

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before this Court through a petition under Article 32 of the Constitution

of India by the ‘Direct Recruits’.  The said petition was permitted to be

withdrawn  by  an  order  dated  28.10.1986  granting  liberty  to  the

petitioners  therein  to  approach  the  Central  Administrative  Tribunal

(CAT),  pursuant  whereto  an  original  application  was  filed  before  the

Principal  Bench of the CAT, Madras.   The said circular  was quashed.

The  orders  of  promotions  passed  in  terms thereof  were  also  quashed.

The Union of India was directed to prepare a fresh seniority list on the

basis  of  the  date  of  continuous  officiation  as  Appraiser.   An  appeal

thereagainst was filed before this Court leading to pronouncement of the

judgment in Gaya Baksh Yadav (supra).

8. These  appeals  raise  a  question  of  interpretation  of  the  said

decision.  We would, however, deal with the said question a little later.  

9. The  Central  Government  issued  the  1988  Rules  on  or  about

1.01.1988.  Pursuant to or in furtherance of the decision of this Court in

Gaya Baksh Yadav (supra), a seniority list of Appraisers was published

upto  31.12.1987  on  12.11.1997.   The  said  seniority  list  again  was

challenged by the direct recruits before the Bombay Bench of CAT as

also before the Madras Bench.  The Madras Bench dismissed the said

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application being barred by limitation.  Despite the same, merit of the

matter was gone into by it holding that the ad hoc promotions having

been  made  on  the  recommendations  of  the  Departmental  Promotion

Committee  (DPC)  and  the  seniority  list  having  been  prepared  in

conformity with the law laid down by this Court in  Gaya Baksh Yadav

(supra) as also Direct Recruit Class II Engineering Officer Association v.

State of Maharashtra & Ors. [(1990) 2 SCC 715], the same should not be

interfered with.   

The said order was challenged before the High Court of Madras.    

10. In  the  meantime,  however,  the  Bombay  Bench  of  CAT  by  a

judgment  and  order  dated  18.06.2003  quashed  the  said  seniority  list

dated 12.11.1997.  The Government was directed to review positions of

those who had been promoted beyond 50% of their quota on ad hoc basis

holding that the same was violative of Rule 4(c) of the 1961 Rules.   

A writ petition filed thereagainst, is said to be still pending before

the Bombay High Court.

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11. Pursuant  to  or  in  furtherance  of  the  directions  of  the  Bombay

Bench of CAT, another draft seniority list was published on 30.06.2004.

A year-wise seniority list was published on 16.12.2004 showing names

of  those  who  were  appointed/  promoted  upto  31.12.1987.   Allegedly,

from the  said  seniority  list,  names  of  171  promotee  appraisers  were

excluded.  A draft seniority list of the appraisers appointed on or after

1.01.1988  was  circulated  on  28.04.2005.   In  the  said  seniority  list,

however, the names of 171 appraisers were included.   

12. Another original application was filed before the Madras Bench of

CAT  on  or  about  23.05.2005  challenging  the  seniority  list  dated

16.12.2004.  The said application was marked as OA No. 419 of 2005.

13. Sharath Kumar Rath [Appellant in Civil Appeal arising out of SLP

(C)  No.  17494  of  2006],  however,  filed  another  original  application

which was marked as OA No. 566 of 2005 questioning the validity of the

draft seniority list dated 28.02.2005.  

14. By  reason  of  a  judgment  and  order  dated  9.08.2005,  the  said

original  applications  were  dismissed.   A  writ  petition  was  preferred

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thereagainst  by  the  appellants,  which  by  reason  of  the  impugned

judgment dated 21.04.2006 has been dismissed.

15. Mr. J.L. Gupta, learned Senior Counsel appearing on behalf of the

appellants,  in  support  of  these  appeals  would  raise  the  following

contentions:

(i) In terms of the 1961 Rules, the promotees could be appointed

upto 50% of the total cadre strength and their seniority in terms

of  Gaya Baksh Yadav (supra), was required to be determined

on the basis of the doctrine of continuous officiation and not

otherwise.

(ii) Gaya Baksh Yadav   (supra) having clearly interpreted the 1961

Rules and having laid down the law that quota and rota  rule

would  not  apply  and  only  the  principles  of  continuous

officiation would, no seniority list could have been published in

contravention thereof.

(iii) The impugned seniority list should have been issued directly in

terms of the 1961 Rules as the same did not contemplate any

year-wise seniority list.

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(iv) The seniority list would clearly show that whereas the names of

persons stated in Serial No. 1 to 72 were mentioned in terms of

the 1961 Rules,  from Serial  No. 73  onwards  they have been

prepared on year-wise basis which is not postulated under the

1961 Rules.   

(v) 171 persons whose names appeared in the said list and who had

been officiating in the said posts on the basis of the orders of

promotion issued pursuant to the recommendations made by the

DPC, could not have been excluded therefrom.

(vi) Serial  No.  235  onwards  having  been  based  on  year-wise

seniority  is  clearly  violative  of  the  dicta  laid  down in  Gaya

Baksh Yadav (supra) which would clearly go to show that they

have been prepared on the basis of the existing vacancies and

not the number of posts.

(vii) The  seniority  list  containing  the  names  of  more  than  1500

persons  evidently  cannot  be  said  to  be  correct  as  even

according to the Central Government, the sanctioned strength

of the cadre of Appraiser is only 809.

(viii) The  Tribunal  has  wrongly  proceeded  on  the  basis  that  the

promotions had been made on an ad hoc basis and in excess of

50% quota.

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16. Mr. Vikas Singh, learned Additional Solicitor General appearing

on behalf of Union of India, on the other hand, would submit that a bare

perusal of the 1961 Rules would clearly go to show that it was for the

Board to fix the number of vacancies on a yearly wise basis keeping in

view the exigencies of work and as from 1961 onwards the percentage of

the direct recruits had gone up substantially, promotion of any person,

except the cases of filling up of the permanent vacancies granted in an ad

hoc manner, could not have been considered for the purpose of reckoning

of the seniority.

17. It  was  pointed  out  that  in  fact  from 2002  onwards,  the  Central

Government has not made any appointment against the vacancy arising

in the quota of direct recruits at all.

18. Mr. A.K. Ganguly, learned senior counsel appearing on behalf of

the respondent no. 4 urged:

(i) As  orders  of  promotion  had  been  given  by  the  zonal  DPCs

keeping in view the exigencies of the situation, the same cannot

be said to have been passed in accordance with law.   

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(ii) The decision of this Court in  Gaya Baksh Yadav (supra) must

be  interpreted  in  the  factual  matrix  of  the  matter  obtaining

herein so that those who have illegally been promoted remained

out of reckoning in the All India Seniority List.   

(iii) Although the 1961 Rules speak of cadre, the manner in which

the same should be operationalised having been laid down in

Sub-Rules (b) and (c) of Rule 4 of the 1961 Rules, must be held

to be referable only to the existing vacancies and not the cadre

strength which was required to be determined on a year to year

basis.

19. Mr. B. Kumar, learned senior counsel appearing on behalf of the

respondent  no.  3,  supplementing  the  submission  of  the  Additional

Solicitor General and Mr. Ganguly urged that the basis for the judgment

of the Tribunal as also the High Court being Exhibit L having not been

the subject matter of challenge either before the CAT or the High Court

as also before this Court,  it  is  incorrect  to contend that the appellants

were entitled to figure in the All India Seniority List only on the basis of

their  continuous officiation.  Properly read, it  was urged,  Gaya Baksh

Yadav (supra) suggests that the ad hoc promotees who were appointed in

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violation of Rule 4(c) of the 1961 Rules could not have been considered

for reckoning their seniority.

20. Mr. Venkataramani, learned senior counsel appearing on behalf of

the impleaded Association would urge that  Gaya Baksh Yadav (supra)

suggests that continuous officiation theory should be applied in cases of

promotees irrespective of the manner in which they were promoted.  On a

proper reading of the 1961 Rules, it  would contend that  there did not

exist any dichotomy between post and vacancy as number of vacancies

can only be taken into consideration in terms of the Rules.

21. Ms. Vibha Datta Makhija, learned counsel appearing on behalf of

the Group ‘A’ Appraisers (Intervenors),  would contend that this Court

should  not  interfere  with  the  impugned  judgments  as  the  matter  is

pending before the Bombay High Court.

22. It is a matter of grave concern that although the parties have filed a

large number of original applications and writ applications and the matter

had at least once been taken up upto this Court, the Union of India has

singularly failed to lay down a proper legal framework for the purpose of

determination  of  inter  se  seniority  between  the  direct  recruits  and

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promotees.  Correct facts and figures have also not been placed by the

Union of India before the learned Tribunal.  It furthermore appears that

even they are not in possession of all the relevant documents.  If anybody

is to be blamed for the messy situation, the Union of India, must take

upon it the major chunk of the blame.

23. Before us also,  some documents  have been filed only when we

insisted  as  to  what  was  the  total  cadre  strength.   We were  given  to

understand that the total cadre strength at present is 809.  Before us a

chart has also been filed showing total sanctioned and working strength

in the three groups of Appraisers from the years 1961 to 1987 and for the

years 2004 to 2008.

24. We may notice that when the 1961 Rules came into force, there

were  131  total  posts  in  total.   Out  of  total  posts  of  131,  46  were  in

Bombay, 19 were in Madras and 66 were in Calcutta, out of which the

number of direct recruits in Bombay, Madras and Calcutta were 2, 4 and

8 (totalling 14) and those of the promotees were 37, 12 and 9 (totalling

58).   Since  then,  the  percentage  of  appointments  through  direct

recruitment went up considerably and only in or about 1976 when the

sanctioned  strength  was  418,  198  direct  recruits  were  functioning  as

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against  195  promotees.   Yet  again  the  percentage  of  appointments

through  direct  recruitments  went  up  and  as  in  1987,  out  of  the  total

sanctioned strength of 456, 269 direct recruits were working as against

181 promotees.

25. We have noticed hereinbefore that we do not have any figure as to

how things proceeded from the year 1988 to 2003.  It is,  however, of

some significance to note that in the year 2004, 164 direct recruits were

working  as  against  520  promotees,  and  in  the  year  2005,  163  direct

recruits were working as against 539 promotees; the total cadre strength

being 809.

26. We have noticed hereinbefore that the situation had undergone a

sea change from 2002 onwards as no direct recruitment has taken place at

all.  Rules have also not been amended.   

27. It is in the aforementioned background we may notice the relevant

statutory rules.

Rules 3 and 4 of the 1961 Rules read as under:

“Rule 3.  

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Recruitment to the Service shall  be made by any of the following methods :-  

(a)  By  competitive  examination  in  India  in accordance with Part III of these rules.

(b) By promotion in accordance with Part IV of these rules.  

(c) By transfer  of  an Officer  in Government Service  in  accordance  with  Part  V  of  these rules.  

(d)  By  direct  recruitment  by  selection otherwise than by competitive examination in accordance with Part VI of these rules.  

Rule 4

(a)  No  appointment  shall  be  made  to  the Service or to any post borne on the cadre of the  Service  by  any  method  not  specified  in Rule 3.

(b) Subject to the provisions of Sub-rule (a), the  Board  shall  determine  the  method  or methods of recruitment to be employed for the purpose  of  filling  in  particular  vacancies  in the Service,  as  may be required  to  be filled during any particular  period and the number of candidates to be recruited by each method.  

(c)  The  percentage  of  posts  to  be  filled  by direct recruitment by competitive examination or by selection otherwise than by competitive

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examination shall not be less than 50 per cent of  the  total  cadre  of  Appraisers.  The remaining  posts  may be  filled  by  any  other method mentioned in Rule 3.”  

Rules 2 and 3 of the 1988 Rules read as under:

“2. Number of Post, Classification and Scale of  Pay:  The  number  of  the  said  post,  its classification  and  the  scale  of  pay  attached thereto shall be as specified in columns 2 to 4 of the First Schedule annexed to these rules.

3. Savings  :  Nothing  in  these  rules  shall affect reservations, relaxation of age limit and other  concessions  required  to  be provided  for the Scheduled Castes, the Scheduled Tribes, the Ex-Serviceman and other special categories of persons in accordance with the orders issued by the Central  Government  from time to  time in this regard.”

In the First Schedule appended to the 1988 Rules, in regard to the

method  of  recruitment  of  Customs  Appraisers,  it  is  stated  that  50%

recruitment would be made by promotion and 50% by direct recruitment

(partly  through  Civil  Service  Examination  and  partly  on  the  basis  of

selection  through Union Public  Service Commission  in  case of  expert

Customs Appraisers).

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28. The terminologies used in the 1961 Rules and the 1988 Rules are

different.  Broadly speaking, the 1961 Rules speak of ‘Cadre’ whereas

the 1988 Rules speak of ‘Vacancies’.   

29. Before embarking on the interpretation of the said Rules, we may

place  on  record  that,  according  to  the  learned  Additional  Solicitor

General,  there  would  not  be  much  significant  difference  between  a

situation where the seniority list was prepared on the basis of ‘Cadre’ or

where  the  same was prepared  on  the  basis  of  ‘Vacancy’ inasmuch  as

within  a  span  of  10  to  12  years,  the  direct  recruits  ordinarily  are

promoted to Group A posts and the promotees either have already been

promoted as such or retired.

30. Rule 3 of the 1961 Rules provides that the recruitment could be

from  two  sources;  one  by  competitive  examination  and  other  by

promotion.  So far as direct recruitment is concerned, it could be made if

competitive examination is held as envisaged under Part III of the 1961

Rules,  i.e.,  Rule  6  or  by  selection  otherwise  than  by  competitive

examination in accordance with Part VI, i.e., Rule 16 thereof.   

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31. So far as filling up of the posts by promotion is concerned, the

same could be done by way of promotion in accordance with  Part IV

thereof, viz., Rule 14 or by transfer of an officer in Government Service

in  accordance  with  Part  V  of  the  1961  Rules,  viz.,  Rule  15.   All

appointments were to be made strictly in terms of the method specified in

Rule 3.

32. In terms of the 1961 Rules, separate quotas for different categories

of  employees  have  not  been  fixed.   If  there  is  to  be  no  ‘quota’,

indisputably, the principles of ‘rota’ will have no application.  Rule 4 of

the  1961  Rules  empowered  the  Board  to  determine  the  method  of

recruitment  to  be  employed.   Appointment  was  to  be  made  for  the

purpose of filling up of vacancies in the services.  It will depend upon the

requirements  for  any  particular  period.   The  number  of  candidates

required to be appointed by applying the methods envisaged under Rule

3 of the 1961 Rules is again a matter which was within the domain of the

Board.   Otherwise  unguided  jurisdiction  of  the  Board,  however,  was

sought  to  be  controlled  by  clause  (c)  of  Rule  4  providing  that  the

percentage of posts to be filled by direct recruitment shall  not be less

than 50 per cent of the total cadre of appraisers.   

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33. The 1961 Rules, therefore, seek to maintain a distinction between

‘cadre’ and ‘vacancy’.  The cadre indicates  the strength in the service

which  in  turn  would  depend  upon  the  determination  by  a  competent

authority on a periodical basis including the vacancies arising for various

reasons including death, retirement, imposition of punishment, etc.   

The Board was required to take a decision on a periodical basis as

to  how and in  what  manner the vacancies  were  to  be filled  up.   The

decision of the Board was required to be based on some rational criteria.

It  was  also  required  to  take  into  consideration  the  interest  of  the

Department.  The purpose for making recruitments was to be taken into

consideration by the Board itself.   Keeping in view the fact that apart

from the restrictions on the power of the Board as contained in Clause (c)

of Rule 4 of the 1961 Rules, if a decision had been taken by it to fill up

even more than 50 per cent of the total cadre of appraisers through direct

recruitment,  in absence of any allegation of mala fide or unauthorized

purpose  or  fairness  or  reasonableness  on  its  part,  the  same  cannot

ordinarily  be  called  in  question.  Jurisprudentially  there  exists  a

distinction between post and vacancy.  But posts have to be filled having

regard to the provisions contained in the 1961 Rules.  It is to be made

workable.  The practice followed by the Board for a number of years

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cannot be set at naught by a stroke of pen.  Let us consider the matter

keeping in mind the legal principles as noticed heretobefore.   

34. Indisputably, promotion used to take place on a zonal basis.  The

direct recruits get entry in Class II services.  They are appointed on an

annual  basis.   Whereas  one  is  a  selection  through  competitive

examination, the other is by direct recruitment by selection.   

Recruitment  process  is  carried  out  by the  Union  Public  Service

Commission.  The entry in service is in a post.  However, when it comes

to filling up of a post, the same would depend upon existence of vacancy.

Rule 4 provides for the method to be adopted therefor.   Clause (c) of

Rule 4 of the 1961 Rules puts a rider thereupon, namely, how to do it.

The mandate being that the percentage of direct recruitment shall not be

less than 50%.  On year to year basis, a requisition has to be made to the

Union  Public  Service  Commission  intimating  them  the  number  of

vacancies  available.   Keeping  in  view  the  nature  of  competitive

examination, some posts may still remain vacant.  Even in a case where

there  are,  for  example,  one  hundred  vacancies,  the  number  of  direct

recruits available may be much less.  Other exercises for recruitment then

have to be resorted to for filling up of the rest of the vacancies.  It is only

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for that purpose, the Government takes the yearly vacancy position.  For

the said purpose, the quota has to be kept flexible.  As the number of

requisitions may exceed the number of posts which could be filled up

through  direct  recruits,  indisputably,  the  remaining vacancies  must  be

filled up in terms of the Rules.  Determination of the mode and manner

therefor being flexible, the essential features of the recruitment process

cannot solely depend upon the sanctioned strength, i.e., cadre strength.

For  the  said  purpose,  determining  working  strength  will  have  some

relevance.  We have noticed hereinbefore that the said system has been

followed for a number of years. The exigibility of the said method is not

in  question.   The  exercises  undertaken  year  after  year  remained

unchallenged.

35. Submission of Mr. Gupta, that at no point of time, the promotees

have  exceeded  50  per  cent  of  the  cadre  strength  must  be  considered

keeping in view the aforementioned statutory provisions.  Promotees did

not  have  any  fixed  quota.   Had  there  been  a  quota  fixed  for  the

promotees, the matter might have been different.  Various decisions of

this Court whereupon reliance has been placed, thus, cannot be said to

have any application whatsoever is a case of this nature.  But, when no

quota  is  fixed  and  from 1976  onwards  there  has  been  a  progressive

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increase in the percentage of the direct  recruitments,  it  cannot be said

that for the purpose of giving effect to the 1961 Rules, it was necessary

to consider the question of exceeding or non-exceeding the 50 per cent

quota.   

No doubt, this Court in Gaya Baksh Yadav (supra) mandated that

seniority had to be counted from the date of continuous officiation.  But

such a direction was issued keeping in view the fact situation obtaining

at that stage.  For the purpose of giving effect to continuous officiation

doctrine, the entry to the service must be in accordance with law.  If in

particular  years,  having  regard  to  the  decision  of  the  Board,  the

percentage  of  direct  recruits  were  more  than  50%,  a’  fortiori  the

percentage of the promotees would come down.  If they were recruited in

excess of the vacancies which were required to be filled up in terms of

the decision of the Board, the percentage of the promotees for the said

year was required to be reduced.

36. Whereas  all  appointments  in  the  direct  recruitment  quota  being

regular in nature, their seniority was to be counted from the date of their

appointment, but so far as the promotees who had been promoted on ad

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hoc  basis  are  concerned,  they  could  not,  in  terms  of  the  Rules,  rank

senior to the direct recruits.

37. Strong reliance has been placed by Mr. Gupta on the decision of

this  Court  in  Direct  Recruit  Class  II  Engineering  Officer  Association

(supra).  Therein, this Court had no occasion to consider a situation of

this  nature.   We may, however,  notice  Clauses  (A),  (C) & (E) of  the

directions  issued  by  this  Court,  which  have  some  bearing  on  the

controversy, which are in the following terms:

“(A) Once an incumbent is appointed to a post according  to  rule,  his  seniority  has  to  be counted from the date of his appointment and not according to the date of his confirmation.

The corollary of the above rule is that where the initial  appointment  is  only  ad  hoc  and  not according  to  rules  and  made  as  a  stop-gap arrangement, the officiation in such post cannot be  taken  into  account  for  considering  the seniority.

(C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if  rules  are  framed  in  this  regard  they  must ordinarily be followed strictly.

(E) Where the quota rule has broken down and the appointments are made from one source in excess  of  the  quota,  but  are  made  after

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following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other  source inducted in the service at  a later date.”

38. As the ratio fixed for recruitment from different sources was not

fixed,  strict  adherence  to  the  principles  enunciated  therein  was  not

possible to implement the same in a case of this nature.  Similarly, no

quota rule having been fixed, the question of breaking down thereof shall

not apply.

39. Therefore, promotions may have to be continued whether on an ad

hoc  basis  or  otherwise  so  as  to  enable  the  Department  to  function

effectively and efficiently.  The promotees may continue in their service

but  when a question arises in regard to determination of seniority, the

statutory rules must be given effect to.

40. In Gaya Baksh Yadav (supra), this Court opined:

“…Both would be entitled to placement in the joint  seniority  list  on  the  basis  of  their continuous officiation.”

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This is subject to Rule 4(a) of the 1961 Rules.

41. In Gonal Bihimappa v.  State of Karnataka & Ors. [(1987) 3 SCR

885], this Court held:

“…In the present batch of cases the law being clear  and particularly the  mandate  in  the rule being  that  when  recruitment  takes  place  the promotee  has  to  make  room  for  the  direct recruit,  every  promotee  in  such  a  situation would  not  be  entitled  to  claim  any  further benefit  than  the  advantage  of  being  in  a promotional post not due to him but yet filled by him in the absence of a direct recruit….”

42. We, therefore, do not find any apparent illegality in the judgment

of  the  High  Court.   As  we  have  interpreted  the  1961  Rules  on  the

touchstone of the decision of High Court in Gaya Baksh Yadav (supra),

we do not think it necessary to deal with the individual submissions of

the learned counsel for the parties.

43. We may, however, observe that we have not gone into the merit of

the matter which is pending before the Bombay High Court.

44. In view of our order  aforementioned,  no separate order  need be

passed in IA No. 3 as well as in IA Nos. 5 and 6.

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45. For the reasons aforementioned, there is no merit in these appeals

which are dismissed accordingly.  No costs.

………………………….J. [S.B. Sinha]

..…………………………J. [V.S. Sirpurkar]

New Delhi; May 16, 2008

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