23 October 1996
Supreme Court
Download

M.S. PATIL, ASSTT. CONSERVATOR OFFORESTS, SOLARPUR (MAHARAS Vs STATE OF MAHARASHTRA ETC.

Bench: K. RAMASWAMY,G.B. PATTANAIK
Case number: Special Leave Petition (Civil) 17913 of 1996


1

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

PETITIONER: M.S. PATIL, ASSTT. CONSERVATOR OFFORESTS, SOLARPUR (MAHARASH

       Vs.

RESPONDENT: STATE OF MAHARASHTRA ETC.

DATE OF JUDGMENT:       23/10/1996

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      By order dated September 16, 1996 passed by our learned brethren Justice  N.P.  Singh  and  Justice  S.B.  Majmudar, placed under  these matters  before this  Bench,  since  the controversy had  already been  decided by  this Court  in  a matter in  which one  of us,  K. Ramaswamy, J. was a member, viz., State  of Maharastra  & Anr.  vs. Sanjay thakre & Ors. [1995 Supp.  (2) SCC 407]. These cases arise from the common order of  the Administrative Tribunal, Bombay in Application No. 83/96 etc. dismissing the above judgment.      Mr. M.S.L.  Patil, party appearing-in-person has raised five contentions,  namely,   that the  combined seniority as per the  rules was  to be  maintained   from the date of the regular appointment  or promotion.  As per  the  rules,  the petitioner came  to be appointed prior to the appointment of the direct  recruits.  Therefore,  the    entire  length  of service rendered  by him  as  an  Assistant  Conservator  of Forests requires to be tagged for maintaining his seniority. If so considered, he would be senior to the direct recruits. Therefore, they cannot scale march over the promotees. It is also contended  that  the  direct  recruits  unfilled  quota cannot be  carried   forward.  He  places  reliance  on  the judgment of  this court  in Indra Sawhney vs. Union of India [1992 Supp.  (3) 217]  known as  Mandal’s case. They were no recruited according  to rules. He also contended that he was not made a party to the earlier proceedings which culminated in the aforesaid judgment. Therefore, the decision passed by this  Court  is  violative  of  the  principles  of  natural justice. He  also contended  that   the third  respondent in this case  is a  direct recruit  and has  concealed  several material facts  which led  to the  open judgment    by  this Court.  Shri   Raju  Ramachandran,  learned  senior  counsel appearing for  some of  the promotees, contended that in the earlier case,  this Court in paragraph 9 of the judgment has specifically stated  the premises that specific material has not  been  placed  on  record  of  the  appointment  of  the promotees, viz., whether their promotions were fortuitous or not. The  quota rules  was broken  down between  the  direct recruits and  the promotees.  Even under  Rules,  1982,  the second proviso  thereto gives  a power  to the Government to

2

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

certify that  the direct  recruitment could  not be made. In view of  the stand  taken by  the Government in the counter- affidavit filed  in the  Tribunal that the so-called rule of quota  has   been  broken   down,     it  would   amount  to certification that it did not make regular recruitment; as a result, promotees  gain seniority  which has  to be  counted from the  date of the regular promotion. Thereby, they would be senior to the direct recruits.      In view  of these contentions, the question that arises is: whether  the judgment of this Court has been vitiated by any error of law warranting reconsideration at the behest of some of  the persons  who are  not parties  to  the  earlier proceedings ?  It is undoubted that they were not parties to their earlier  petition but  this Court  has laid  down  the general principle  of law,  and, therefore,  whether  or not they are  parties to  the earlier  proceedings, the  general principle  of   law  stands   applicable  to   every  person irrespective of  the fact whether he is party to the earlier order or  not. It  is not  in dispute  that there is a ratio prescribed for  the direct  recruits  and    the  promotees, namely 1:1.  In other  words, for  every 100  vacancies  the promotees are  entitled only  to 50 vacancies. It  is not in dispute that these promotees have been promoted in excess of the quota. Under those circumstances, it is settled law that the promotees  who are  appointed in  excess  of  the  quota cannot get  the be  fitted into  seniority according  to the rules. As  to what is the date on which the promotees or the direct recruits  came to  be appointed   into the respective quota is  a   matter of record and the seniority is required to be  determined according  to the  law laid  down by  this Court. In several judgments of this Court, it is now  firmly settled  that  mere  by  because  of  the  fact  that  State Government could  not make  direct recruitment  due  to  its inaction, it  cannot be said that the rule of quota has been broken down.  Therefore, as  and when the direct recruitment has  been    made,  the  direct  recruits  are  entitled  to placement of their seniority into the vacancies reserved for them as  per  the ratio  and the seniority determined as per the rules  within the  respective quota. Similarly, when the promotees came  to be  promoted in accordance with the rules in excess  of their quota, this Court stated in K.C. Joshi & Ors. vs.  Union of  India &  Ors. [AIR 1991 SC 284] though a Bench of  three Hon’ble Judges, that the promotees in excess of the  quota cannot be given seniority from  the respective dates of  their promotions.  They have to be considered only from the  respective dates  on  which their respective quota is available.  The same decision was followed and reiterated in A.N.  Sehgal vs. Raje Ram [1992 Supp. (1) SCC 304]. Under these circumstances,  we do  not think  that the judgment of this  Court   is  vitiated   by  any   error  of   law   for reconsideration.  Even   Rule  4,   second  proviso  has  no application to  the facts  in this case. Rule 4 contemplates the seniority  and   second proviso postulates that when the recruitment could  not be  made, they  have to  certify  the ground on  which   it could  not be  made and thereafter the seniority has  to be determined. In view of the law now laid down,  the   certification  of   the  non-making  of  direct recruitment according  to   rules, bears  no relevance.  The question of  carry forward  in this  case, as  laid down  in Mandal’s case,  has no  application for  the reason that the recruitment  in   proportion  is   one    the    methods  of recruitment and  is required  to be  made. The balance posts are required  to be  recruited by subsequent publication and the promotees  have no  right to  get into the post reserved for   the direct  recruits.  Mandal’s  case  concerns  carry

3

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

forward posts  reserved under  Article 16(4)  for  Scheduled Castes, Scheduled  Tribes and  Other Backward  Classes which has nothing  to do in this case. Though some of the  grounds will be  available to   argue the case on merits, that is no ground to  reopen the  settled law  laid by  this  Court  in earlier decision.