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CASE NO.: Appeal (civil)  4907 of 1999

PETITIONER: M. Subba Reddy & Another

RESPONDENT: A.P. State Road Transport Corporation & Others

DATE OF JUDGMENT: 12/04/2004

BENCH: CJI., V.N. KHARE & S.H. KAPADIA.

JUDGMENT: J U D G M E N T

WITH

CIVIL APPEAL No.4908 OF 1999.

K. V. N. Acharyulu & Others                      Versus A.P. State Road TransportCorporation                                           KAPADIA, J.

       The civil appeals herein raise a common point of law i.e.  fitment of the promotees in the integrated seniority list.  The  posts of Assistant Traffic Manager (for short "ATM) and  Assistant Mechanical Engineer (for short "AME) are Class-I  Junior Scale Officers posts.  It is the case of the appellants that  for several years, due to ban on recruitment, promotions were  made from lower feeder posts even in excess of the ratio of 1:1  under A.P. State Road Transport Corporation Employees  (Recruitment) Regulations, 1966 (hereinafter referred to as "the  recruitment regulations).  It is the case of the appellants that  whenever direct recruitment was not possible within a short  period and when administrative exigencies warranted the filling  of posts, like the one in the instant case, promotions were made  either on ad hoc or on temporary basis and in course of time  they were regularized.  M. Subba Reddy, appellant herein, was  appointed as a Traffic Apprentice on 10.8.1971 in the  Corporation.  He was promoted temporarily on 31.1.1983 as  ATM vide Office Order dated 10.1.1983 and regularized on  27.12.1986 vide order dated 9.9.1988.  He was confirmed on  1.4.1987 as ATM. It is the case of the appellants that while they  were senior to direct recruits, who entered the above posts in  1988, 1990 etc., in the impugned integrated seniority list dated  10.11.1994, they have been placed below the direct recruits.   The appellants contend that when their promotions were  regularized, the direct recruits were not even born on the cadre  of ATMs/AMEs and, therefore, there was no reason for placing  them below the direct recruits.  Per contra, it is the case of  direct recruits that the integrated seniority list is in consonance  with the quota rule of 1:1 under the statutory rules mentioned  supra.

       Before coming to the arguments advanced on both sides,  we notice the relevant provisions of recruitment regulations  framed by the corporation under section 45 of the Road  Transport Corporation Act, 1950.   For the purposes of deciding

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this matter, we quote herein below the relevant provisions of  the recruitment regulations:\027 "3.     Appointment and qualifications:

1)      Appointment to the posts in the  Corporation shall be made\027

a)      by direct recruitment; or b)      by promotion; or

c)      by transfer or deputation of an official  already in the service of a Department of the  Central or State Government or a State  Transport Undertaking.

2)      The method of recruitment to each  post specified in column 2 of Annexure-A shall be  as shown in the corresponding entry in column (3)  thereof and the qualifications prescribed for each  such post shall be as shown in the corresponding  entry in column (4).

3)      Notwithstanding anything in Clause  (2) the Corporation may at any time, appoint  suitable officers of the State or Central  Government or any State Transport Undertaking to  any of the posts specified in Annexure-A on  ’Foreign Service’ terms.

4)      Where suitable departmental  candidates are not available for promotion to any  of the posts specified in Annexure-A where the  posts are to be filled by promotion only, such posts  may be filled by direct recruitment by selection  provided that recruitment to all the higher posts  from the lower posts shall be made by way of  promotion and resort had to direct recruitment only  when suitable and qualified persons are not  available for promotions.

17).    Temporary appointment: (1)     Where it is necessary in  administrative interests owing to an emergency  which has arisen, to fill immediately a vacancy in a  post borne on the cadre of a service and if it is  likely that there would be undue delay in making  any appointment in accordance with these  regulations, the appointing authority may appoint a  person temporarily otherwise than in accordance  with these regulations, until a person is appointed  in accordance with these regulation, provided the  post is not one which is reserved to be filled by  promotion.

(2)     No appointment under clause (1) shall  ordinarily be made of a person who does not  possess the qualifications, if any, prescribed for the  said post.  Every person who does not possess such  qualifications and who has been or is appointed  under this clause shall be replaced as soon as  possible by an approved candidate.

(3)     Where it is necessary to fill a short  vacancy in a post borne on the cadre of a service  and the appointment of the person entitled to such

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appointment under the regulations or orders in  force would involve excessive expenditure on  travelling allowance or exceptional administrative  inconvenience, the appointing authority may  appoint any other person who possesses the  qualifications, if any, prescribed for the said post.

(4)     A person appointed under clause (1)  shall, whether or not he possess the qualification  prescribed for appointment to the post to which he  is appointed, be replaced as soon as possible by an  employee or an approved candidate as the case  may be, who is qualified to hold the post under the  regulations or orders in force.

(5)     A person appointed under clause (1)  or clause (3) shall not be entitled by reason only of  such appointment to any preferential claim to  future appointment to such post or category of  posts.

(6)     Notwithstanding anything in these  regulations, if and when a temporary post is  created as an addition to the cadre of a service and  the holder thereof is required by the corporation to  possess any special qualifications, knowledge or  experience, any person who possesses such  qualifications, knowledge or experience, and is  considered to be the best suited to discharge the  duties of such post may, irrespective of other  considerations, be appointed to that post by the  appointing authority but the person so appointed  shall not by reason only of such appointment be  regarded as a probationer in such service, class,  category nor shall be acquired thereby any  preferential right to future appointment to such  service, class, category or posts.

18).    Date of Commencement of probation of  persons appointed temporarily:

If a person, having been appointed  temporarily under clauses (1), (3) or (6) of  regulation 17 to a post borne on the cadre of any  service, or having been appointed to any services  otherwise than in accordance with the regulations  governing appointment thereto is subsequently  appointed to the service in accordance with these  regulations, he shall commence his probation from  the date of such subsequent appointment or from  such earlier date (not being earlier than the date of  his first appointment on a temporary basis) as the  appointing authority may determine.  He shall also  be eligible to draw increments in the time scale of  pay applicable to him from the date of  commencement of his probation but shall not be  entitled to arrears of pay unless otherwise ordered  by the corporation.

30).    Temporary Promotion :

(1)(i)  Where it is necessary in the administrative  interest to fill emergently a vacancy in a post borne  on the cadre of a higher category in a service or  class by promotion from lower category and if the

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filling of such vacancy in accordance with these  regulations is likely to result in undue delay, the  appointing authority may promote a person  temporarily otherwise than in accordance with  these regulations.

(ii)    No person who does not possess the  qualifications, if any, prescribed for the said  service, class, or category shall ordinarily be  promoted under sub-clause (i).  Every person who  has been or is promoted under sub-clause (i) shall  be replaced as soon as possible by promoting a  person possessing such qualifications.

(2)     Where it is necessary to fill a short vacancy  in a post borne on the cadre of a higher category in  a service or a class, by promotion from lower  category and the appointment of a person who is  eligible for such promotion under these regulation,  would involve excessive expenditure on traveling  allowance of exceptional administrative  inconvenience, the appointing authority may  promote any other person possessing the  qualifications, if any, prescribed for the post.

(3)     A person promoted under sub-clause (i) of  clause (1), whether or not he possesses the  qualification prescribed for the service, class or  category to which he is promoted shall as soon as  possible be replaced by a member of the service  who is eligible to hold the post under the  regulations or orders in force.

(4)     A person promoted under clauses (1) or (2)  of regulation 30 shall not be regarded as a  probationer in the higher category or be entitled by  reason only of such promotion to any preferential  claim to future promotion to such higher category.

(5)     The appointing authority shall have the  power to revert to a lower category or post any  person promoted under clause (1) or (2) of  regulation 30 at any time without assigning any  reason and without notice.

(6)     If any person referred to in clause (4) is  subsequently promoted to the higher category in  accordance with these regulations, he shall  commence his probation in such category from the  date of such subsequent promotion or from such  earlier date as the appointing authority may in its  discretion determine.  He shall also be eligible to  draw increments in the time scale of pay applicable  to him from the date of commencement of his  probation but shall not be entitled to arrears of pay  unless otherwise ordered.

34.     If in any of the following categories a  sufficient number of approved candidates who  have successfully completed their training is not  available for filling posts reserved to be filled by

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direct recruitment such posts may be filled  temporarily by departmental promotion until  approved candidates who have successfully  completed their training become available to  replace the promotees and the reverted person shall  subsequently be considered for repromotion  against the quota of vacancies reserved for being  filled by promotion.

(a)     Asstt. Mechanical Engineer and Asstt.  Works Manager.

(b)     Asst. Traffic Manager

(c)     Chargeman

(d)     Traffic Inspector Grade II and Head Depot  Clerk. (e)     Artisans.

Item-3 of Annexure ’A’ (Section-B) Class-I Jr.  Scale Service :  

"3.     Assistant Traffic Manager. \027 In a unit of  four:\027

1)      The first and third vacancy shall be filled in  by appointing of an officer under training,  who has successfully completed his training  and the second and fourth by promotion of a  Chief Inspector.   

2)      If a suitable candidate is not available in a  particular category for filling up a vacancy  reserved for that category, the vacancy may  be filled in by a suitable candidate from the  other categories.

3)      If no suitable candidate is available in any of  the categories mentioned above, the post  may be filled in by direct recruitment by  selection.

Qualifications:

1)      For Promotion:

The Chief Inspector must have put in not  less than 5 years of service as such.

For Direct Recruitment: The Candidate\027

a)      must hold a degree in Mechanical  Engineering from a recognised  University or have passed sections  ’A’ & ’B’ of the Associate  Membership Examination of the  Institution of Engineers (India) or  hold a diploma or a certificate  recognized by the Institution of  Engineers (India) as exempting him  from Section ’A’ & ’B’ of their  Associate Membership Examination.

b)      must have had experience for not less

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then four years as Traffic Executive in  large size passenger road transport  organization exclusive of the period  of training, if any, preference will be  given to a candidate who is a graduate  member of the Indian Institution of  Road Transport or any other  recognised Institution of Transport;  and

c)      must not be above 30 years of age as  on Ist July of the year in which the  recruitment is made."

        We also quote herein below regulation 3 of Employees  Service Regulations, 1964 (hereinafter referred to as "the  service regulations"):\027 "3. Seniority: (a)     The "Seniority" of a person in service,  class, category or grade shall unless he has been  reduced to a lower rank as a punishment, be  determined by the date of his first appointment to  such service, class, category or grade.  If any  portion of the service of such person does not  count towards probation his seniority shall be  determined by the date of commencement of his  service which counts towards probation.

(b)     The appointing authority may, at the  time of passing an order appointing two or more  persons simultaneously to a service fix the order of  preference among them; and where such order has  been fixed seniority shall be determined in  accordance with it.

(c)     The transfer of a person from one  category or grade of a service to another category  or grade carrying the same pay or scale of pay  shall not be treated as a first appointment to the  latter for purposes of seniority and the seniority of  a person so transferred shall be determined with  reference to the date of his first appointment to the  category or grade from which he was transferred.   Where any difficulty or doubt arises in applying  this regulation, seniority shall be determined by the  appointing authority.

(d)     Where a member of any service,  class, category or grade, is reduced to a lower  service class, category or grade, he shall be placed  at the top of the latter unless the authority ordering  such reduction directs that he shall take rank in  such lower service, class, category or grade next  below any specified member thereof."

A bare reading of the above regulations indicate that  under service regulation 3, the seniority is reckonable from the  date of appointment to a service or a grade.  On the other hand,  regulation 3 of the recruitment regulations deals with the  method and manner in which the appointments shall be made to  various posts.  It states that appointments can be made by direct  recruitment, promotions and transfer.  The method of  recruitment to each post is specified in column 2 of Appendix-

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A to the recruitment regulations as shown in the corresponding  column 3.  Therefore, one has to read regulation 3 of the  recruitment regulations with Appendix-A in order to ascertain  the method of recruitment to each post.  Item 3 quoted above  relates to method of recruitment to the post of Assistant Traffic  Manager (ATM).  Under item-3 (1), it is stipulated that in a unit  of four vacancies, the first and third vacancies shall be filled by  direct recruits whereas the second and fourth vacancies shall be  filled by promotees.  It further provides that if a suitable  candidate is not available in a particular category for filling up a  vacancy reserved for that category, the vacancy may be filled in  by a suitable candidate from the other category.  Regulation 17  of the recruitment regulations deal with temporary  appointments, the sole criteria being undue delay in making of  regular appointments.  Regulation 18 specifies that if a person  appointed to a temporary post under regulation 17 is  subsequently appointed to the service in accordance with the  regulations, his probation shall commence only from the date of  such subsequent appointment in accordance with the  regulations.  Regulation 17 deals with power to make  temporary appointments whereas regulation 30 deals with the  power to make temporary promotions.  Regulation 30(1)  stipulates that the appointing authority may promote a person  temporarily, otherwise than in accordance with the regulations,  in cases where administrative exigency requires the appointing  authority to immediately fill in a vacancy in the cadre of a  higher category.  Regulation 30(3) specifies further that the  temporary promotee covered by regulation 30(1) shall as soon  as possible be replaced by a member of the service eligible to  hold the post under the regulations.  Regulation 30(4) stipulates  that the temporary promotee shall not be regarded as the  probationer in the higher category, neither shall he have any  preferential claim to future promotion in the higher category.   Regulation 30(6) states that if a temporary promotee is  subsequently promoted to the higher category in accordance  with the regulations, his probation shall commence in the  higher category only from the date of subsequent promotion in  the higher category and he shall not be entitled to any benefits  for the period when he was a temporary promotee.  Regulation  34 applies to posts reserved only to be filled by direct recruits.   Reading item 3 of Appendix-A (Section-B) with regulation 34,  it is clear that filling up of the posts reserved for direct recruits  by departmental promotees has to be on temporary basis under  regulation 30 and as soon as eligible candidates from direct  recruits quota become available, they are to replace the  temporarily promotees.

Regulation 3 of the Service Regulations inter alia states  that seniority shall be determined by the date of first  appointment to such service, class, category or grade.  In the  present case, regulation 3 of the service regulations has been  pressed into service by the appellants, who have urged that their  seniority shall be determined on the basis of the date of  appointment.  However, one has to read regulation 3 of the  service regulations with regulations 30 and 34 of the  recruitment regulations.  In the present case, the appellants \026  promotees were promoted to the posts of ATMs/AMEs  temporarily under regulation 30 as there were no direct recruits  available.  They were promoted subject to being reverted to  substantive posts on approved candidates becoming available.   Regulation 34(6) states that the revertees shall subsequently be  considered for repromotion against the quota of vacancies  reserved for promotees.  Therefore, in the present case, one has  to read regulation 3 of the service regulations with regulations  30 and 34 of the recruitment regulations.  It is only when such

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revertees are repromoted as per regulation 34, they can be  deemed to have been appointed to the post of ATM or AME.   Therefore, when the appellants were tentatively appointed to  the post of ATMs/AMEs originally for want of direct recruits  and to the posts reserved for direct recruits, it cannot be said  that they were first appointed to that category within the  meaning of regulation 3 of the service regulations.  Therefore,  in so far as posts reserved for direct recruits are concerned, the  temporary promotions cannot be said to be first appointments to  that category.  It follows that seniority had to be fixed between  the direct recruits and the promotees strictly in accordance with  the quota provided for in Item\0263 of Appendix-A (Section-B).   

Mr. Rakesh Dwivedi, learned senior counsel appearing  on behalf of the appellants submitted that the appellants had a  right to be promoted within their quota during the years 1981 to  1987, when vacancies for promotees quota became available.   During this period, no direct recruits were available.  Direct  recruits became available in July 1988, November, 1990 and  June, 1992.  Appellant M. Subba Reddy was regularized from  27.12.1986 vide order dated 9.9.1998, when no direct recruits  were available and, therefore, it was improper for corporation to  place direct recruits above the promotees.  It is the case of the  appellants that the direct recruits cannot claim appointments  from the date of the vacancy in their quota before their  selection.  It has been contended that Item-3 of Appendix-A  (Section-B) prescribes the method of recruitment in the manner  in which vacancy is allocated.  According to the learned  counsel it does not involve rota for the purposes of seniority.  It  prescribes only quota, therefore, rota cannot be implied.  It was  urged that seniority is dealt with only by regulation 3 of the  service regulations, 1964 and not by regulation 34 of the  recruitment regulations, 1966.  Reliance was placed in this  connection on regulation 34 as amended on 15.9.1995.  It was  submitted that in view of the said amendments, Appendix-A  refers to only allocation of vacancy and not for determination of  seniority.  It was to be determined only by regulation 3 of the  service regulations.  The non-availability of candidates in a  particular category, it was urged, may be on account of ban on  recruitment or on any other ground.  Therefore, in the present  case, where promotees were regularized in the promotion quota  when direct recruits were not available, the quota in item-3(1)  of Appendix-A will not apply.  It was submitted that in any  event, allocation of vacancy under the said clause was not rigid  and it cannot be a basis for denying seniority to the promotees  from the date of regularization.  Reliance was place on the  judgment of this Court in the case of The Direct Recruit Class- II Engineering Officers’ Association & Ors. v. State of  Maharashtra & Ors. reported in [AIR 1990 SC 1607].   

We do not find any merit in the above arguments.   Appellants have not challenged the validity of the above  regulations.  As stated above, it has been contended before us  on behalf of the appellants that item-3(1) of Appendix-A  (Section-B) prescribes method of recruitment and the manner in  which vacancy is to be allocated, which does not involve  rotation for the purposes of seniority; that item-3(1) of  Appendix-A (Section-B) prescribes only quota and rota cannot  be implied.  However, the appellants before the High Court  unequivocally submitted that under the above regulations,  promotions and direct recruitments were required to be made in  the ratio of 1:1 and that the said regulations provided for a cycle  in which vacancies were to be rotated. [See: Affidavit of M.

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Subba Reddy dated 28.12.1994].  In the said affidavit, it is  further submitted that in the absence of direct recruits, the slots  reserved for direct recruits were liable to be adjusted with the  promotees immediately and subsequently arrived direct recruits  should be given their positions in the seniority list subsequently  in a bunch.  In our view, the averments of the appellants before  the High Court, if accepted, would result in complete violation  of the quota and rota rule embodied in the above regulations,  which cannot be permitted.  As stated above, appellants were  promoted originally subject to the conditions envisaged in  regulation 34 and, therefore, they cannot claim seniority by  ignoring the said regulations and on the basis of their officiating  services. They were promoted temporarily under regulation 30  which provides for ad hoc promotions.   Regulation 34 ensures  induction of qualified direct recruits.   But for regulation 34,  candidates from feeder posts would be temporarily promoted to  the slots reserved for direct recruits and on their regularization,  the quota prescribed for direct recruits will be defeated.   Regulation 34 has been enacted to protect quota prescribed for  direct recruits.  As stated above, regulation 3 of the service  regulations has to be read with regulations 30 and 34 of the said  recruitment regulations.  The appellants were promoted on  temporary basis under regulation 30 with the clear  understanding that the period of officiation will not give them  any right over direct recruits in future.  It is for this reason that  regulation 30 (6) states that if a temporarily promotee is  subsequently promoted in accordance with the regulations, his  probation will commence in the higher category only from the  date of subsequent promotions.  For the same reason, regulation  34 states that revertees shall be subsequently considered for  repromotion against the quota of vacancies reserved for being  filled by promotion.   Therefore, regulation 34 protects the  quota prescribed for direct recruits.  On reading regulation 3 of  the service regulations with regulations 30 and 34 of the  recruitment regulations, it becomes clear that neither the date of  promotion nor the date of selection is the criteria for fixation of  seniority.  The fixation of seniority under the above regulations  depends upon the number of vacancies falling in a particular  category.  Therefore, the rule of rota is inbuilt in the quota  prescribed for direct recruits and for promotees in terms of  item-3 of Appendix-A (Section-B) to the recruitment  regulations.  In the present case, the above regulations prescribe  a quota of 1:1, which leads to rota for confirmation.  The  fixation of seniority under the above regulations depends upon  the number of vacancies against which promotees became due  for promotion.  In the case of Devendra Prasad Sharma v.  State of Mizoram & Ors. reported in [(1997) 4 SCC 422], rule  25(iii) stated that the relative seniority of direct recruits and of  promotees shall be determined according to rotation of  vacancies between direct recruits and promotees based on the  quotas of vacancies reserved for direct recruitment and  promotion.  Rule 25(iii) is similar to Item-3 (1) of Appendix-A  (Section-B).  It was held by this Court that in cases where there  is rotation of vacancies between direct recruits and promotees  based on quota of vacancies, the rotation has to be considered in  accordance with the vacancies as and when they accrue under  the rules.  Therefore, the quota rule needs to be strictly adhered  to, if not, it would lead to absurdity.  If the contention of the  appellants is accepted, it would mean that the entire group of  direct recruits will have to be placed below the entire group of  promotees.  We are of the opinion that having fixed the quota  between the two sources of recruitment, there is no discretion  with the corporation to alter the quota or to deviate from the  quota. In the circumstances, there is no merit in the argument of  the appellants that item-3(1) of Appendix-A (Section-B)

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prescribes only quota and not rota and that the said item was  not for determination of seniority.  In the case of S.G.  Jaisinghani v. Union of India & Ors. reported in [AIR 1967  SC 1427], this Court held that having fixed the quota between  two sources of recruitment, it is not open to the government to  alter the quota or to deviate from the quota.  In the case of  Union of India & Ors. v. S.D. Gupta & Ors. reported in [AIR  1996 SC 3325], the respondents were promotees \026 Extra  Assistant Directors (Class-III) in Central Water Commission  Engineering Class-I Service.  The recruitment rules were made  w.e.f. 15.10.1965.  In the earlier litigation, the tribunal found  that one Shri V.P. Misra, Extra Assistant Director was  promoted on ad hoc basis on 31.3.1978 and he was required to  be confirmed with effect from the date on which vacancy was  available to him in the quota of promotees.  The vacancy had  admittedly arisen in the quota of promotees on 3.5.1979.  Shri  V.P. Misra was fitted in that vacancy.  While doing so, the  department applied principle of rota and quota and determined  the inter-se seniority of promotees and direct recruits.   Consequently, the promotees were pushed down in the order of  seniority which led to second round of litigation.  The question  which arose for determination before this Court was whether  fitment of seniority determined by the department was in  accordance with the rules.  The Court found that 60% of the  vacancies were to be filled by direct recruits and 40% by  promotees.  Among the 40% quota, there was a further  demarcation in the ratio of 25% and 15% between promotees  and transferees.  Admittedly, the promotees were entitled to  their fitment within 25% quota.  Vacancies for the promotees  had arisen on 3.5.1979 and, therefore, V.P. Misra was entitled  to that vacancy which arose on that date.  However, as stated  above, in the integrated list, the promotees were pushed down.   It was contended on behalf of the promotees that the direct  recruits were not born in the service when the promotees were  promoted and equity requires that the promotees cannot be  pushed down.  This Court rejected the said argument by  observing that the object of direct recruitment is to blend talent  and experience.  So long as the system continues, consequences  were inevitable.  Although, the direct recruits were recruited  later, their fitment in the order of seniority had to be determined  with reference to rota and quota prescribed under the rules.   In  such a case, there was no illegality even when promotees were  pushed downwards in the order of seniority.  In our view, the  judgment of this Court in the case of S.D. Gupta’s case (supra)  squarely applies to the facts of the present case.

Appellants have relied upon the judgment of this Court in  the case of The Direct Recruit Class-II Engineering Officers’  Association’s case (supra).  In that matter, an unusual situation  had developed under which the rota and quota system had  broken down. The promotees had worked for twenty years  without being reverted and in view of that fact, the Constitution  Bench of this Court confirmed the principles of counting  towards seniority, the period of continuous officiation.  The  said judgment has no application to the facts of this case.  In the  present case, the argument of the appellants is that on the date  when the appellants were regularized, there were no direct  recruits available and consequently they cannot be pushed down  in the integrated seniority list.  Hence, the judgment of this  Court in the case of The Direct Recruit Class-II Engineering  Officers’ Association (supra) has no application to the present  case.  In fact, in the later judgment of this Court in the case of  State of West Bengal & Ors. v. Aghore Nath Dey & Ors.  reported in [(1993) 3 SCC 371], it has been held, relying on the  judgment in the case of The Direct Recruit Class-II

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Engineering Officers’ Association (supra), that seniority has to  be counted from the date of initial appointment and not from  the date of confirmation provided the initial appointment is  according to the rules.  But the corollary to the above  proposition is that where initial appointment is only ad hoc and  not according to rules, the officiation cannot be taken into  account for considering the seniority.  The ratio of the judgment  of this Court in the case of Aghore Nath Dey (supra) is that the  benefit of ad hoc or temporary service is not admissible, if  appointment was outside the rules.  Applying the ratio of the  said judgment to the facts of this case, the benefit of temporary  promotion to the appellants under regulation 30 was not  admissible to them for computation of seniority.  

       It was, however, urged on behalf of the appellants that  the position changed when vacancies became available in the  promotion quota and the appellants came to be regularized vide  order dated 9.9.1988.  By the said order, according to the  appellants, regularization took place with retrospective effect  from the dates indicated against their names and against the  post earmarked for promotion and consequently in the  integrated seniority list, they were not liable to be pushed down  below direct recruits.  We do not find any merit in this  argument.  Under regulation 30 read with regulation 34,  temporary promotees were liable to be reverted as and when  approved direct recruits became available.  The promotees were  liable to be replaced by direct recruits.  Under regulation 34, the  said revertees were to be considered for repromotion only  against the quota of vacancies reserved for promotees.  This is  clear from the terms of the order dated 9.9.1988.  In the case of  U.P. Secretariat U.D.A. Association & Ors. v. State of U.P. &  Ors. reported in [(1999) 1 SCC 278], it has been held that a  direct recruit is to be treated as in service from the date he joins  it, whereas the promotee has to be fitted into service from the  date when he becomes entitled to fitment in accordance with the  quota and rota rule prescribed under the rules.  In the case of A.  N. Sehgal & Ors. v. Raje Ram Sheoram & Ors. reported in  [AIR 1991 SC 1406], one of the arguments advanced on behalf  of the promotees was that they were promoted as Executive  Engineers against regular vacancies and they continued in  service without break from the respective dates of their  promotion, therefore, they were members of the service in  substantive capacity from respective dates of promotion.  It was  argued that the direct recruit Shri Raje Ram was recruited long  after the promotion of the appellants (promotees) and, therefore,  the promotees cannot be pushed down and placed below the  direct recruit.  On examination of the rules, this Court found  that recruitment to the service was from three sources, namely,  direct recruitment, promotion and by transfer.  A ratio was  prescribed under rule 5(2) between the promotees and direct  recruits.  The ratio was 1:1.  It was held that rule 5(2) had  restricted the number of posts to promotees at 50%.  Under the  proviso to rule 5(2), it was laid down that the rigour of 50%  quota may be relaxed in cases where direct recruits were not  available.  On reading rule 5, it was held by this Court that a  promotee within his quota under rule 5 got his seniority from  the date when the vacancy arose in his quota.  It was held that  the promotee occupying the post within 50% quota of the direct  recruit acquired no right to the post and should yield to direct  recruit though promoted later to him.  It was held that the  seniority of the promotee has to be reckoned only from the date  of availability of the post and, therefore, he has to be placed  below his immediate senior promotee within the said quota.   The officiating period of the promotee between the date of  initial promotion and the date of availability of vacancy would

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stand excluded.  A direct recruit on promotion within his quota,  though later to the promotee is interposed in between the  periods and interjects the promotee’s seniority; he snaps the  links in the chain of continuity and steals a march over the  promotee.  It has been further held that the rule of quota is a  statutory rule and must be strictly implemented.  The result of  pushing down the promotees may work hardship but it is  unavoidable as it would nullify otherwise the statutory rules.  In  the case of U.P. Secretariat U.D.A. Association (supra), it has  been held by this Court that mere inaction on the part of the  government cannot be made ground to contend that the quota  rule has broken down.  In the present case, in the absence of  direct recruitment, the appellants could not have got seniority  over direct recruits.  Where there is inaction on the part of the  Government or employer or imposed ban on direct recruitment  in filling up the posts meant for direct recruits, it cannot be held  that the quota has broken down.   

       Before concluding, it may be pointed out that in the  present case, the impugned seniority list is dated 10.11.1994  whereas regulation 34 has been amended w.e.f. 15.9.1995.   Therefore, reliance placed on the amended regulation 34 by the  appellants is incorrect.

       For the aforestated reasons, we do not find any merit in  the above civil appeals and the same are dismissed accordingly,  with no order as to costs.