1

                                                                                              REPORTABLE

IN THE SUPRTEME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 4157 0F 2009 [Arising out of Special Leave Petition(Civil) No. 12948 of 2007]

Radha Mohan Malakar and others .. Appellants

-versus-

Usha Ranjan Bhattacharjee and others ..   Respondents

J U D G M E N T

Markandey Katju, J.

1. Leave granted.

2. This appeal by special leave has been filed against the final judgment  

and  order  dated  5.4.2006  passed  by  the  High  Court  of  Gauhati  in  Writ  

Appeal No. 166 of 2004.

3. Heard learned counsel for the parties and perused the record.

4. The dispute in this case is about relative seniority between the direct  

recruits of 1990 and promotees of 1991 to the Grade –II of the Tripura Civil  

Service which has been constituted under the Tripura Civil Service Rules

2

1967.  The appellants in this case are direct recruits and the respondents are  

promotees.

5. The promotees filed a writ petition before the learned Single Judge of  

the Gauhati High Court which was dismissed on 23.4.2004, but against that  

judgment a writ appeal was filed by the promotees which was allowed by the  

impugned judgment dated 5.4.2006 of the Division Bench of the High Court.  

Hence this appeal by the direct recruits.

6. The fixation of the  inter se seniority of the members of the Tripura  

Civil Service (in short, ‘the TCS’) is governed by Rule 28 of the Tripura  

Civil Service Rule, 1967 (in short, ‘the TCS Rules’).  Sub-rule (iii) of Rules  

28, which had been the subject of repeated controversy, read as under:  

“The  relative  seniority  of  direct  recruits  and  of   promotees shall be determined according to the rotation   of  vacancies  between  direct  recruits  and  promotees  which shall be based on the quotas of vacancies reserved  for direct recruitment and promotion under rules 5”  

7. The Government  of Tripura had earlier  issued a notification,  dated  

25.5.1981  enunciating  the  principles  governing  the  inter  se seniority  

between the direct recruits and promotees purportedly consistent with Rule  

28(iii).   The  notification  dated  25.5.1981,  aforementioned,  is  reproduced  

herein below:-

3

“Government  have  observed  that  certain  difficulties  have  arisen  in  the  implementation  of  the  general  principles  of  determining  seniority  of  various  categories  of  persons  employed  under  the  Tripura  Government, as incorporated in Tripura Administration’s  order No. F1.(16)-GA/59 dated 12.7.1960.

2. It is clarified that the rotation and the fixation of  relative seniority of direct recruits and regular promotees  shall  be done taking into account only such officers as  are appointed from either source to the same grade and  the same cadre within any single calendar year.

3. Any  final  seniority  list  already  notified  by  the  Government  shall  not  be  liable  to  revision  merely  because of the issue of the present order.

By order & in the name of the Governor Sd/- S.R. Sankaran

   Chief Secretary to the  Government of Tripura”.

8. The  notification  dated  25.5.1981,  aforementioned,  came  to  be  

challenged in Civil Rule No. 204/81 by the promotees of Grade-II of the  

TCS,  who  had  formed  an  association  under  the  name  and  style  of  the  

Association of Civil Service Officers, Tripura, Agartala.  By judgment and  

order dated 29.7.1992, a Division Bench of the High Court allowed the Civil  

Rule  and  quashed  the  impugned  notification  dated  25.5.1981,  

aforementioned.

9. While  quashing the  said  notification  dated 25.5.1981,  the  Division  

Bench observed and held inter alia, as follows:

4

“It is well settled in a catena of decisions by the   Hon’ble Supreme Court that when there are two sources   of recruitments to a service with a fixed quota, the quota   rule  has  to  be  followed  and  there  should  not  be  any  deviation in following the quota rules.  It has also been  well  settled by the  catena of  decisions by the  Hon’ble   Supreme Court that if the promotees happen to occupy   the  vacancies  which  are  within  the  quota  of  direct   recruits, when direct recruitment takes place, the direct   recruits will occupy the vacancies within their quota and  the promotees who are occupying the vacancies within   the quota of direct recruits will either be reverted or be  absorbed in the vacancies  within their quota.  So also  when direct  recruits  appointed in  the  vacancies  which   are within the quota of promotees after the recruitment   by promotion taken place the promotees will occupy the   vacant post within their quota.

It  is  apparent  that  by the impugned notification,   rotation  and  fixation  of  relative  seniority  of  direct   recruits and promotees has been confined to the recruits   of a calendar year, even if in a calendar year recruitment   is made from only one source or from a source in excess  of  the  fixed  quota.   Thus,  the  impugned  notification  confining the  fixation  of  relative  seniority  between the  direct  recruits  and  promotees  to  the  recruits  of  a  calendar year purports to frustrate and override the very   tenet  of  quota  rules  and  the  well  settled  principles  of  fixation of relative seniority between the direct recruits   and  promotees  when  the  recruitment  to  the  service  is   made against the quota vacancies reserved for the direct   recruitment and promotion.  

On a bare reading of the provision of rules 28 of   the Tripura Civil Service Rules, 1967, and the impugned  instruction, it becomes apparent that the impugned order   dated 28.5.1981 is inconsistent with and violative of the   provision of rule 28 of the TCS Rules.  It is well settled   that provisions of statutory rules cannot be overridden or   violated  by  administrative  instruction  and  that  

5

administrative instruction which is inconsistent with and  violative of the Rules, is illegal and void.  For the reason  stated  above,  we  have  no  hesitation  to  hold  that  the   impugned  order  dated  28.5.1991  being  ex-facie   inconsistent  with  and/or  violative  of  the  provisions  of   Rules  18  of  the  Tripura  Civil  Service  Rules,  1967  is   illegal and void.  The petition is, therefore, allowed and  impugned notification dated 28.5.1981 is quashed.  We  make no order as to costs”.

                                                          (emphasis supplied)

10. The said decision rendered by the Division Bench in Civil Rule No.  

204/1981 dated 29.7.1992 remained unchallenged and accordingly attained  

finality.   The  Government  of  Tripura  prepared  and  published  Office  

Memorandum dated 25.7.1997 which was a draft seniority list purportedly  

in  terms  of  the  decision  in  Civil  Rule  No.  204/1981,by  placing  the  

promotees,  irrespective  of  their  individual  date  of  recruitment,  to  their  

respective  slots  in  the  gradation  list  on  the  basis  of  Quota  Rota  Rule.  

Subsequent  thereto,  however,  a  Government  order  dated  25.5.2000  was  

issued  clarifying  the  general  principles  for  determination  of  seniority  

between the direct recruits and the promotees with reference to the decision  

in Civil Rule No.204/1981.

11. Acting upon the said  order  dated 25.5.2000, the State  Government  

published afresh, vide order dated 9.6.2000 a seniority list of the officers of  

the Tripura Civil Service Grade-II whereby the direct recruits of 1990 were

6

placed en-bloc over the promotees of 1991.  The Government order dated  

25.5.2000  aforementioned  as  well  as  the  seniority  list  dated  9.6.2000,  

aforementioned came to be challenged by some promotees of 1991, in two  

writ petitions, namely, Writ Petition Nos. 293/2000 and 294/2000.

12. While  dismissing  the  two  writ  petitions  on  23.4.2004,  the  learned  

Single Judge concluded that since the direct recruits had been recruited to  

Grade-II of the TCS prior to the promotion of the writ petitioners thereto and  

that the direct recruitment had remained confined within the quota meant for  

being  filled  up  by  direct  recruitment,  the  writ  petitioners,  on  being  

subsequently  promoted  to  the  Grade-II  of  the  TCS,  cannot  be  granted  

seniority over the direct recruits, for the promotees were not even born in the  

cadre of the TCS on the dates when the private respondents were directly  

recruited to Grade-II of the TCS.  It was the correctness of this conclusion,  

which was challenged in writ appeal before the Division Bench of the High  

Court.  

13. The  Division  Bench  by  the  impugned  judgment  has  set  aside  the  

judgment of the learned Single Judge and allowed the appeal and set aside  

the judgment of learned Single Judge dated 23.4.2004 as well as clarificatory  

order dated 25.5.2000 and the impugned gradation list dated 9.6.2000. The  

Division Bench directed the authority  to prepare a  fresh gradation list  in

7

respect  of  the  Grade  II  of  the  Tripura  Civil  Services  in  terms  of  the  

principles  embodied  in the  unamended Rule 28 (iii)  of  the Tripura Civil  

Services 1967 and in the light of its observations.  The order was restricted  

to the appellants and private respondents before the Devision Bench.      

14. The Division Bench held that the impugned clarificatroy order dated  

25.5.2000 and the impugned seniority list published by order dated 9.6.2000  

were contrary to the provisions of Rule 28 (iii) of the Rules.  The Division  

Bench also held that the impugned order dated 25.5.2000 sought to  achieve  

the same object which the notification dated 25.5.1981 sought to realize, and  

since the said notification dated 25.5.1981 has already been quashed,  the  

question of bringing in another notification having the same effect cannot  

arise and cannot be legally permitted.

15. In  the  year  1989,  25  promotees  were  recruited  in  TCS.  32  direct  

recruits  by way of competitive examination were recruited in TCS in the  

year 1990 against the substantive vacancies in the cadre of 1987/1988 for  

which the advertisement was issued in year 1988.  The appellants herein are  

some of the direct  recruits  belonging to 1990 batch.  52 promotees were  

again recruited in TCS in year 1991.  Private respondents no.1 to 12 are all  

promotees  who  belong  to  the  1991  batch.   However,  only  these  12  

respondents herein filed the Writ Appeal No. 166/2004 whose judgment is

8

impugned herein.  By the impugned judgment herein the seniority between a  

handful of parties in this petition has been disturbed by the High Court.   

16. It is contended by the appellants that the High Court ought to have  

considered the seniority between the 1989 promotees,  1991 promotees on  

the  one  hand and  1990 direct  recruits  on  the  other  hand.   Many  of  the  

promotees belonging to the 1989 and 1991 batch have retired from service.  

However,  it  is  alleged  by  the  appellants  that  in  view  of  the  impugned  

judgment now the seniority  is wrongly sought to be fixed qua the 1990  

(direct recruits) and 1991 (promotees) confined to the parties in the present  

petition, which is erroneous.  

17. The  Association  of  Civil  Service  Officers  in  TCS  challenged  the  

aforesaid notification dated 25.5.1981 in Civil Rule No. 204 of 1981 before  

the Gauhati High Court Agartala Bench.   The Division Bench of Gauhati  

High Court Agartala Bench vide final judgment and order dated 29.7.1992  

quashed the notification dated 25.5.1981.   

18. It  was  held by  the  High Court  in  the  impugned judgment  that  the  

administrative  order  dated  25.5.2000  of  rotation  and  fixation  of  relative  

seniority of direct recruits and promotees has been confined to the recruits of  

a calendar year, even if in a calendar year recruitment is made from only one

9

source or from a source in excess of the fixed quota.  Hence it was held that  

the administrative order dated 25.5.2000 purports to frustrate and override  

the very tenet of quota rules when the recruitment to the service is made  

against  excess  of  quota  of  vacancies  reserved  for  direct  recruitment  and  

promotion.     

19. The provisional draft seniority list was published by the Government  

of Tripura vide memorandum dated 25.7.1997 comprising of the seniority  

list  for  batches  of  1989  (promotees),  1990  (direct  recruits)  and  1991  

(promotees).  True copy of the draft seniority list published by Government  

of Tripura dated 25.7.1997 is produced as Annexure P-3 to the appeal.

20. The appellants filed a Writ Petition No.110 of 2000 before the High  

Court, Gauhati challenging the aforesaid seniority list dated 25.7.1997.  It  

was  subsequently  withdrawn  in  view  of  the  administrative  order  dated  

25.5.2000 and the seniority list dated 9.6.2000.

21. The  Government  of  Tripura  issued  the  administrative  order  dated  

25.5.2000  governing  the  general  principles  of  relative  seniority  between  

direct recruits and promotees in TCS.  It was specifically clarified therein  

that the persons recruited  in excess of the quota from any source shall not  

get rotational seniority in the same calendar year but shall be reverted to the

10

year where they can be accommodated in the respective quota of that year,  

which was not clarified in the earlier notification dated 25.5.1981.

22. The administrative order dated 25.5.2000 issued by the Government  

of Tripura reads as follows :-

“No. F.23 (9)-GA (P&T)/2000 Government of Tripura

Central Administration (P&T) Department

25th May, 2000

ORDER Subject :- General Principles for determination seniority

The  State  Govt.  observed  that  certain  difficulties  had  arisen  in  the  implementation  of  the  general  principles  of  determining  seniority  of  various  categories  of  persons  employed  under  the  State  Govt.  as  incorporate  in  Tripura  Administration’s order no. F.1 (16)-GA /59 dated 12.7.1960.

2. To overcome the difficulties a clarification was issued vide  order No. F.1 (11)-GA /59 dated 28.5.1981.  According to  that clarification rotation and fixation of relative seniority of  direct  recruits  and  promotees  was  to  be  done  taking  into  account  only  such officers  as  were  appointed  from either  source  to  the  same grade  and  the  same cadre  within  any  single calendar year.

 3. The  Hon’ble  Gauhati  High  Court  in  CR  204  of  1981  

quashed the aforesaid order on the ground that it confined  rotation  and  fixation  of  relative  seniority,  even  if  in  a  calendar year recruitment from one source is made in excess  of the quota.  Accordingly, a formal order was issued vide  No. F. 23 (47)-GA /81 dated 8.7.1993 for not giving effect  to the former order.

11

4. However,  the  difficulties  as  aforesaid,  persist  and to  over  come the same it is clarified again, in modified form in the  light  of  the  decision  of  the  Hon’ble  High Court,  that  the  rotation and fixation of relative seniority of direct  recruits  and the promotees shall  be done taking into account only  such officers as are appointed from either source to the same  grade and the same cadre within any single calendar year if  the  recruitment  are  made  within  the  respective  quota.  Persons  recruited  in  excess  of  the  quota  from any source  shall not get rotational seniority in the same calendar year  but  shall  be  reverted  to  the  year  where  they  can  be  accommodated in the respective quota of that year.

 5. Any final seniority list  already notified by the Govt. shall  

not be liable to revision merely because of the issue of the  present order.  

By order of the Governor

(S.K. Roy) Secretary to the Govt. of  Tripura  

23. The  seniority  list  of  existing  officers  in  Grade  II  batches  of  1989  

(promotees),  1990  (direct  recruits),  and  1991  (promotees)  in  the  Tripura  

Civil Services was published by the Government vide office memorandum  

dated 9.6.2000.

24.  It was submitted by the respondents-promotees before us that in the  

seniority  list  as  per  Notification  dated  9.6.2000,  all  the  1989  batch  

promotees  (25  in  number)  were  placed  en-bloc  senior  over  1990  direct  

recruits.  The  1990  direct  recruits  were  placed  en-bloc  senior  over  1991

12

promotees batch.  It was submitted that this was in violation of the judgment  

of the Division Bench of the High Court dated 29.7.1992.  True copies of the  

office memorandum and final seniority list dated 9.6.2000 is produced as  

Annexure P-5 to the appeal.  

25. The learned Single Judge before whom the writ petition was filed held  

that  the  principle  of  determination  of  the  seniority  contained  in  the  

memorandum  dated  25.5.2000  does  not  contravene  Rule  28  (iii)  of  the  

Rules.  However, the Division Bench of the High Court has reversed the said  

judgment and hence this appeal.  

26. In our opinion this appeal deserves to be allowed.  

27. In this connection reference may be made to the three Judge Bench of  

this Court in N. K. Chauhan and Ors.  vs.  State of Gujarat and ors. 1977  

(1) SCC 308.  In paragraphs 32 and 33  of the aforementioned decision this  

Court has observed:-

 “32. We  therefore  reach  the  following  conclusions:

1. The promotions of mamlatdars made by Government  between 1960 and 1962 are saved by the `as far as  practicable' proviso and therefore valid.  Here it falls  to  be  noticed  that  in  1966  regular  rules  have  been  framed for promotees and direct recruits flowing into  the pool of Deputy Collectors on the same quota basis  but with a basic difference.  The saving provision `as  far as practicable' has been deleted in the 1966 rules.

13

The consequence bears upon seniority even if the year  is treated as the unit for quota adjustment.

2. If any promotions have been made in excess of the  quota set apart for the mamlatdars after rules in 1966  were made, the direct recruits have a legitimate right  to claim that the appointees in excess of the allocable  ratio from among mamlatdars will have to be pushed  down  to  later  years  when  their  promotions  can  be  regularised by being absorbed in their lawful quota for  those years.  To simplify, by illustration, if 10 deputy  collectors'  substantive vacancies exist  in 1967 but 8  promotees  were  appointed  and  two  direct  recruits  alone were secured, there is a clear transgression of  the 50 :  50 rule.   The redundancy of 3 hands from  among  promotees  cannot  claim  to  be  regularly  appointed on a permanent basis.  For the time being  they occupy the posts and the only official grade that  can  be  extended  to  them is  to  absorb  them in  the  subsequent  vacancies  allocable  to  promotees.   This  will  have to be worked out down the line wherever  there has been excessive representation of promotees  in  the  annual  intake.   Shri  Parekh,  counsel  for  the  appellants has fairly conceded this position.

3. The  quota  rule  does  not,  inevitably,  invoke  the  application of the rota rule.  The impact of this position is  that if sufficient number of direct recruits have not been  forthcoming in the years since 1960 to fill in the  ratio  due  to  them  and  those  deficient  vacancies  have  been  filled up by promotees, later direct recruits cannot claim  `deemed'  dates  of  appointment  for  seniority  in  service  with effect from the time, according to the rota or turn,  the direct recruits' vacancy arose.  Seniority will depend  on the length of continuous officiating service and cannot  be upset by later arrivals from the open market  save to  the extent to which any excess promotees may have to be  pushed down as indicated earlier.

33. These  formulations  based  on  the  commonsense  understanding  of  the  resolution  of  1959  have to be tested in the light of decided cases.  After all,

14

we live in a judicial system where earlier curial wisdom,  unless  competently  overruled,  binds  the  Court.   The  decisions cited before us start  with the leading case in  Mervyn Coutindo  vs.  Collector of Customs AIR 1967  SC 52, and closes with the last pronouncement in  V.B.  Badami  vs.  State of Mysore 1976(2) SCC 901.  This  timespan  has  seen  dicta  go  zigzag  but  we  see  no  difficulty  in  tracing  a  common  thread  of  reasoning.  However,  there  are  divergencies  in  the  ratiocination  between  Mervyn  Coutindo   and  Govind  Dattatray  Kelkar  vs.   Chief Controller of Imports and Exports  AIR 1967 SC 839 on the one hand and S.G. Jaisinghani  vs. Union of India  AIR 1967 SC 1427,  Bishan Sarup  Gupta  vs. Union of India   1973(3) SCC 1,  Union of  India   vs.  Bishan Sarup Gupta 1975(3) SCC 116 and  A.K. Subraman  vs.  Union of India  1975(1) SCC 319  on the other, especially on the rota system and the year  being regarded as  a  unit,  that  this  Court  may one day  have  to  harmonize  the  discordance  unless  Government  wakes  up  to  the  need  for  properly  drafting  its  service  rules so as to eliminate litigative waste of its  servants'  energies.”     

                                                          (emphasis supplied)  

28. The  aforesaid  decision  has  considered  the  earlier  decisions  of  this  

Court including the Constitution Bench decision in  Mervyn Coutindo vs.  

Collector of  Customs AIR 1967 SC 52,  S.G. Jaisinghani vs.  Union of  

India AIR 1967 SC 1427,  V. B. Badami vs.  State of Mysore,  1967 (2)  

SCC 901, etc.

29. In our opinion the principle of the decision in    N. K. Chauhan’s    case  

(supra) can be illustrated by taking a hypothetical example.  Suppose in a

15

particular service 50% of the vacancies are to be filled in by promotion and  

50% by  direct  recruitment,  and  suppose  there  is  a  rule  that  the  inter  se  

seniority of  direct  recruits  and promotees is  to be fixed according to the  

rotation of vacancies between direct recruits and promotees in the manner  

that the first post will go to a promotee, the second to a direct recruit, the  

third to a promotee, the fourth to a direct recruit, and so on.  Even here the  

ordinary  rule  that  seniority  will  depend  on  the  length  of  the  continuous  

officiating service has to be followed unless the quota of direct recruits or of  

the promotees has been exceeded.  It is only if the said quota is exceeded  

that  the  appointees  have  to  be  pushed  down  in  the  seniority,  otherwise  

seniority has to be taken from the date of continuous officiating service.  In  

the present case it is admitted that the quota of direct recruits has not been  

exceeded.  Hence, in our opinion, the seniority of direct recruits (appellant)  

has to be taken from the date of their initial appointment and they cannot be  

pushed  down  in  seniority.   The  promotees  (respondents  herein)  were  

appointed to the Grade II of TCS after the appointments of the direct recruits  

(appellants).  Hence the former have to be treated as junior to the latter.  The  

earlier Division Bench decision of the High Court dated 29.7.1992 has to be  

understood in the light of the decision of this Court in N.K. Chauhan’s case  

(supra).

16

30. The result of the impugned judgment of the Division Bench will be  

that the 1990 direct recruits who were recruited against vacancies created  

before 1988 will be pushed below the 1991 promotees in seniority.  In our  

opinion such a view is clearly erroneous in law.  

31. In  our  opinion the  Government’s  order  dated 25.5.2000 and office  

memorandum  dated  9.6.2000  are  valid  and  are  in  accordance  with  the  

Tripura  Civil  Service  Rules,  and  the  view of  the  Division  Bench  is  not  

correct.  

32. In B.S. Mathur and another vs.  Union of India and Others, 2008  

(10)  SCC 271 it  was  observed that  ordinarily  inter  se seniority  is  to  be  

determined on the basis of continuous length of service.  The Court in the  

aforementioned decision has referred to the earlier decision in  O.P. Singla  

and  Another vs.  Union  of  India  and  Others,  1984  (4)  SCC  450  and  

Rudra Kumar Sain and Others. Vs Union of India and Others, 2008 (8)  

SCC 25.

33. Since the quota of direct recruits has not been exceeded hence in our  

opinion  the  seniority  has  to  be  calculated  from  the  date  of  the  initial  

appointment and the said seniority cannot be pushed down.  

17

34. For  the  reasons  given  above this  appeal  is  allowed,  the  impugned  

judgment of the Division Bench is set aside and judgment of the learned  

Single Judge is upheld.  No orders as to costs.            

………………………J. (R. V. Raveendran)

………………………J. (Markandey Katju)

New Delhi: July 07, 2009.