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PETITIONER: DR. S.C.V. REDDY & ORS. ETC.

       Vs.

RESPONDENT: STATE OF KARNATAKA & ORS.

DATE OF JUDGMENT:       27/03/1997

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.  we have  heard learned  counsel on both sides.      These appeals  by special leave arise from the order of the Karnataka Administrative Tribunal, Bangalore Bench, made on January  24, 1996  in Application  Nos. 1405  and 1564 of 1992 and batch.      The  admitted  position  is  that    the  Governor,  in exercise of  the power  under proviso to Article 309 of  the Constitution has  constituted, for the first time the Mysore Agricultural State  Service Cadre.  Therein, Class  II posts consist  of   Assistant  Directors,   District  Agricultural officers,   Cotton   Development   officers,   Horticultural Development officer,  Senior Assistant  of Research Section, Professors-class   II,   Superintendents   of   Agricultural Research  Stations   and  Agronomists   and  Assistant  Soil Conservation  officers   and   Apiarist.   The   method   of recruitment from  different sources  has been  prescribed by the rules  called  Mysore  Agricultural  Department  service (Recruitment) rules, 1961 issued by the Governor in exercise of  the   power  under   proviso  to   Article  309  of  the Constitution which came into effect from September 26, 1961. Therein,   25% posts of Assistant Directors are reserved for direct recruitment  and 75%   for  promotees from  Extension officers (Agriculture). the method of direct recruitment has been provided  in column  3. Similarly,  50% posts of Senior Assistant of  Research Sections  & Professors  class-II  are reserved for  by direct  recruitment and 50% by promotion of Scientific  Assistants.   Equally,  for  superintendents  of Agricultural Research  Stations and  Agronomists, 50%  is by direct recruitment and 50% is by promotion from the cadre of Agricultural Extension  officers and  Scientific Assistants. For the  posts of  Assistant soil Conservation officers, 33- 1/3%  by  promotion  from  the  post  of  Extension  officer (Agriculture) N.E.S.  Blocks who  have undergone training in soil conservation.  For   Apiarist, by direct recruitment or by  promotion   of  Research   and  Teaching  Assistants  in Entomology who  have undergone  training in  Agriculture for which there is no quota. Subsequently, these designations of the officers  have been  changed by  the  proceedings  as  a

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result of  the mysore  pay Commission  report of  1968.  The redesignated posts  have come  into  effect  from  September 23,1970. As  many  as  31  categories  of  posts  have  been enumerated  with   redesignations   in   Class   Ii   posts. Subsequently, the  question of inter-se seniority cropped up at different stages and pursuant to the directions issued by the  Tribunal   also.  In  exercise  of  the  power  by  the Government  have  issued  seniority  list  working  out  the respective ratio  between the  direct  recruitment  and  the promotees, as  enumerated in Annexure I to the Notification. Clause 1 reads as under:      "The C  & R  Rules  of  Agriculture      Department  came   into  effect  on      26.9.1961     and      subsequently      superseded by  Notification No.  AF      39 ADO  72 (ii), dated 18th August,      1976. It  was herein  provided  for      recruitment   to   the   cadre   of      Agriculture Officers  to the extent      of 50%   by  promotion and  50%  by      Direct  Recruitment.  However,  the      said 1976  Rules have  been amended      vide notification  No. AAH  161 ADO      77,  dated  8.9.1978  altering  the      ratio to  25% by direct recruitment      and 75%  by  promotion.  therefore,      quota for  direct  recruitment  and      75% by  promotion. therefore, quota      for    direct    recruitment    and      promotion during  the periods  from      26.9.1978    to    25.8.1976    and      26.8.1976 to  7.9.1978 is  taken at      1|1 respectively  and at  1:4  from      8.9.1976 onwards."      Clause 5 says      "vacancies   occurred   and   their      regular  utilisation   for   direct      recruitment and  promotion has been      taken into  account while computing      vacancies."      In Clause 6 it is stated that :      "interse seniority  between  direct      recruitment and  promotion  in  the      block period is determined based on      the    length     of     continuous      officiation."      Clause 9 says:      "A  gradation   list  of  Assistant      Agriculture    officers    as    on      26.9.1961  was   published  by  the      Director  of   Agriculture  on  5th      January 1979.  Subsequently another      rectified gradation  list published      on 16th  January 1989  has been set      aside by the Government in G.O. No.      AHD 45 AGP 89, dated 19th June 1990      and  consequently  the  list  dated      5.1.1979 stands  restored  and  has      been taken into consideration while      preparing  the  gradation  list  of      Agriculture    Officers    as    on      1.1.1989."      Clause 11 postulates the existence of various vacancies required to  be filled  up  by  direct  recruitment  and  by promotion, as enumerated therein .

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    "The vacancies  utilised have  been      re-worked and  quotas fixed.    The      Block-wise vacancies and quotas for      direct recruitment  and  promotions      are as under:                            Direct Block       Vacancies       Direct        Promotion             utilised        Recruitment   Quota                             Quota ------------------------------------------------------------ I                             278            279 II             1              26             26 III            22             56             167 IV             10                            83 V                             1              215           ----------     -----------     ----------------- Total                         456            770                           -----------     ---------------"      On the basis thereof, in paragraph 12 it is stated that as against  the quota of 456 for direct recruitment, 35 have been utilised  and 421  vacancies have been carried forward. In Paragraph  13, it  is stated that as against the quota of 770  for  promotees,  1195  promotions  have  been  effected including ISS   list. Thereby, 420 promoted persons have ben occupying the  posts  reserved  for  direct  recruitment  in excess of their quota.      The question,  therefore, is  what is  the in which the inter se  seniority required  to be determined and the posts filled up.  As  stated  earlier,  from  1961  to  1976,  the promotion in  the existing vacancies between direct recruits and the  promotees had  to be  given as  per the  respective ratio which,  for the  first time,  was changed for class Ii posts by  proceedings of the year 1976. The Notification was issued on August 18, 1976 which became effective from August 26,1976. Therein,  the ratio  was 50% for direct recruitment and 50%  for   promotees. Subsequently, it was again changed into 25%  and 75%  w.e.f. 8.9.1978  with b  which we are not concerned. We  are concerned  only  with the  vacancies that were required to be apportioned between direct  recruits and the promotees  between 1961  to 1976.  The Tribunal  in  the order has held that it is a "no-rule period". In view of the above position,  the conclusion reached by the Tribunal that there was  no rule  in operation  between direct recruit and promotees  during  that  period  in  question  is  obviously incorrect.      Shri S.  R. Bhat,  learned counsel for the respondents, sought to  support the  impugned order  on the  ground  that only a  few out  of 31 categories, enumerated later, contain the specific  enumeration done  1961 rules  and , therefore, the Tribunal  was right  in its conclusion that no ratio was in operation between the direct recruit and the promotees in the respective posts during no rule period. we are unable to agree with  his contention.  It is  not his  case that posts were abolished  and new  posts have been created. It is seen that previously existing posts were designated by giving new nomenclatures to  various posts.  Under these circumstances, merely because nomenclature have been changed those posts do not stand abolished. It would be obvious that the posts were existing and  on that premise  the Government worked out the existing posts  and  apportioned  them  between  the  direct recruit and  the promotees  on the  basis of  the percentage prescribed at  the relevant time. Under these circumstances, we are  of the  view that  the Tribunal was incorrect in its conclusion that  there was  no rule  operating  during  that period  for  reservation  of  the  direct  recruit  and  the

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promotees in  the proportion  enumerated   hereinbefore. The Government  is,   therefore,  directed   to  work   out  the proportion  of  the  posts,  in  the  ratios,  as  indicated earlier, between  the direct  recruit and  the promotees and then determine the interse seniority on that basis, within a period of six months from the date of receipt of the order.      The appeals are, accordingly allowed. No costs.