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PETITIONER: STATE OF MADHYA PRADESH AND ORS.

       Vs.

RESPONDENT: A.K. RAJORIYA AND ANR.

DATE OF JUDGMENT28/04/1992

BENCH: SAWANT, P.B. BENCH: SAWANT, P.B. PANDIAN, S.R. (J)

CITATION:  1992 AIR 2074            1992 SCR  (2) 854  1992 SCC  Supl.  (2) 413 JT 1992 (3)   327  1992 SCALE  (1)1049

ACT:      M.P.  State Industries (Gazetted)  Service  Recruitment Rules, 1985: Rule 6(2)-Schedule II: Interpretation of.      Director   of   M.P.    Industries-Deputy    Directors- Recruitment   of-50%  by  Direct  recruitment  and  50%   by Promotion-Held  Rule 6(2) read with Schedule II  relates  to maintenance  of  proportion  between  direct  recruits   and promotees in the total strength of cadre-It does not pertain to filling up of vacancies whenever they occur.

HEADNOTE:      Rule  6(1)  of  the  Madhya  Pradesh  State  Industries (Gazetted)  Service  Recruitment Rules, 1985  provides  that recruitment   to  the  service  shall  be  (a)   by   direct recruitment (b) by promotion and (c) by transfer.  Rule 6(2) provides  that the number of persons recruited by  promotion or  transfer  shall not at any time  exceed  the  percentage shown in Schedule I. Schedule II of the number of duty posts specified in Schedule II mentions that the percentage of the duty posts of Deputy Directors to be filled in by  promotion would be fifty and that to be filled by promotion would also be fifty.      In the Directorate of Industries of Madhya Pradesh  the strength  of  cadre  of  Deputy Directors   was  57  at  the relevant  time.  28 posts were held by promotees and  21  by direct recruits.  To conform to the provisions of Rule  6(2) the  Government  filled  the eight vacant  posts  of  Deputy Directors  only  by  direct  recruitment.   The  Respondent- Assistant   Directors  challenged  the   said   appointments contending  that  Rule 6(2) read with Schedule  II  requires that  whenever  vacancies  occur  in  the  post  of   Deputy Director, they should be filled in 50% by direct recruitment and 50% by promotion from the Assistant Directors and  since all  the  eight  vacancies were filled  in  only  by  direct recruitment in violation of Rule 6(2) they were denied their legal right to promotion to the post of Deputy Director.  On behalf of the State and directly recruited Deputy  Directors it  was  contended  that Rule 6(2)  read  with  Schedule  II requires  that  the strength of cadre  of  Deputy  Directors should at any point of time consist of not more than 50%                                                        855

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promotees  and  the transferred employees and since  at  the relevant time 28 incumbents were promotees and the other  21 incumbents  were direct recruits the direct  recruitment  of eight Deputy Directors was in conformity with Rule 6(2).      The  Madhya Pradesh State Tribunal held that Rule  6(2) requires that 50% of the vacancies on every occasion  should be  filled  by direct recruits and  promotees  respectively. Therefore,  four out of the eight posts of Deputy  Directors should go to respondent-Assistant Directors for being filled in by promotion.  Against the order of the Tribunal  appeals were filed in this Court.      Allowing the appeal, this Court,      HELD  :  1.  The  impugned order  of  the  Tribunal  is unsustainable  in law.  Therefore, it is set aside.  [858-E, 861-B]      2.  Although  the  heading of Rule  6  is  ‘Methods  of Recruitment’ and sub-clause (1) of the said rule states that the  recruitment  to  the service shall  be  (a)  by  direct recruitment  (b)  by  promotion and  (c)  by  transfer,  the language  of sub-clause (s) of the said rule is very  clear. It  states  that at no time the number of  Deputy  Directors recruited  by  promotion  or  transfer,  shall  exceed   the percentage shown in Schedule II, of the number of Duty Posts specified  in  Schedule 1.  Schedule II  mentions  that  the percentage  of the duty posts to be filled in  by  promotion would  be fifty.  Thus, neither Rules 6(2) nor  Schedule  II refers to the vacancies to be filled in. On the other  hand, they  speak  of  the  percentage  of  direct  recruits   and promotees  to  be maintained in the posts at  any  point  of time. [859 F-H, 860-A]      There  is no ambiguity in the language either  of  sub- clause (2) or Rule 6 or of Schedule II referred to  therein. On a plain reading of both the said provisions, it is  clear that  the  Rule  does  not pertain  to  the  filling  in  of vacancies  when  they occur but to the  maintenance  of  the proportion  between the direct recruits and promotees.   The Rule  requires  that the proportion between the two  in  the cadre or duty posts should be so maintained that at no  time those  recruited either by promotion or transfer exceed  50% of the duty posts or cadre strength. [860 A-B]      Bishan  Sarup Gupta v. Union of India and Ors.,  [1975] SCR   Suppl.  491;  Direct  Recruit  Class  II   Engineering Officers’ Association v. State of                                                        856 Maharashtra and Ors., [1990] 2 SCC 752, distinguished.

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1875 of 1992.      From  the  Judgment  and Order dated  4.5.1990  of  the Madhya   Pradesh   Administrative  Tribunal,   Jabalpur   in Transferred Application No. 1 of 1988.                WITH      Civil Appeal No. 1876 of 1992.      S.V.  Deshpande, S.K. Agnihotri and S.  Muralidhar  for the Appellants.      Sakesh Kumar and Surya Kant for the Respondents.      The Judgment of the Court was delivered by      SAWANT,  J.  These two SLPs are  directed  against  the judgment and order dated 4th May, 1990 of the Madhya Pradesh State  Administrative Tribunal.  Notices to the  respondents in  each of the SLPs were issued for final  hearing.   After service of the notices and completion of the pleadings,  the

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SLPs  have  come up for hearing before us today.   Leave  is granted in both the SLPs.      2.  The  short question involved in  these  appeals  is whether  Rule  6(2) of the Madhya Pradesh  State  Industries (Gazetted)  Service  Recruitment  Rules,  1985  (hereinafter referred to as the "Rules") relates to the filling in of the vacancies by recruitment from direct recruits and  promotees or to maintaining their proportion in the total strength  of the cadre.      3.  The  relevant facts which have given  rise  to  the aforesaid question in the present case are as follows:      The  appellants in Appeal No 1875/1992 [arising out  of SLP  (C)  No.12998 of 1990] are the  State  Government,  the Commissioner of Industries and Madhya Pradesh Public Service Commission while the respondents are the employees under the Directorate of Industries and at present holding the post of Assistant  Directors.  In the companion appeal [arising  out of  SLP (C) No 1807 of 1991], the appellants are the  direct recruits to                                                        857 the  post of Deputy Directors and the  respondents,  besides the State of Madhya Pradesh, the Commissioner of  Industries and  Madhya  Pradesh  Public  Service  Commission,  are  the Assistant  Directors  in  service  of  the  Directorate   of Industries who are also the respondents in the accompany-ing appeal.   Prior to the present Rules of  recruitment,  there were  in   operation  the Madhya  Pradesh  State  Industries (Gazetted)  Service  Recruitment Rules, 1965.   These  Rules among other things, provided that recruitment to the post of Deputy  Director, (Industries) and to the post of the  Joint Director of Industries would be made 100% by promotion  from the  Assistant  Directors  of  Industries  and  the   Deputy Directors  of Industries respectively.  The  present  Rules, i.e.,  1985  Rules made only one change, namely,  that  they provided  that  the  number  of  employees  transferred  and promoted to the post of Deputy director would not exceed 50% of  the  cadre  strength,  the  remaining  posts  of  Deputy Directors  being  filled  in  by  direct  recruitment.   The position  with regard to the promotion to the post of  Joint Director  of Industries from the posts of  Deputy  Directors remained  unchanged.  In other words, the seniority list  of Deputy  Directors whether promoted, transferred or  directly recruited  would  remain common for the  purpose of  further promotion to the post of Joint Directors.      4.  It   is not disputed that initially there  were  66 posts of Deputy Director of Industries in the Directorate of Industries. Nine of the said posts were later transferred to other  departments  and hence the strength of the  cadre  of Deputy   Director  of  Industries  in  the  Directorate   of Industries  was reduced to 57. It, however, appears that  at the relevant time, 8 of the Deputy Directors from out of 57, were promoted to the post of Joint Director. Hence, only  49 posts  of  Deputy Director were occupied by  the  incumbents when in August, 1987 the Government issued and advertisement inviting  applications from direct recruits for eight  posts of  Deputy  Director. Pursuant to the  advertisement,  eight direct  recruits  were selected and appointed  to  the  said posts.      5. About a year later, some of the Assistant  Directors who  are  respondents  in both the  appeals,  filed  a  writ petition in the High Court of Madhya Pradesh challenging the said  appointments.  The  writ  petition  was   subsequently transferred  to  the State Administrative Tribunal.  It  was contended  on behalf of the  petitioner-Assistant  Directors that  Rule  6(2) of the Rules read with Schedule II  to  the

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Rules requires that whenever vacancies occur in the post  of Deputy Director, they should be filled in 50% by                                                          858 promotions  from the Assistant Directors and 50%  by  direct recruitment. Inasmuch  as in the present case all the  eight vacancies  were  filled in only by direct  recruitment,  the said Rule 6(2) was breached and the Assistant Directors were denied  their  legal right to the promotion to the  post  of Deputy  Director.  As against the said  contention,  it  was contended  on behalf of the State and some of  the  directly recruited  Deputy Directors who are appellants in Appeal  No 1876/1992  [arising  out of SLP no.1807 of 1991]  that  Rule 6(2)  read  with  the  Second  Schedule  requires  that  the strength  of  the cadre of deputy Directors  should  at  any point of time consist of not more than 50% promotees and the transferred employees. Since at the relevant date, out of 49 Deputy  Directors,  28  were promotees and  21  were  direct recruits,  the Government had rightly  recruited  all  eight recruits  to conform to the provisions of the said rule.  It appears that when the matter was first heard by the Tribunal by a Bench consisting of the Chairman and an  administrative member of the Tribunal, they differed on the  interpretation of  the said Rule and hence it was referred to the  Judicial Member.   The  learned  Judicial  Member  agreed  with   the Administrative  Member  and  took the  view  that  the  Rule requires that 50% of the vacancies  on  very occasion should be filled in by direct recruits and promotees  respectively. In  that view, the Tribunal held that four of the said eight posts  of  Deputy  Directors have to  go  to  the  Assistant Directors for being filled in by promotion. It is this order that is under challenge in both the appeals.      6.  We are of the view that the impugned order  of  the Tribunal is unsustainable in law. The relevant provisions of Rule 6 are as follows:          "6. Methods of recruitment -[1] Recruitment to  the          service after the commencement of these rules shall          be by the following methods, nemely:-           (a) by direct recruitment by selection          (b) by promotion.          (c)   by  transfer  of  persons  who  hold   in   a          substantive  capacity such posts in such  posts  in          such services as may be specified in this behalf.          [2]  The number of persons recruited  under  clause          (b) or clause (c) of sub-rule (1) shall not at  any          time exceed the percentage                                                           859          shown  in Schedule II of the number of  duty  posts          specified in Schedule I.          X X X X X X"      The  relevant provisions of Schedule II referred to  in clause (2) of Rule 6 are as follows- ----------------------------------------------------------------------          Percentage of the number of duty posts to be filled ---------------------------------------------------------------------- Name of   Name of  Name of  Total No  By Direct    By promo-  Remarks Depart-   Service  Posts    of duty   recruitment  tion of ment                        posts     vide rule    substantive                                       6 (a)        member of                                                    the service                                                    vide rule                                                    6(b) ----------------------------------------------------------------------   1          2       3         4          5           6          7 ---------------------------------------------------------------------- Commerce  Madhya   Joint       6       Nil          100 %

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  and    Pradesh  Director of Industry  State    Industries Deptt     Indust-           ries Gaz-           etted           service                     Deputy      66     50 %         50 %                     Director                     of indus-                     tries/Gene-                     ral Manager/                     Development                     Officer ---------------------------------------------------------------------- x    x    x    x    x    x    x    x    x    x    x    x ----------------------------------------------------------------------      Although   the  heading  of  Rule  6  is  ‘Methods   of Recruitment’ and sub-clause (1) of the said Rule states that the recruitment  to the service shall be  by  the  following methods,  viz., (a) by direct recruitment (b)  by  promotion and  (c) by transfer, the language of sub-clause (2) of  the said  Rule  is  very clear. It states that at  no  time  the number  of those recruited by promotion or transfer,   shall exceed the percentage shown in Schedule II, of the number of "Duty  Posts" specified in Schedule I. Schedule I  specifies 66 posts. As has been pointed out earlier, on account of the transfer  of  9 of the said 66 posts, the duty  posts  which remained in the cadre were 57. Schedule II mentions that the percentage  of the duty posts to the filled in by  promotion would be fifty. Thus, neither Rule 6(2) nor                                                        860 Schedule  II  refers to he vacancies to be filled in. On the other hand, they speak of the percentage of direct  recruits and promotees to be maintained in the posts at any point  of time.  There is no ambiguity in the language either of  sub- clause (2) of Rule 6 or of Schedule II referred to  therein. On a plain reading of both the said provisions, it is  clear that  the  Rule  does  not pertain  to  the  filling  in  of vacancies  when they  occur but to the  maintenance  of  the proportion  between the direct recruits and  promotees.  The Rule  requires  that the proportion between the two  in  the cadre or duty posts should be so maintained that at no  time those  recruited either by promotion or transfer exceed  50% of he duty posts or cadre strength.      7.  Shri  Sakesh Kumar appearing  for  the  respondent- employees in both the appeals referred us to two decisions of this Court, namely, Bishan Sarup Gupta v. Union of India and Ors.,  [1975]  SCR Suppl. 491 and Direct  Recruit  Class  II Engineering  Officers’ Association v. State  of  Maharashtra and   Ors.,  [1990]  2  SCC  752  and  contended  that   the recruitment  rule  in the present case is similar  to  those involved  in  the  said two cases,  and  the  interpretation placed on the rule here, namely, that it referred to filling in  of  the  vacancies and not to  the  maintenance  of  the proportion  of direct recruits and promotees and  the  cadre should  be  accepted  in  the  present  case  as  well.  The submission is misplaced. The language of the Rules in either of  the cases was not similar to that of Rule 6(2)  in  the present  case.  In B.S. Gupta’s case (Supra) what  fell  for consideration was Rule 4 of the Income Tax Officers Class I, Grade  II Service Recruitment Rules of 1945. The Court  held that  the  said  Rule clearly  referred  to  recruitment  of candidates  to  vacancies in the service and  the  vacancies were  such as the Government wanted to fill in whatever  may be the actual number of vacancies. The Court also held  that

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the  said Rule entitled the promotees to 1/3rd of  vacancies in any particular year whether or not there was recruitments to  fill  in the rest 2/3rd of the vacancies in  that  year. There was also no contention raised there that the said Rule related  to  the maintenance of the proportion  between  the direct  recruits  and promotees in the total  cadre  of  the concerned  officers. In Direct Recruit Class II  Engineering Officers’ Association Case (Supra) again on the language  of Rule 1 of Bombay Service of Engineers (Class I and Class II) Recruitment  Rules, 1960, it was observed in para 20 of  the judgment  that  the  ratio of 75 :  25  for  appointment  by nomination  and  promotion  was fixed  for  the  purpose  of appointment  and not for the strength in the service as  was suggested  on behalf of the appellants in that case. It  was also pointed out that the proviso to the                                                        861 said  rule required that the said ratio in  the  appointment had  to  be  maintained as far  as  practicable.  Since  the language  of the Rule clearly referred to the ratio  at  the time  of appointment and not to the proportion  between  the two to be maintained in the total number of posts as in  our case. The said decision is also not applicable to the  facts of the present case.      In  the view we have taken, we set aside  the  impugned decision  dated 4th May, 1990 of the Tribunal.  The  appeals are  accordingly allowed. In the circumstances of the  case, there will be no order as to costs. T.N.A.                                       Appeals allowed                                                        862