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PETITIONER: G.S. LAMBA & ORS.

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT22/03/1985

BENCH: DESAI, D.A. BENCH: DESAI, D.A. KHALID, V. (J)

CITATION:  1985 AIR 1019            1985 SCR  (3) 431  1985 SCC  (2) 604        1985 SCALE  (1)563  CITATOR INFO :  E&R        1985 SC1605  (16)  R          1986 SC 638  (12,15,16,20)  F          1987 SC 424  (24)  F          1987 SC 716  (13)  RF         1987 SC2359  (17,18)  D          1988 SC 535  (24)  APL        1989 SC 278  (19)  F          1990 SC1256  (22,32)

ACT:      Constitution of India, 1950 Articles 14 and 16      Service-Constitution of-Recruitment  from more then one source and  quota prescribed  for each  source-Quota rule of recruitment  inter  linked  with  rota  rule  of  seniority- Deviation and  departure in  implementation of service rule- Interference whether artises.      Indian Foreign Service, Branch ’B’ (Recruitment, Cadre, Seniority and  Promotion) Rules 1964, Rules 13,21 (4) and 25 (i) (ii)  & 2F  and 29(a)  Promotees  and  direct  recruits- Fixation  of   seniorty-Promotees  promoted  to  substantive vacancies on  temporary basis-Continuous officiation whether confers advantage of seniority over later recruits.      Power of  relaxation of statutory service rules-Failure to record reasons-Whether quota fixed for direct recruitment can be relaxed.

HEADNOTE:      The Indian Foreign Service Branch ’B’ was constitued in 1956. The  statutory rules  Indian  Foreign  Service  Branch (Recruitment, Cadre,  Seniority and  Promotion) Rules,  1964 came into force from May 6, 1964. Commencing from the advent of the  Rules, recruitment  from three sources were made (i) direct  recruitment   on  the   result  of   a   competitive examination held  by the  Union Public  Service  Commission, (ii) substantive  appointment of  persons  included  in  the selective  list   promoted  on   the  basis   of  a  limited competitive examination  held  by  the  U.P.S.C.  and  (iii) Promotion on the basis of seniority.      Rule 13  provided  for  recruitment  to  posts  in  the integrated Grades  II and III of the General cadre, and that temporary  vacancies  shall  be  filled  by  appointment  of persons included  in the  select list.  Rule 21  laid down a

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general provision  for fixing  of seniority,  while sub-rule (4) thereof,  provided that persons promoted or recruited on the basis  of an  earlier selection or recruitment, shall be senior to  those promoted  or recruited  on the  basis of an earlier 432 selection or  recruitment, shall be senior to those promoted or recruited  on the  basis of  a  subsequent  selection  or recruitment. Rule  22 to  24 provided for seniority inter-se of direct  recruits,  and  seniority  inter-se  of  officers promoted to a grade on the recommendations of a departmental promotion committee. Rule 25 provided for seniority inter-se of the officers appointed to a grade from different sources.      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: (i) 1/6th of the  substantive   vacancies  to  be  filled  in  by  direct recruitment, (ii)  33 1/3  % of  the remaining  5/6  of  the vacancies to  be filled  on the  basis  of  results  of  the limited competitive  examination, and  (iii)  the  remaining vacancies to  be filled  in by  promotion on  the  basis  of seniority.      The petitioners  in the Writ Petitions were selected by the Union  Public Service Commission according to the merits 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 in 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 integrated 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.      The petitioners  assailed the aforesaid seniority lists as violative  of the constitutionally guaranteed equality of opportunity in  the matter  of public  service in as much as direct recruits  who came  into the  service long  after the departmental promotees  were regularly  promoted  have  been assigned seniority  over the  earlier promoted  departmental promotees. It was further contended, that the seniority list of June 30, 1983 was objectionable as it leaves blank spaces for future  recruits either as direct recruits or by limited departmental examination  and who  are yet  to come into the service to be placed over promotees like the petitioners who were already in service for a long time. The seniority lists having been  drawn up on the principles of quota-rota and on the facts  of the case and the relevant rules were violative of Articles 14 and 16.      The  writ  petitions  were  contested  by  the  Central Governments contending  that the  seniority lists were drawn up in  accordance with the principles governing seniority in the grade  as per  Rule 25,  and that  were recruitment to a service was  from more  than one  source and each source was assigned a  quota of  vacancies, the  seniority  was  to  be determined according  to rota  keeping in view the available vacancies to  each source  While departmental  promotion  is made  after   the  Departmental  Promotion  Committee  makes recommendations  recruitment  through  examination  is  time consuming there is a time gap between publication of results and  joining   of  candidates   and  it   is  therefore  not practically possible  to strictly adhere to the quota in any particular year. The Administration

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433 Overcame this  difficulty by  rotation of vacancies ensuring that over  a period  of ;  time the required quota was fully met. Blank spaces were left in the seniority list for giving seniority to  persons who  have still not joined service and are likely  to join at an uncertain date. This process would not push down the seniority of the petitioners as they would occupy the same serial No. in the seniority list.      When the  Writ Petitions  were being  heard, Respondent No. 26  appeared and  contested the claim of the petitioners contending that  all Assistants  in Grade  IV who put in the required number  of  years  of  service  were  eligible  for participating  in   the  limited  departmental  examination, promotions based  on the result of such an examination would therefore not  be violative  of Art.  14 Delay in holding of the examination cannot work to the disadvantage of those who had taken  the examination  and qualified  for promotion and therefore they should be accommodated in the vacancies which had come  into existence  and where  available for the quota from the  date the  vacancies came  into existence.  The two seniority lists  were consequently  valid and  in consonance with the statutory rules. Allowing the Writ Petitions, ^      HELD: (1)  The impugned  seniority lists  challenged by the petitioners  have been  drawn up  in  violation  of  the provisions of  Arts. 14  and  16  of  the  Constitution  and therefore they are quashed. The first respondent is directed to draw  up fresh  seniority list.  All  promotions  granted since the filing of the petitions must be readjusted. [460B- C]      In the  instant case,  direct recruitment  had not been made for years. Limited competitive examination had also not been held  for years.  Promotions from  the select  list had been presumably  in excess  of the  quota but  the promotees were appointed  to substantive  vacancies in the service and had been holding the posts as in the case of the petitioners for over  6 to  8 years.  The promotions  were not styled as temporary, adhoc  or stop  gap. The impugned seniority lists were drawn  up by rotating vacancies for each source, and if no recruitment  was made  from that  source in a given year, the place in the list available to that source was kept open and a later recruit at any distance of time from that source would be  assigned that  place over persons who were already recruited  from  other  sources  and  would  be  working  in substantive vacancies.  The direct  recruit  thus  scores  a march over  a promotee.  The seniority  list is consequently violative of Articles 14 and 16 and therefore deserves to be quashed. [453E; C-D]      (2) Once  the  promotees  were  promoted  regularly  to substantive vacancies  even if  temporary unless there was a chance  of   their  demotion   to  the  lower  cadre,  there continuous officiation confers on them an advantage of being senior to  the later  recruits under  Rule 21 (4). If by the enormous departure  or by the power to relax, the quota rule was not adhered to, the rota rule 434 for inter-se  seniority  as  prescribed  in  Rule  25(i)(ii) cannot be  given effect,  In the  absence of any other valid principle  of   seniority  it   is  well   established  that continuous officiation  in the  cadre, grade or service will provide a  valid principle of seniority. The seniority lists having not  been prepared on this principle are liable to be quashed and set aside. [459G-H; 460A]      (3) Where  recruitment to  a service or a cadre is from

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more  than   one  source,   the  controlling  authority  can prescribe  quota   for  each  source.  where  the  quota  is prescribed, a  rule of  seniority by  rotating the vacancies can be  a valid  rule for  seniority. However if the rule of seniority is  inextricably inter  twined with the quota rule and there  is enormous  deviation from  the quota  rule,  it would be unjust, inequitous and unfair to give effect to the rota rule. [456B-C]      A. Janardhana  v. Union  of India  & Ors.  [1983] 2 SCR 936. S.  Gupta v Union of India [1975] Suppl. SCR 491., A.K. Subramana v.  Union of  India [1973]  2 SCR 979., P.S. Mahal and Others  v. Union of India & Ors. AIR 1984 SC 1291., O.P. Singla and Anr. v. Union of India & Ors. AIR 1984 SC 1595, S C. Jaisinghania  v. Union  of India & Ors. [1967] 2 SCR 703, Bishan Sarup Gupta etc v. Union of India & Ors. 11975] I SCR 104, referred to.      (4) What is known in service Jurisprudence as seniority according to  continuous officiation  in the  cadre from the grade has been statutorily recognised in Rule 21(4). This is in tune  with fairplay  and justice  and ensures equality as mandated by Art. 16. [454E]      (5) A  block of  recruits in  a given  year coming from three  independent   sources  may   be  integrated  inter-se according to  quota and rota. The block in a subsequent year would be  always junior  to the  bloc  of  recruits  in  the earlier years. This is how Rules 21(4) and 25(i) (ii) can be harmoniously read and it is unquestionable that they operate in two different situations and both have to be given effect to. [455A-B]      (6) Rule  29(A) confers  power  to  relax  any  of  the provisions of  the 1964 Rules and this also comprehends Rule 13(1) which prescribes quota. When the power to relax any of the provisions  is exercised, the Controlling Authority must be of the opinion that it is necessary of expedient so to do for reasons  to be  recorded in  writing. Failure  to record reasons will  not invalidate the exercise of power. Once the power to  relax  a  mandatory  rule  exists  and  action  in derogation of  the rule has been repeatedly taken year after year, it  would be  a permissible  inference that the action was taken  in relaxation  of the  rule for  which the  power exists. [457B-C]      Bachand Singh  and Anr. v. Union of India & Ors. [1972] 3 SCR 898., Montreal Street Railway Company v. Normandi, AIR 1977 P.C.  142., State  of U.P.  v. Manboden  Lal Srivastava [1958] SCR  533, N.K.  Chandan and  Ors. v. State of Gujarat [1977] I SCR 1037, referred to. 435

JUDGMENT:                    ORIGINAL JURISDICTION       Writ Petition (Civil) No. 13248 to 13257 of 1983       (Under Article 32 of the Constitution of India)      Madan Bhatia and Sushil Kumar for the Petitioners.      N.C. Talukdar,  M.K Ramamurthy,  R.N. Poddar,  A.K Nag, and M.A. Rehman for the Respondents.      Respondent No. 26 in person.      The Judgment of the Court was delivered by      DESAI, J. We are back to square one. The same rigmarole of  unending  disputes  as  to  inter-se  seniority  between promotees, direct recruits and recruits as per the result of the limited  competitive examination  with quota-rota as the guiding star  for determining  inter se seniority are put in the lap of The Court.

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    This time  the service  is the  Indian Foreign  Service Branch  ’B’   (’IFS  ’B’   for  short).   This  service  was constituted by the memorandum of Govt. Of India, Ministry of External Affairs  dated  July  16,  1956.  The  service  was consisted of  two cadres; a general cadre and two sub cadres 1) Stenographer  sub-cadre and  2) Cypher  sub-cadre forming what is styled as special cadre. The general cadre comprises 6 grades. Various provisions were made in the Memorandum for recruitment to  various grades.  Para V provided for general conditions of  eligibility for appointment in the service at the initial  constitution. Para  V provided that recruitment to grade  l, II and III of the general cadre will be made on the recommendations  of the  Senior Selection Board of which the Chairman  will be  the  Chairman  of  the  Union  Public Service Commission or his nominee. Selection to other grades will be  made by  the Junior Selection Board in consultation with Union Public Service Commission. Para VIII provided for inter se  seniority of persons selected for grades I, II and III of  the general  cadre. Appendix  to the Memorandum sets out sanctioned strength of posts in various grades of lFS B’ and the scales of pay attached to each grade.      Petitioners were  selected by  the Union Public Service Commission  according   to  the   merits  obtained   at  the examination  conducted   for  the   purpose  in   1955   for appointment to  the post of Assistant, and were allocated to the Ministry of External Affairs. After the 436 initial constitution of the service in 1956 petitioners were offered an option whether they would like to join IFS ’B’ in Grade lV  at the  time  of  its  initial  constitution.  The memorandum constituting  the service  provided  that  future maintenance of the service would be governed by the rules to be  promulgated   for  the  purpose  by  the  Central  Govt. Accordingly by  its notification dated May 6,1964, the Govt. Of India,  Ministry of  External Affairs  in exercise of all the powers conferred by Art. 309, promulgated Indian Foreign Service  Branch   ’B’  (Recruitment,  Cadre,  Seniority  and Promotion) Rules,  1964 (’1964  Rules’ for  short).  By  the afore-mentioned rules, grades II and Ill were integrated and the grade  was styled  as integrated  grade II  and  IIl  in general cadre.      Petitioners came to be "promoted between 1976-1979 from grade IV  to integrated grade II and III. The Govt. Of India published a  seniority list  of officers  in the  integrated grade Il and III of the general cadre of ’IFS ’B’ as on June 25,1979. Petitioners  contend that  the  seniority  list  is violative of  the constitutionally  guaranteed  equality  of opportunity in  the matter  of public  service in as much as direct  recruits  who  came  into  service  long  after  the departmental  promotees   were  regularly  promoted  to  the aforementioned grade  have been  assigned seniority over the earlier promoted  departmental promotees.  Before objections taken by  the petitioners  to the  seniority list were dealt with the  Central Govt.  in supersession  of seniority  list dated June  25,1979 published  another seniority list of the officers in  integrated grade  II and  III of  IFS ’B’ as on June 30,1983.  Petitioners contend  that the  seniority list dated June 30,1983 suffers from the same vice and is all the more objectionable  inasmuch as  it leaves  blank spaces for future recruits  either as  direct recruits  or  by  limited departmental examination  and  who  are  yet  to  come  into service to be placed over promotees like the petitioners who have  already   been  in   service  for  a  long  time.  The petitioners contend that the impugned seniority list appears to have  been drawn  up on  the principle  of quota-rota and

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that in  the facts of this case and the relevant rules it is violative of Art. 14 and 16 of the Constitution. Petitioners also assert  that  if  Rule  25(13  (ii)  is  not  construed harmoniously with Rule 21 of the 1964 Rules, Rule 25(1) (ii) would be  violative of the guaranty of equality enshrined in Art. 16.  To be  precise, the contention is that where there is recruitment  to a cadre from more than one source and the recruitment has  to conform to the quota prescribed for each source, simultaneously  interlinking the  inter-se seniority in respect 437 Of recruits  entering service  from different sources to the quota for  . each  source, if  the quota  reserved  for  any source is  not filled  in for  a long time and the vacancies allotted to the source are carried forward and the later day recruits from  that source  are given  deemed seniority over the earlier  recruits from  the other  sources, it  has  the pernicious tendency  to give  an undeserved  advantage to  a later recruit  over the  earlier recruit  and  it  would  be violative of  Arts. 14 and 16. If it is held that Rule 25(1) (ii) has  precedence over  Rule 21,  then Rule 25(1) (ii) is unconstitutional  inasmuch  as  failure  to  recruit  enough number of  persons to  the extent  of the quota reserved for the source in a reasonable time, in the absence of any power to carry  forward vacancies  available to  that source,  the rota rule  of seniority would be discriminatory in character and lead  to denial of equality in the matter of appointment to public  service. It was submitted in such a situation the rota rule  would break  down under  the  weight  of  massive departure from the quota rule, and the seniority rule. being inextricable inter-twined  with  the  quota  rule  if  given effect to  would be  unjust, unfair and inequitous and would be violative of Art. 14.      The Under Secretary in the Ministry of External Affairs filed an affidavit-in-opposition. Averment in Para II of the petition that  petitioners were working as permanent section officers in  the integrated  Grade II and III in the general cadre of  the IFS  ’B’ was not controverted. After referring to Rule  13 of  the 1964  Rules, it was stated that both the impugned seniority  lists were  drawn up  in accordance with the principles  governing seniority in the grade as per Rule 25. It  was stated  that where  recruitment to  a service or cadre is  from more  than one  source  and  each  source  is assigned a  quota of  vacancies, in  order to  do justice to recruits from all sources, the seniority is to be determined according to rota keeping in view the available vacancies to each source. It was conceded that in integrated grade II and III, the  recruitment is  done from three different channels and quotas  have been  fixed for all these channels, but the recruitment is  not done at the same time. While the depart- G mental  promotion is  made  after  departmental  promotion committee makes  recommendations,  the  recruitment  through examination is  time-consuming because  there is  a time gap between publication of results and joining of candidates. It was further  stated that  it is  not practically possible to strictly adhere  to the quota in any particular year because candidates nominated  by the Union Public Service Commission may even decline to join service and additional candi 438 dates can be taken from subsequent examinations only. It was further submitted  that the  administration  overcomes  this difficulty by adhering to the quota by rotation of vacancies ensuring that  over a  period of time, the quota requirement is fully  met. The  two impugned seniority lists were sought to be  sustained on  the footing that by and large quota was

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adhered to  and a slight delay or variation in time schedule would not permit an inference that as the quota rule was not adhered to,  the rota  rule of  seniority  cannot  be  given effect. Replying  to the averments made in the petition that vacancies allotted  to each  source and not filled in at the relevant time  were being carried forward for years and that when the carried forward vacancies were filled, the recruits were given retrospective deemed date for seniority relatable to the  coming into existence of the vacancy for that source without such a provision being found in ’the relevant rules, it was  stated that  vacancies have been carried forward, if at all because of the non-availability of the candidates and in the  absence of  a  stipulation  in  the  relevant  rules permitting diversion of vacancies from one quota to another, it was  inevitable that the quota of vacancies allotted to a source have to be carried forward. Replying to the averments that in  the impugned  seniority list blank spaces have been left open for giving seniority to persons who have still not joined the  service and are likely to join at some uncertain date, it was submitted that this process would not push down the seniority  of the  petitioners as  they would occupy the same serial No. in the seniority list.      When the  matter was  being heard  in  the  Court,  one Radhey Shyam  Aggarwal, respondent  No. 26  in the  petition appeared and  filed his affidavit. He was recruited to Grade IV IFS  ’B’ in 1964 through the open competitive examination held by  Union Public Service Commission. He was promoted to integrated Grade  II and  llI on  the result  of the limited departmental  competitive  examination  held  by  the  Union Public Service  Commission  in  1977.  He  stated  that  all Assistants in  the Grade  lV who  have put  in the  required number of years of service are eligible for participating in limited departmental examination and that as the equality in this behalf  is guaranteed  to all those similarly situated, such holding  of examination  and  promotion  based  on  the result  of  the  examination  would  not  violate  Art.  14. Referring to  Rule 13, he stated that the recruitment to the integrated Grade  II  and  III  is  from  three  independent sources with  quota of vacancies assigned to each, the quota should be  more or  less adhered  to so  as not  to give any unintended benefit 439 to individuals  entering through  the source  of recruitment over others.  It was stated that accepting the contention of the petitioner would tantamount to giving unintended benefit to  the   promotees  promoted   in  excess   of  the   quota temporarily. It  was further stated that delay in holding of the examination cannot work to the disadvantage of those who have taken  the examination  and qualified for promotion and therefore they  should be  accommodated in  the ‘  vacancies which have  come into  existence and  were available for the quota from  the  date  the  vacancies  came  into  existence notwithstanding the  fact that the examination was held at a later date  and the  results were  published still later and appointment was made thereafter. In short, he submitted that the two  seniority lists  were valid  and in consonance with the statutory rules.      Before we  proceed to  examine the  contention  of  the petitioners on merits, it is necessary to refer to the rules of recruitment and seniority relevant to Integrated Grade II and III.  Rule 13 which provides for recruitment to posts in the Integrated  Grade II  and III of the general cadre reads as under:           "13. Recruitment to posts in the Integrated Grades      II and III of the General Cadre:

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    1.   (a)  One sixth  of the  substantive vacancies,  in                the Integrated  Grades  II  and  III  of  the                General  Cadre  shall  be  filled  by  direct                recruitment on  the  results  of  competitive                examinations held  by the Commission for this                purpose from  time  to  time.  The  remaining                vacancies shall  be filled by the substantive                appointment of persons included in the Select                List for  the Integrated Grades II and III of                the General Cadre. Such appointments shall be                made in order of seniority in the Select List                except when,  for reasons  to be  recorded in                writing, a  person is  not considered fit for                such appointment in his turn. G           (b)  Temporary vacancies  in the Integrated Grades                II and  IlI of  the General  Cadre  shall  be                filled by the appointment of persons included                in the  Select List for the Integrated Grades                II  and   III  of   the  General  Cadre.  Any                vacancies  remaining   unfilled  there  after                shall be  filled  first from among the person 440                approved for inclusion in the Select List and                there after by the temporary promotion on the                basis of  seniority subject  to the rejection                of the  unfit of  permanent officers of Grade                IV the  General Cadre  and Grade  II  of  the                Cypher Sub-Cadre  who have  rendered not less                than eight  years of  approved service in any                one grade  or the  two Grades  and are within                the range of seniority. Such promotions shall                be terminated  when persons  included in  the                Select List  for the Integrated Grades II and                III of  the General Cadre become available to                fill vacancies.      (2)  The Select List referred to in clauses (a) and (b)           of sub rule (l) shall be prepared in the following           manner:           (i)  33-1/3 per cent of the quota for inclusion in                the Select  List shall  consist of persons to                be  promoted   on  the  basis  of  a  limited                competitive examination  to be  held  by  the                Commission for  this  purpose  from  time  to                time; and           (ii) the rest of the promotion quota for inclusion                in the  Select List  shall consist of persons                to be  promoted on  the  basis  of  seniority                subject to  the rejection of the unfit of the                officers of the Grade IV of the General Cadre                and Grade II of the Cypher Sub-Cadre who have                rendered  not   less  than   eight  years  of                approved service in any one Grade or both the                Grades.           Provided that  if any  person appointed  to such a      Grade is  considered for  promotion to  the  Integrated      Grades II  and III  of the  General Cadre in accordance      with the  provisions  of  this  sub-rule,  all  persons      senior -  to him in that Grade shall also be considered      notwithstanding that  they may  not have rendered eight      years of  approved service  in that Grade or Grades, as      the case may be.      (3)  The Controlling authority shall, from time to time           lay.  down   the  ratio  in  which  the  available           vacancies in the 441

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    Integrated Grades II and III of the General Cadre shall      be filled from Grade IV of the General Cadre and Cypher      Assistants of the Cypher Sub-Cadre. This ratio shall be      fixed, as far as possible, on the basis of the relative      strength of the respective cadre posts.      Illustration:  If the  strength  of  Grade  IV  of  the                     General Cadre  is 720  and that  of  the                     Cypher Assistants  of  the  Cypher  Sub-                     cadre 120, the ratio for promotion shall                     be 6: 1."      Chapter  III   contains  provisions   for  fixation  of seniority in  different grades.  Rule 21 lays down a general provision for  fixing of  seniority. Sub-rule 4 is relevant, which reads as under:      "21. (4) Subject  to the other provisions of this rule,           persons promoted or recruited earlier on the basis           of  earlier  selection  or  recruitment  shall  be           senior to those promoted or recruited on the basis           of subsequent selection or recruitment." Rule 22,  23 and 24 provide for seniority inter-se of direct recruits, seniority  inter-se of  officers promoted  on  the results of  limited competitive  examination  and  seniority inter-se  of   officers  promoted   to  a   grade   on   the recommendations  of   a  departmental   promotion  committee respectively but  amongst themselves.  Then  comes  Rule  25 which provides   for  seniority  inter-se  of  the  officers appointed to  a grade  from different  sources. It  reads as under:      "25. Seniority  inter-se of the officers appointed to a      Grade from different sources.      (1) Integrated Grade 11 & III of the General Cadre.      (i)  The eligible  persons in  Grade IV  of the General           Cadre and  Cypher Assistants  of  the  Cypher  Sub           Cadre shall  be arranged  in separate lists In the           order  on   their  relative   seniority  in  their           respective  Grades.  Thereafter  the  Departmental           Promotion  Committee   shall  select  persons  for           promotion from each list upto the prescribed quota           as indicated  in  rule  13  and  arrange  all  the           persons  selected   from  the   two  lists   in  a           consolidated order of merit which 442           will  determine   the  seniority   of  persons  on           promotion to  Integrated Grades  II and III of the           General Grade      (ii) Direct   recruits   to   a   Grade   and   persons           substantively appointed  to  the  Grade  from  the           Select  List  for  the  Grade  shall  be  assigned           seniority inter-se  according  to  the  quotas  of           substantive vacancies  in the  Grade reserved  for           direct recruitment  and the appointment of persons           included in the Select List, respectively " 1964 Rule  have been  enacted in exercise of power conferred by the  proviso to Art. 309 of the Constitution and are thus indisputably  statutory   in   character.   Recruitment   to Integrated Grade II and III of the general cadre is from two independent sources  namely (i)  direct recruitment  on  the result of a competitive examination held by the Union Public Service Commission  for this  purpose from  time to time and (ii) by  the substantive  appointment of persons included in the Select  List for  Integrated Grade  II and  III  of  the General Cadre.  The Select  List for  the purpose of filling vacancies by substantive appointment has to be prepared from persons coming  from two  independent sources as required by Rule 13(2)  namely persons  to be promoted on the basis of a

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limited  competitive   examination  to     be  held  by  the Commission for  this purpose and promotion from Grade IV for inclusion in  the Select  List on  the basis of seniority in Grade IV  of the  General Cadre  and Grade II of Cypher sub- cadre, who  have rendered  not less than 8 years of approved service  in   any  grade  or  both  the  grades.  In  short, recruitment to  Integrated Grade  II and  III will  be  from three sources:  (i’ 1/6th of the substantive vacancies to be filled  in   by  direct  recruitment  on  the  result  of  a competitive examination  to be  held  by  the  Union  Public Service Commission,  (ii) 33  1/3% of the remaining 5/6th of the vacancies  had to  be filled  in by bringing them on the Select List  on the  basis  of  the  results  of  a  limited competitive examination  and the  remaining  vacancies to be filled in  by promotion  on the basis of seniority from Grad IV of  General cadre  or Grade  II of  Cypher cadre who have rendered not less than 8 years of approved service. There is thus recruitment  to Integrated  Grade II and III from three independent sources  and a  quota is  fixed for  recruitment from each  source. The   quota  as here in above set out was introduced by  amending Rule  13 as,  per notification dated February 12  1975. Earlier the quota for direct recruits was 25% of the vacancies for a period of 5 years and 443 then 33  1/3% of  the vacancies. The quota for the other two sources  was 25% of the remaining vacancies on the result of limited competitive examination and the balance to be filled in by  promotion according to seniority in the feeder grade. Thus the quota for direct recruits was raised from 25% to 33 1/3% and  reduced to 1/6th of the vacancies i.e. 162.3%. The impugned  seniority   lists  have  been  drawn  up  rotating vacancies for each source and if no recruitment is made from that source in a given year, the place in the list available to the  source as  per rotation  is kept  open and  a  later recruit at  any distance  of time  from that  source will be assigned that  place over  persons who are already recruited from other  sources and  would  be  working  in  substantive vacancies. The  net effect  of a  drawn-up seniority list in this manner  is that  a promotee in a given year even within its quota  may go down to a much later direct recruit as the place in rotation is kept open for him without limitation of time. This is the crux of the matter.      A bird’s  eye-view of  the  relative  position  of  the petitioners   who are  all departmental promotees in the two impugned seniority lists would bring into focus the contours of controversy. -------------------------------------------------------- S.No. of the   Name of the Place in the    Place in the petitioners   petitioner  1979 senior-   1983 senior-                           ity list       ity list --------------------------------------------------------- 1               2                  3              4 --------------------------------------------------------- 1.             G.S. Lamba          397            163 2.             S.K.Chibber         380            147 3.             Kul Bhushan         375            144 4.             I.S. Ailawadi       398            164 5.             K.D. Avdhani        379            146 6.             Q L. Khanijow       387            153 7.             Ranvir Chawla        -             244 8.             N.D. Kharbanda      422            181 9.             V.N. Sharma         483            222 10.            M. Jayaraman         463           208 ------------------------------------------------------- 444

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    It will  be presently  pointed out that the petitioners whose placements are indicated here and who have entered the service would  be junior  to  those  who  enter  later  into service and would be placed at the vacant places in the list which are  for purpose  of clarity  enumerated hereunder. It will show that those who are yet to come would become senior to those in service and have entered service number of years ahead to  them. And  one is  not sure at what length of time the few entrants will enter service,      The  inequity,   if  it   can  be   so  called  may  be demonstrably pointed  at this  stage with  reference to  the seniority list  of 1979. Placements in this list at Sr. Nos. 294, 300,  305, 312, 318, 324, 330, 336, 342, 348, 354, 360, 366, 372,  378, 384, 390, 396, 402, 408, 414, 420, 426, 432, 438, 444,  456, 462,  468, 474,  480 and  486 have been kept open or  vacant and  are to  be filled in at a later date by assigning  seniority   to  direct   recruits  who  would  be recruited to  the service  for the first time after June 25, 1979 relevant  to which  seniority list  was drawn up. These later recruits  at some  unknown future  date would  score a march by  nearly a  hundred steps  over the  one at  No. 486 already  in   service  by   regular   promotion.   Similarly placements at  Sr. Nos.  377, 381,  385, 389, 392, 395, 399, 403, 406,  410, 413, 417, 421, 424, 428, 431, 435, 439, 442, 446, 449,  453, 457, 460, 464, 467, 471, 475, 478, 482, 485, and 489  have been  kept vacant  for recruits  who would  be recruited  to   the  grade   on  the  result  of  a  limited departmental examination  which would be held after June 25, 1979. In  other words,  whose who  would come  into  service after June  25,  1979  either  from  the  source  of  direct recruitment  or  from  the  source  of  limited  competitive examination would  fill in  the above  vacant places  in the seniority list  and thereby  score a  march over  others who have not only been in service on June 25, 1979 and have been substantively  promoted  and  have  become  members  of  the service and who have been included in the seniority list for the service,      Turning now  to the impugned seniority list of June 30, 1983  which   for  all  practical  purposes  supersedes  the seniority list of June 25, 1979, placements at Sr. Nos. 170, 175, 179,  184, 189, 193, 197, 203, 209, 215, 221, 227, 233, 239 have  been kept vacant and these  places would be filled in by direct recruits who would join at some future date not specified, after June 30, 1983. The disturbing 445 feature is that when direct recruitment will be made at some future date  after June  30, 1983, the first vacant place at Sr. No.  170 would  be assigned  to the first in the list of direct recruits  and even  though he would enter the service for the  first time  somewhere after June 30, 1983, he would be senior to the departmental promotee holding a substantive post at Sr. No. 171 Sh. D. R. Goel from February 2, 1978 and he would  also be  senior to  a recruit  from the  source of limited competitive  examination recruited  on November  13, 1979 and  placed in  the seniority  list at Sr. No. 172, one Shri Gurcharan  S. Singh. It would be advantageous to recall here that  the eligibility  criterion  for  appearing  at  a competitive examination  to be  held by Union Public Service Commission for  direct recruitment  as per  Rule 20  of 1964 Rules would  be in accordance with the regulations made from time to  time by  the Government  in consultation  With  the Union Public  Service Commission  wherever such consultation is necessary.  The regulations  were not  referred to in the course of  hearing of  these petitions. But if the criterion was to  be a  graduate’s degree  than any-one appearing at a

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competitive  examination   after  June,   1983  soon   after graduation may  not have  passed HSC  examination in 1976 or 1978 and  yet the  departmental promotees of that year would be junior  to such  a schoolian. This is the net out come of seniority  rule   being  based   on  rotation  of  vacancies available to  each source and quota not being filled in from time to  time when  the  vacancies  occur.  The  unfortunate outcome is  the same  as was  noticed by  this Court  in  A. Janardhana v.  Union  of  India  &  Ors.(1)  However,  while keeping  aside  this  unjust  and  inequiutous  outcome  and uninfluenced by  it, we may first look at the relevant rules for determining inter-se seniority of persons recruited from three independent sources.      The  service  was  constituted  in  1956.  However  the statutory  rules  came  into  force  on  May  5,  1964.  The constitution of  the service by a memorandum of the Govt. Of India in 1956 was in exercise of the executive powers of the Government of  India. The  statutory rules  came into  force from May  6, 1964  and since then the service is governed by the 1964  Rules. Commencing  from the  advent of 1964 Rules, the recruitment  from three  sources as actually made may be noticed. Information in this chart is according to averments in Para 16 of the petition:      (1) [1983] 2 SCR 936, 446 ----------------------------------------------------------- Year     Departmental         Direct   Limited Departmental          Promotees            recruits  examination appoin-                                             tees ----------------------------------------------------------- 1964           7                -                 - 1965           6                10                - 1966           -                -                 - 1967           -                -                 - 1968           -                -                 3 1969           -                -                 8 1970           -                -                 - 1971           -                -                 - 1972           34               -                 25 1973           29               -                 10 1974            5               -                 14 1975           39               11                2 1976           26               5                 16 1977           -                11                4 1978           47               7                 2 1979           36               6                 2 1980           27               3                 5 1981           24               6                 - 1982           24               2                 - 1983           24               2                 - ----------------------------------------------------------                360              63                91 ----------------------------------------------------------      With  reference  to  Para  16  and  the  chart  in  the petition, in  the  return  filed  on  behalf  of  the  first respondent Government  of India  it is stated that the chart does not give true and correct picture and was denied. It is stated that the exact figures are given in the chart annexed as Annexure ’A’ to the return. It reads as under; 447                                                 ANNEXURE ’A’      "Para 16: The  figures   of  recruitment   through  the                different channel  given by  the  petitioners                are incorrect and misleading.           The correct figures are as given below:-

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Year      DPs       LDE       DRs        Remarks 1964      15        -         11 1965$ 1966$ 1967$     40        9         - 1968$ 1969 1970      -          -        - 1971      33        19 1972      -         7         - 1973      35        18        12(18*)   *Indent. Can-                                          didates joined                                         in 1975. 1974       -        5         5(6*)     *Indent. Joined                                          in 1976. 1975      35        15        8         Joined in 1977 1976      30        5         7*        *Indent 1977      -         5         5*        *Indent 1978      55        19        4*        *Indent 1979      36        18        14*       *Indent 1980      44        15        4*        *Indent 1981      24        12        7*        *Indent 1982      24        12        8*        *Indent."      As far  as the figures OF direct recruits given for the years 1973  11 to  1982, the column recites that the figures therein mentioned are of 448 the indent  sent by  the Union Public Service Commission for making direct  recruitment but  there is nothing to show how many joined as direct recruits. Accepting the information as supplied by  the respondent Union of India, what strikes one at a  glance is  that the recruitment from three sources was never  according   to  quota   nor  according  to  available vacancies for  each source.  Record as  disclosed   does not indicate that the vacancies available to a particular source but not  filled in  during the  relevant period were carried forward. No attempt was made to undertake direct recruitment in the  years 1965,  1966, 1968,  1969, 1970, 1972, 1974 and 1977. Similarly limited competitive examination was not even held in  the years  1964, 1965,  1966, 1968,  1969 and 1970. Indisputably there was large  scale departure from the quota rule.      It may also be mentioned that in the counter affidavit, no attempt  has been  made to  give  information  about  the vacancies available  in each  year and  their  splitting  up according to  the quota  for each  source and  to point  our whether in-any  given year  there was  a short   fall in the recruitment from a particular source and or there was excess recruitment from some other source.      The first  thing to  be noticed  is that  the statutory rules  do   not  provide  for  carry  forward  of  vacancies occurring in  a given  year to  the  next  recruitment.  The feeble and  inaudible plea  to justify  carry    forward  of vacancies was  non-availability of candidates for filling in vacancies available to a source.      It is  of some  importance to note that the petitioners are members of the service and belong to Integrated Grade II and  III  in  the  General  Cadre  of  IFS  ’B’.  They  hold substantive posts  and   there is nothing to show that their promotions when  made were either temporary or adhoc or till such time  as a  regular recruit is available from the other source according  to quota though their promotions appear to be in  excess of  the quota  available for  the source.  The quota is related to vacancies. Rule 13(1) which provides for quota  clearly   recites  that   l/6th  of  the  substantive

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vacancies in  the Integrate- Grade II and III of the General cadre  shall   be  filled  in  by  direct  recruitment  etc. Therefore,  it  is  undeniable  that  quota  is  related  to vacancies. If the quota has to be scientifically implemented it  would   be  incumbent   upon  the  first  respondent  to satisfactorily establish  the number  of vacancies available every year since the  constitution of service; the number of vacancies available  according to  quota reserved  for  each source; the recruitment done during the 449 year from  that particular  source and  to state whether all the vacancies  allocable to  each source were filled in from the concerned  source and  if not  so filled in, whether any recruitment in  excess of  the quota  was  made  from  other sources. It  must  further  be  shown  whether  such  excess recruits were  given temporary,  stop-gap or adhoc promotion subject to availability of candidates from other sources who were entitled  to fill  in those vacancies and that this was done for a B short period and till the candidates, regularly recruited from the sources to which vacancies were allocated were available to fill in the vacancies held by the recruits in excess  of the  quota from  the other  sources.  No  such information was  forthcoming. The only justification offered for not  filling in  vacancies by  recruits from each source according to  its quota  is that  the procedure  for  direct recruitment  as  also  the  procedure  for  holding  limited competitive  examination   is  prolix,  time  consuming  and dilatory and  therefore the recruitment made at a later date from such  source could not work to the disadvantage of such recruits by  pushing them down below those whose promoted in excess of the quota available to that source.      If Rule 25(1)(ii) which provides for inter-se seniority of direct  recruits to  a grade  and  persons  substantively appointed to  the grade  from the select list for the grade, upon its  true construction,  permits leaving open placement in the  seniority list  to be  filled in  at a later date by recruits  coming   from  the   source  for  whom  placements according to rotation are kept open, would such rule or such implementation of the rule of seniority be violative of Art. 16 ?      It is  too late  in the day to dispute that it would be open to  the Government,  while constituting  a service,  to provide for  recruitment to it from more than one source and also  to  reserve  quota  for  each  source.  As  a  logical corrolory, it  would equally  be open to the F Government to provide for seniority rule related to rotation of vacancies. Shortly this is called quota rule of recruitment and rota of rule of  seniority inter-linking  them. So  far there  is no controversy. The  contention of  the petitioners  is that in implementing this  rule there  has  been  such  large  scale deviation that  it results  in denial  of  equality  to  the members of  the service  similarly circumstanced. It will be presently demonstrably  established that  where rota rule of seniority is  interlinked with quota of rule of recruitment, and if  the latter  is unreasonably departed from and breaks down under  its own weight, it would be unfair and unjust to give effect  to the  rota rule  of seniority. To some extent this is  not res  integra. Though some advance has been made on this proposition in later decisions. 450      In B.S. Gupta v. Union of India(l) a Constitution Bench of this  Court after  taking note of the fact that 214 posts were upgraded  from Income-tax  Officers Grade  II to Income Tax Officers  Grade I,  held that  with the  upgrading of  a large number  of  posts  and  the  appointment  to  them  of

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promotees, the  quota rule  collapsed and the seniority rule having a  link with the quota rule would meet the same fate. In A.K. Subramana v. Union of India (2) it was observed that ’when recruitment  is from two or several sources, it should be  observed   that  there  is  no  inherent  invalidity  in introduction of quota system and to work it out by a rule of rotation. The  existence of  a quota  and rotational rule by itself will  not violate  Art. 14 or 16 Of the Constitution. It is  the unreasonable  implementation of  the same,  which may, in  a given  case  attract  the  frown  of  the  equity clause.’      In P.S.  Mahal and  Others v. Union of India & Ors. (3) the Court after reiterating the afore-quoted observations in A.K. Subramana case observed as under:      "The  rotational  rule  of  seniority  is  inextricably      linked with the quota rule and if the quota rule is not      strictly implemented  and there is large deviation from      it regularly  from year  to year,  it would  be grossly      discriminatory  and   unjust  to  give  effect  to  the      rotational rule of seniority." In the period between the decisions in B.S. Gupta’s case and A.K. Subramana’s  case, this  Court threadbare  examined the legal position  in relation  to quota-rota  rule and a large scale deviation  from it  with its  consequent effect on the seniority rule.  In Janardhana’s  case this  Court in  terms held that ’As quota rule was directly inter related with the seniority rule,  and once  the  quota  rule  gave  way,  the seniority rule  became wholly  otiose and ineffective. It is equally well-recognised  that where the quota rule is linked with the  seniority rule,  if the  first breaks  down or  is illegally not  adhered to  giving effect to the second would be unjust,  inequitous and  improper. It may incidentally be mentioned that this view was approved and reiterated in P.S. Mahal’s case. (1) [1975] Suppl. SCR. 491. (2) [1973] 2 SCR 979 (3) AIR 1984 SC 1291 451      In O.P.  Singla and  Anr. v.  Union of India & Ors. (1) Chandrachud, C.J.  speaking for  the majority  after  taking note of the proviso to Rule 7 and Rule 8 of the Delhi Higher Judicial  Service  Rules,  1979  held  that  upon  its  true interpretation, the proviso prescribed a quota and Rule 8(2) provided for rotational system of giving seniority according to the  quota. After taking note of the earlier decisions it was held  that where  recruitment is  from  two  independent sources, the  rule of  seniority on a rotational basis could not be  held to be unconstitutional or violative of Art. 16. The Court  then proceeded  to examine the effect of enormous departure in  the matter  of recruitment  according to quota and its  shadow over  the interlinked  seniority.  Says  the learned Chief Justice:      "However, instances  are not unknown wherein though the      provision of  a rule  or a  Section is not invalid, the      manner  in   which  the  provision  is  implemented  in      practice, leads  to the creation of disparities between      persons,  who,   being  similarly,   circumstanced  are      entitled to equal treatment."      After taking  note of Rule 16 and 17 of the same rules, it was observed as under:      "Promotees who  were appointed  under Rule 16 have been      officiating continuously  without a break as Additional      District and  Sessions Judges  for  a  long  number  of      years. It  is both unrealistic and unjust to treat them      as aliens to the Service merely because the authorities

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    did not  wake up  to the  necessity of  converting  the      temporary posts into permanent ones, even after some of      the promotees  had worked  in those  posts from five to      twelve years."      It was  found as  a fact that the provision prescribing the quota  of direct  recruitment and  promotees was  put in cold storage for a long time. After noticing this ugly fact, the majority proceeded to observe as under:      "In these  circumstances, it  will be  wholly unjust to      penalise the  promotees for  the dilatory and unmindful      attitude of the authorities. It is not fair to tell the      promotees that  they will  rank junior  to  the  direct      recruits who  were appointed  five to  ten years  after      they have officiated continuously in (1) AIR 1984 SC 1595 452      the posts  created in  the service  and  held  by  them      though such  posts may be temporary. This Court atleast      must fail them not."      The Court  after taking  note of  the fact  that  large number of  persons were promoted to temporary posts and such temporary promotees  officiated on  substantive  posts  held that the  proviso to  Rule 7  which prescribes  a quote  for direct  recruits   and  provide  for  rotational  system  of vacancies between  them and the promotees who were appointed to the  service, the rule of seniority according to rotation of vacancies between promotees and direct recruits according to quota  must inevitably  break  down  when  promotions  of promotees are  made to the service under Rule 16 and 17. The majority quoted with approval the following passage from the judgement in Janardhana’s case:      "But, having  done that  we do  propose to  examine and      expose an extremely undesirable, unjust and inequitable      situation emerging  in service  jurisprudence from  the      precedents  namely  that  a  person  already  rendering      service as a promotee has to go down below a person who      comes into  service decades  after the  promotee enters      the service  and who  may be  a schoolian,  if  not  in      embryo, when  the promotee on being promoted on account      of  the  exigencies  of  service  as  required  by  the      Government started rendering service.A time has come to      recast  service   jurisprudence  on   more,  just   and      equitable foundation by examining all precedents on the      subject to retrieve this situation." The learned  Chief Justice made a pertinent observation that the observations  in the  extracted passage  are not without relevance to  the case  before  him  and  lent  considerable support to  the conclusion  which has  been recorded  in the judgment. Thus  the ratio in Janardhana’s case has stood the scrutiny of two later decisions of different benches of this Court. It  may incidentally  be mentioned  that the minority view also  affirmed the  approach and  the  observations  in Janardhana’s case.      The sum  total of  the afore-mentioned  three judgments may  be  freely  re-stated  in  the  telling  expression  in Janardhana’s case which reads as under . 453      "It is therefore time to clearly initiate a proposition      that a  direct recruit who comes into service after the      promotee  was   already  unconditionally   and  without      reservation promoted  and whose  promotion is not shown      to be  invalid or  illegal according  to  the  relevant      statutory  or   non-statutory  rules,   should  not  be      permitted by  any principle  of seniority  to  score  a      march  over   a  promotee  because  that  itself  being

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    arbitrary would be violative or Arts. 14 ant 16." Now proceeding  on the  assumption that  Rule 25 (I) (ii) is valid and therefore seniority inter-se between recruits from three different  sources has to be computed according to the quota  by   rotating  substantive  vacancies  in  the  grade reserved for  each source,  if in  actual implementation  it creates  disparities   between  persons  who  are  similarly circumstanced and  thereby deny  equal treatment,  the  rule would be violative of Art. 16. The outcome is not on account of  an   invidious  implementation  of  the  rule  but  non- implementation of  a part of rule for years. The end product as will be demonstrably established is unjust and unfair and yet this  unjust and  unfair action  is being sup- ported by the Union  of India which was responsible for utter inaction in implementing  the rule  in its  letter and spirit and for unreasonably long  intervals. As pointed out earlier, direct recruitment has not been made for years. Limited competitive examination has  also not  been held  for years.  Promotions from the  select list  have been presumably in excess of the quota but  they were  appointed to  substantive vacancies in the service  and have  been holding the posts as in the case of petitioners  for over  6 to  8 years. The promotions were not styled  as temporary,  adhoc or stop-gap- Blanks related to allocated  vacancies kept open for future direct recruits and candidates qualifying at limited competitive examination in the  seniority list  indicate 17  that if the next direct recruitment is made, say in 1990 and the limited competitive examination  is   held  in   1988,  the  recruits  from  the aforementioned two sources will have to be placed at Sr. No. 170 in  the case of direct recruits and little down below in case of  a candidate  qualifying at  the limited competitive examination. The direct recruit already placed at Sr. No Fin 170 in  1990 would score a march over departmental promotees of 1978  and persons  in service  after  qualifying  at  the limited  competitive   examination  in  1988.  The  emerging situation would  be in  pari materia  with what was found by this Court  in Janardhana’s  case and O.P. Singla’s case and the reasons  therein mentioned  will mutatis  mutandis apply for quashing the seniority list for the self same reason. 454      Approaching the matter from a slightly different angle, in our  opinion, Rule  21(4) and Rule 25(1) (ii) both can be harmoniously read  because they  operate  in  two  different areas. Rule  21(4) provides that subject to other provisions of this  rule (not  all rules) persons promoted or recruited earlier on  the basis  of earlier  selection or  recruitment shall be  senior to those promoted or recruited on the basis of subsequent  selection or  recruitment. If  the expression ’selection’ refers to those promoted via the select list and the  expression   ’recruitment’  refers  to  those  entering service by  direct recruitment,  in view of Rule 21(4) those who enter  service by  ’recruitment’ or  ’selection’ at  any time will  always necessarily be senior to those promoted or recruited  on   the  basis  of  a  subsequent  selection  or recruitment. This  is what  Rule 21(4) provides. In terms it caters to  a situation  where recruitment or selection is at intervals with  a time  lag. Vacancies  in the  cadre or the grade arise  every year.  Normally the substantive vacancies in the  cadre have to be filled in as they occur or within a reasonable time.  The process  of selection  and recruitment must continuously be in operation roughly from year to year. By the impact of Rule 21(4), the selection or recruitment of one year shall have precedence over selection or recruitment of the  next year  and this  is what  is  known  in  service jurisprudence   as   seniority   according   to   continuous

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officiation in  the  cadre  or  the  grade  which  has  been statutorily recognised  in sub-rule 4 of Rule 21. This is in tune with  fairplay and  justice  and  ensures  equality  as mandated by  Art. 16.  Now  Rule  25(1)  (ii)  provides  for integrating direct  recruits and  persons entering  via  the select list to a grade. It is implicit in sub-clause (ii) of Rule 25(1)  that it  would operate at a time when in a given year almost  simultaneously or  within a measurable distance from each  other recruitment  is made  from  all  the  other sources. To  illustrate if  in a  given year  candidates are selected for  appointment to the grade by direct recruitment as also  by holding  the limited competitive examination and giving promotion  and if  all the three enter the service or the grade  at or  almost at the same time or within the year and within a reasonable time lag from each other, a question is bound  to arise  how to  integrate all  of them  entering service from different sources in the common seniority list. Rule 25(1)  (;;) caters  to  this  situation  and  helps  in integrating appointees  from three  sources to be integrated into common  seniority list according to quota. Now contrast Rule 25(1)  (ii) with  Rule 21(4)  and the  meaning of  Rule 25(1)  (;;)   reveals   itself   and   becomes   clear   and understandable.A block  of recruits  in a  given year coming from 455 three  independent   sources  may   be  integrated  inter-se according to  quota and  rota. The  block in subsequent year would be  always junior  to the  block of  recruits  in  the earlier years.  This is how Rule 21(4) and 25(1) (ii) can be harmoniously read and it is unquestionable that they operate in two different situations and both have to be given effect to.      Now turning  to the  impugned seniority lists, what the Union of  India appears  to have done is that it has applied the quota  and rotated  the vacancies  but where  candidates from a  particular source  were not available, the vacancies were deemed  to be kept open (some kind of carry forward) to be filled in by later recruitment from the same source years after the  vacancy occurred, but in the meantime the vacancy was filled  in presumable  by excess  recruitment  from  the other sources.  That is clearly either non-implementation of the quota  rule or mal-functioning of the quota rule and yet the rota  rule is  adhered to  which is  both  impermissible under the  Rules as  well as  unjust, unfair  and inequitous being violative of Arts. 14 and 16. 1)      It was  however contended  on behalf of the respondents that the  quota prescribed  by Rule 13(1) being mandatory in character, any  appointment in  excess of  the quota  in any year would  render  the  excess  appointees  as  irregularly appointed and  they would  not become members of the service and hang  outside the  service, and  can be  demoted. It was said that  once recruits  are available  from the source for which quota was prescribed, the promotees in excess Or their quota can  and must  be replaced  by later  entrants. It was submitted that  such excess promotees have to be demoted but to solve  them from  this harsh  situation, the  courts have evolved a  rule that they may be pushed down and regularised in subsequent years. This indulgence, it was said, cannot be claimed as  a matter  of right  and  therefore  such  excess promotees cannot  claim seniority  over recruits  from other sources who  may have  come at  a later  date. Reliance  was placed in two decisions of this Court in S.G. Jaisinghani v. Union of  India &  Ors. (1)  and Bishan  Sarup Gupta  etc. v Union of  India & Ors. (2) These two decisions are of little help in;  view of  the later decisions directly on the point

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and discussed hereinabove, (1) [1967] 2 S.C.R.. 703, (2) [1975] 1 S.C.R. 104, 456      The language  of Rule  13(1) appears to be mandatory in character. Where recruitment to a service or a cadre is from more  than   one  source,   the  controlling  authority  can prescribe quota  for each source. It is equally correct that where the  quota is  prescribed,  a  rule  of  seniority  by rotating the  vacancies can  be a  valid rule for seniority. But as  pointed out  earlier if  the rule  of  seniority  is inextricably intertwined  with the  quota rule  and there is enormous deviation  from the quota rule, it would be unjust, inequiutous and  unfair to  give effect to the rota rule. In fact as  held in  O.P. Singla’s  case, giving  effect to the rota rule  after noticing  the enormous  departure from  the quota rule  would be  violative of  Art.  14.  There    fore assuming that  quota rule  was  mandatory  in  character  as pointed out  earlier, its departure must permit rejection of rota rule as a valid principle of seniority;      The matter  can be viewed from a different perspective. The question  that may  be posted  is "Was  the  quota  rule mandatory in   character"  ? Rule 29(a) confers power on the controlling authority  to relax any of the provisions of the l 964 rules. It reads thus:      "29(a) Where  the Controlling  authority is  of opinion      that it  is necessary  of expedient so to do, it may be      ordered, for reasons to be recorded in writing to relax      any of  the provisions  of these  rules with respect to      any class or category of persons or posts.           Provided that  in relation to posts falling within      the purview of the commission, no order in respect of a      class or  category of  persons or  posts shall  be made      except after consultation with the Commission."      The controlling authority is defined in Rule 2F to mean the Government of India in the Ministry of External Affairs. Therefore  the  Government  of  India  in  the  Ministry  of External Affairs  enjoys the  power, if  it is  necessary or expedient so  to do, to relax any of the provisions of these rules, with  respect to  any class or category of persons or posts. The  proviso carves out an exception that in relation to posts  falling within  the purview  of the  Union  Public Service Commission  no order  in respect  of a  class  or  a category of  persons or  posts shall  be made  except  after consultation with the 457 Commission. We  will presently  deal with the effect of non- consultation  of   the  Commission  in  a  given  situation. However, Rule  29(a) indisputably confers power to relax any of the  provisions  of  the  1964  Rules  which  shall  also comprehend  Rule   13(1)   which   prescribes   the   quota. Undoubtedly, when  the power  to relax any of the provisions of the Rules is exercised, the controlling authority must be of the  opinion that  it is  necessary or expedient so to do for reasons  to be recorded in writing before exercising the power. It  is well-settled  that failure  to record  reasons will not  invalidated the  exercise of power. Once the power to relax  a given,  mandatory rule  exists and  an action in derogation of  the rule has been repeatedly taken year after the year,  it would  be a  permissible  inference  that  the action was  taken in  relaxation of  the rule  for which the power exists  and in  this case is located in Rule 29(a). To hold otherwise  would be  to come  to  rather  disconcerting conclusion that  a body  like the  Government of India acted deliberately in  contravention of  the mandatory  rule  from

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year to year. It would as far as possible be proper to avoid such an  inference unless it is inescapable. In this case as pointed out  earlier for  years 1965  to 1972 b there was no direct recruitment  and even  for the  later years  only  an indent was  placed and  not recruitment done, and during all these years  a large  number of  persons from  Grade IV were promoted as  departmental promotees  to the Integrated Grade II and  III.A body  like the  Government of India presumably knew that  there is a statutory quota for recruitment but is also presumably  knew that  it had  power to  relax and  for exigency of  service repeatedly  acted in  derogation of the quota rule,  and therefore  it would be permissible to infer that the  action was  taken in  relaxation of  the mandatory quota rule.  This view which we are taking is in accord with the decision  of the  Constitution Bench in Pachan Singh and Anr. v  Union of  India &  Ors. (1)  wherein this Court held that though  the direct recruitment was made in consultation with the  Union Public  Service  Commission  though  not  in accordance with  the  prescribed  procedure  namely  on  the result of a competitive examination, as the country was in a state of  emergency, the  appointment and selection was made by interview  only  and  that  such  appointment  by  direct recruitment was made by relaxation of the relevant rules and the power  was located  in the  Government of India to relax the  rules.  No  specific  order  was  shown  in  that  case vouchsafing that the appointments were made in relaxation of the rule but the court      (1) [1972] 3 S.C.R. 898. 458 inferred from various relevant circumstances then prevailing that the  appoints not  in consonance  with  the  prescribed procedure for  direct recruitment  must have  been  made  in relaxation of  the rules. When the question again came up in Janardhana’s case  the Court held that if direct recruitment was made  in relaxation  of the  relevant  rules,  the  same reasons will mutatis mutandis apply to hold that  promotions in excess  of quota  were given by relaxing the rules. It is therefore reasonable to believe in this case that though the quota was  mandatory it was not adhered to by exercising the power of relaxation both qua persons and posts.      It was  however contended that it is not permissible to infer that  promotions in  excess of  quota  were  given  by relaxing the  quota rule  because the  posts  in  Integrated Grade II and III were within the purview of the Union Public Service Commission  and the  proviso to  Rule 29(a) mandates that power  to relax  is hedged  in with a condition that it can be  done after  consultation with  the  Commission,  and there is  nothing to  show  that  the  Commission  was  ever consulted. Undoubtedly,  the proviso  to Rule 29(a) requires that the  controlling authority  cannot  relax  any  of  the provisions of the rules in respect of posts which are within the purview  of the  Union Public  Service Commission unless after consultation  with the  Commission. It  was  submitted that nothing  is placed  on the record by the petitioners to show that  power to relax the quota rule was exercised after consultation  with  the  Union  Public  Service  Commission. Assuming that  there was no consultation, would the exercise of power  to relax  be vitiated and the appointments made in relaxation of  the mandatory  quota rule  would be ab initio invalid. Commencing  from the  decision of the Privy Council in Montreal  Street Railway  Company v.   Normandi,(1) it is well settled  that ’when  the provisions of a statute relate to the  performance of  a public  duty and  the case is such that to hold null and void acts done in neglect of this duty would work general inconvenience or injustice to persons who

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have not control over those entrusted with the duty and that at the  same time  would  not promote the main object of the Legislature,  in   has  been   the  practice  to  hold  such provisions to be directory only, the neglect of them, though punishable, not  affecting the  validity of  the acts done.’ The view  was expressed  in the  context of  the failure  to revise list  of Jurors  by  the  Sheriff  according  to  the revised statutes  of Quebec and conviction was challenged on the ground of Mistrial held by selecting (1)AIR 1977 P.C. 142 459 Jurors from  unrevised lists.  The challenge  failed. Coming home in  h State  of U.P.  v. Manbodon  Lal Srivastava(1)  a Constitution Bench  of this  Court  specifically  held  that where consultation  with the  Public Service  Commission  is provided as  required by  Art. 320(3)(c) of the Constitution such provision  is not  mandatory and they do not confer any rights  on   public  servants   so  that   the  absence   of consultation or irregularity in consultation does not afford him a cause of action in a court of law. There are number of subsequent decisions  to  which  our  attention  was  called reiterating the same principle. Therefore assuming there was failure to  consult  the  Union  Public  Service  Commission before exercising  the power  to relax  the mandatory  quota rule and further assuming that the posts in Integrated Grade II and  Ill were  within the  purview of  the  Union  Public Service Commission and accepting for the time being that the Commission was  not consulted before the power. to relax the rule was  exercised  yet  the  action  taken  would  not  be vitiated nor  would it  furnish any  help to  Union of India which itself  cannot take  any advantage  of its  failure to consult the  Commission. Therefore  it can  be safely stated that the enormous departure from the quota rule year to year permits an  inference that  the departure was in exercise of the power  of relaxing  the  quota  rule  conferred  on  the controlling authority.  Once there  is power  to  relax  the mandatory quota rule, the appointments made in excess of the quota from  any given source would not be illegal or invalid but would  be valid  and legal as held by this Court in N.K. Chandan and  Ors. v.  State  of  Gujarat(2).  Therefore  the promotion of  the promotees  was regular  and legal  both on account of  the fact  it was  made to meet the exigencies of service in  relaxation of  the mandatory  quota rule  and to substantive vacancies in service.      Once  the   promotees  were   promoted   regularly   to substantive vacancies  even if  temporary unless there was a chance  of   their  demotion   to  the  lower  cadre,  their continuous officiation confers on them an advantage of being senior to  the later recruits under Rule 21(4). If as stated earlier by  the enormous departure or by the power to relax, the quota  rule was not adhered to, the rota rule for inter- se seniority as prescribed in Sec. 25(1)(ii) cannot be given effect. In  the absence  of any  other  valid  principle  of seniority  it   is  well  established  that  the  continuous officiation in the cadre, grade of service will      (1) [1958] S.C.R. 533.      (2) [1977]1 S.C.R., 1037, 460 provide a  valid principle of seniority. The seniority lists having not  been prepared on this principle are liable to be quashed and set aside.      Accordingly these  writ petitions  succeed and the rule is made absolute. The impugned seniority lists challenged by the petitioners   have  been drawn  up in  violation of  the provisions of  Arts. 14  and  16  of  the  Constitution  and

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therefore they are quashed. The first respondent is directed to draw  up  fresh  seniority  list  in  the  light  of  the observations made  in this judgment within a period of three months from  today. All  promotions granted since the filing of the  petitions are  subject to  the decision herein given and they  must be   readjusted  to be  brought in consonance with this  judgment. It the circumstances of the case, there will be no order as to costs. N.V.K.                                     Petition allowed. 461