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PETITIONER: T.N. SAXENA & OTHERS

       Vs.

RESPONDENT: STATE OF U.P. & OTHERS

DATE OF JUDGMENT07/05/1982

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA VARADARAJAN, A. (J)

CITATION:  1982 AIR 1244            1982 SCR  (3) 719  1982 SCC  (2) 319        1982 SCALE  (1)481

ACT:      U.P. Government  Service-Seniority-Recruitment from two sources-Promotees appointed  first and  direct recruits much later-Seniority of  promotees based on length of service not affected by later induction of direct recruits.

HEADNOTE:      According  to   the  relevant   orders  of   the  State Government,  seniority   in  service  was  generally  to  be determined from  the date  of substantive  appointment in  a substantive vacancy  but. where  appointments to  a  service were made  both  by  promotion  and  direct  recruitment,  a combined  waiting   list  was   to  be  prepared  by  taking candidates alternately from the lists of promoted candidates and direct recruits and appointments made in accordance with that combined list.      The posts  of Senior Marketing Inspector under the Food JUDGMENT: by  way   of  promotion   from  the  category  of  Marketing Inspector. But,  with effect  from April 15, 1964, the State Government  decided  to  fill  up  these  posts  by  way  of promotion as  well as  direct recruitment  in the  ratio  of 50:50.      Respondents 2 to 5 who had entered service as Marketing Inspectors were  promoted as  Senior Marketing Inspectors in September, 1964,  in the quota of promotees. The appellants, who were  direct recruits  to the  post of  Senior Marketing Inspector were  appointed much  later but  were placed above respondents 2 to 5 in the seniority list of Senior Marketing Inspectors issued in 1977 which resulted in the reversion of respondents 2  to 5  from  the  posts  of  Deputy  Marketing Regional Officers to which they had been further promoted in 1974.      Allowing the  petition of  respondents 2 to 5, the High Court quashed  the seniority  list holding that appointments already made  by departmental promotion to substantive posts would  not   be  affected  by  the  direct  recruits  coming subsequently through the Public Service Commission.      In appeal,  the appellants  contended that  the  direct recruits had  to be  adjusted alternately with the promotees even though  the promotees  had been  appointed in their own quota long before the direct recruits joined service,

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720      Dismissing the appeal, ^      HELD 1.  The promotees  were entitled to maintain their seniority as from the date of their promotion and it was not open to  the Government  to  prepare  a  seniority  list  by pushing the  promotees far  below the  position of seniority which they  would legally  occupy merely  to accommodate the direct recruits.  The rule  of alternate  seniority does not mean that  the genuine  seniority based on length of service should be completely overlooked. [726 G]      2. The normal rule is that seniority should be measured by the  length of  continuous officiating  service unless  a contrary intention  appears from  the rules.  In this  case, according to the orders issued by the Government, the length of  service   was  the   prime  criterion   for  determining seniority. [726 A-B]      3. Promotees  regularly appointed  during a  particular period within  the quota  of promotees can claim their whole length of  service for  the purpose  of seniority as against direct recruits  who may turn up in succeeding periods. [726 C]      Bishan Sarup  Gupta v.  Union of India & Ors., [1975] 1 S.C.R. 104  held inapplicable;  N.K. Chauhan & Ors. v. State of Gujarat & Ors. [1977] 1 S.C.R. 1037 and B.S. Yadav & Ors. v. State  of Haryana  & Ors.,  [1980] 1 S.C.R. 1024 referred to.

&      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3148 of 1979.      Appeal by  special leave  from the  judgment and  order dated the 18th May, 1979 of the Allahabad High Court in Writ Petition No. 1372 of 1977.      Dr. Y.S. Chitale and A.K. Srivastava for the Appellant.      R.K. Garg,  G.N. Dikshit,  V.J. Francis,  D.K. Garg, S. Dikshit and Ashok Grover for the Respondents.      The Judgment of the Court was delivered by      FAZAL AIL,  J. This appeal by special leave is directed against a judgment dated 18-5-79 of the Allahabad High Court quashing the  impugned seniority list dated 4.4.77 issued by the Government  of U.P.  (hereinafter  referred  to  as  the ’Government’) which resulted in the reversion of respondents 2 to 5 to lower posts.      The facts  of the case lie within a narrow compass and, in our opinion, seem to be concluded by several decisions of this Court, 721 Respondents 2  to 5  had passed  the High School Examination and entered  the service  of  the  Government  as  Marketing Inspectors  under  the  establishment  of  Food  &  Supplies Department on  various dates  and were  later  confirmed  on these posts.  In fact,  to begin with, the Department itself was temporary  but was  later on  made permanent.  It may be stated  here  that  the  post  of  Marketing  Inspector  was exempted from  the scope  of the  Public Service Commission. The next  higher post in the hierarchy of the Department was that of  Senior Marketing Inspector and previous to the year 1964 these  posts were  filled entirely  by  promotion  from Marketing Inspectors.  As respondents  2 to  5 were  already confirmed in  their original  post of  Marketing  Inspector, they  were   promoted  to   the  rank  of  Senior  Marketing Inspectors with  effect from  September 1964  and since then

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had been  holding the  post until their further promotion as Deputy Marketing Regional Officers in June 1974.      It appears  that right from 7.12.44 upto Sept. 1964 the criteria for  determining the  seniority  of  the  aforesaid employees was  total length  of service  including identical and higher scale of pay. It is not disputed that respondents 2 to 5 fulfilled both the criteria mentioned above. Sometime in 1964, however, the Government took a policy decision that so far  as the  cadre of  Senior  Marketing  Inspectors  was concerned, the  posts would  be filled by two sources, viz., (1) promotion  and (2)  direct recruitment  in the  ratio of 50:50. As  a result  of this decision a very large number of posts were sanctioned to accommodate the direct recruits who were to  be appointed through a competitive examination held by  the  Public  Service  Commission.  The  Government  also ordered that  henceforward the  posts  of  Senior  Marketing Inspectors should  be brought  within  the  purview  of  the Public Service  Commission.  We  have  mentioned  this  fact expressly because  one of  points that was raised before the High Court by the appellants was that respondents 2 to 5 had not been  cleared by  the Public Service Commission nor were their cases  referred to  it. Nothing  much turns  upon this point because  it was  not argued  before us  in the appeal. Moreover,  as  respondents  2  to  5  were  confirmed  hands question of taking the formal sanction of the Public Service Commission would  be more  or less inconsequential and could be given  subsequently with  retrospective effect.  We might further state  another  undisputed  fact-the  posts  of  the Senior Marketing  Inspector at  the time  of the  new policy taken by the Government were increased and respondents 2 to 722 5 who  had been  promoted  purely  in  the  quota  when  the Government decided  to  recruit  the  other  50%  by  direct recruitment.  This  fact  is  rather  important  because  it distinguishes the present case from some of the decisions of this Court  on which  heavy reliance  had been placed by the counsel for the appellants.      The  principles   concerning  the  recruitment  of  the promotees and the direct recruits were contained in a letter of the  Government (Annexure  C to  the  petition)  relevant portion of which may be extracted thus:           "I am directed to address you on the above subject      and to  say that the post of Senior Marketing Inspector      has been  placed within  the purview  of Lok  Seva Ayog      with effect from 15 April 1964. The recruitment to this      post will  now therefore  be  made  on  the  principles      indicated below:      (i)   50% of the posts will be filled by promotion from           amongst the Marketing Inspectors and the remaining           50% by direct recruitment through Lok Seva Ayog.      (ii) Educational  qualifications for direct recruitment           through Ayog  will be  graduate  of  a  recognised           University  with   preference   to   graduate   in           Agriculture.       (iii) Age  limit is  21 to  25 years.  Age  limit  for           departmental candidate  for promotion  will be  40           years. Officials  who start  officiating as Senior           Marketing Inspector  before the  age of  40  years           will, however, be considered for promotion.      (iv) All permanent Marketing Inspectors who have put in           5 years  service, permanent  and  temporary  both,           will be  eligible for  promotion.  No  educational           qualification has  been prescribed  for  promotion           except that  no one  who has  not got  the minimum           qualification shall be eligible for promotion."

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    A perusal  of this  letter would  clearly show that the quota of the promoted Senior Marketing Inspectors was not at all touched  or altered  and  even  the  age-limit  for  the candidates who had been 723 promoted was  extended upto  40 years and it is not disputed that respondents 2 to 5 were within that age-limit.      Regarding the  question  of  seniority,  which  is  the fundamental point  in issue in the appeal, the Rules provide thus:      "(xi) Seniority           Seniority in service shall generally be determined      from the  date of  substantive appointment to a service      or from  the date  of the  order of  appointment  in  a      substantive vacancy.  In special cases seniority may be      determined in  accordance with the conditions which may      suit a  particular service.  If two  or more candidates      are appointed on the same date, their seniority will be      determined according  to the order in which their names      are mentioned in the appointment order.           Where appointments  to a  service are made both by      direct recruitment  and promotion,  a combined  waiting      list would  be prepared  of the candidates recruited by      both the  sources and  appointments made  in accordance      with that  combined list.  The combined  list is  to be      prepared by taking candidates alterantly from the lists      of promoted candidates and direct recruits."      The High Court has rightly construed the aforesaid Rule of seniority  to connote  that appointments  already made by departmental promotion  to substantive  posts would  not  be affected by  the direct recruits coming subsequently through the Public Service Commission. Reliance was, however, placed by the  appellants on  the 2nd  paragraph of  the Rule which stated that  the combined  list was to be prepared by taking candidates alternately  from the list of promoted candidates and direct  recruits. This  clause  has  to  be  interpreted rationally  so   as  to  advance  the  real  object  of  the Government  which   was  merely   to  enlarge  the  area  of recruitment of Senior Marketing Inspectors without affecting the persons who had already been promoted to the higher post long before  even  the  policy  of  taking  direct  recruits through Public  Service Commission  was born.  Unfortunately however after  the direct  recruits  were  taken  as  Senior Marketing Inspectors,  sometime after  1970  they  were  put above respondents 724 2 to  5 who, by the time the direct recruits were appointed, had already  been promoted  even to  a  higher  post,  viz., Deputy Marketing Regional Officers. The High Court relied on a  Government  order  setting  out  guidelines  relating  to seniority which has already been extracted above.      Perhaps the Government was under the impression that as the quota  of 50%  was reserved for direct recruits and they had  come   through  competitive   examination  with  higher qualifications, they  would have to take precedence over the promotees even  though the promotee had occupied the post in their own  quota long before the direct recruits appeared on the scence.  Under this  erroneous impression the Government issued the impugned seniority list of 1977 which has, in our opinion, rightly been quashed by the High Court.      The  first   point  raised   by  the  counsel  for  the appellants was  that in  view of  the fact  that the  direct recruits possessed a higher qualification and were recruited through the  Public Service Commission, they had to be given priority in respect of seniority over the promotees.

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    It  was   further  argued  that  as  a  result  of  the Government Orders,  the direct  recruits had  to be adjusted alternately with the promotees even though the promotees had been appointed  in their  own quota  long before  the direct recruits joined  the service.  We are,  however,  unable  to agree with this somewhat broad and ingenious argument. It is true that where there are two sources of recruitment and the Rules  expressly   provide  that   one  source   would  have precedence over the other, then the position as contended by the counsel for the appellants would have to be accepted. In the instant  case, we are unable to find any such inhibition or prohibition  in the  order passed  by the  Government. In fact in  N.K. Chauhan  and Ors. v. State of Gujarat and Ors. (1) to  which one  of us (Fazal Ali, J.) was a party, it was clearly laid  down that  so long  as the  promotees  do  not exceed their  quota they  were entitled  to  maintain  their seniority as  from the  date of  their promotion, where this Court made the following observations:- 725                "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.           +             +               +              +           Seniority, normally,  is  measured  by  length  of           continuous,  officiating   service-the  actual  is           easily  accepted  as  the  legal.  This  does  not           preclude      a       different      prescription,           constitutionally tests being satisfied.            +             +            +           +                Promotees regularly  appointed during  period           in excess  of their  quota,  for  want  of  direct           recruits (reasonably  sought but  not secured  and           because   tarrying   longer   would   injure   the           administration) can  claim their  whole length  of           service for seniority even against direct recruits           who may turn up in succeeding periods.                Promotees who have been fitted into vacancies           beyond their  quota during  the period  B-the year           being regarded as the unit-must suffer survival as           invalid  appointees   acquiring  new   life   when           vacancies in  their quota fall to be filled up. To           that extent  they will step down, rather be pushed           down as against direct recruits who were later but           regularly appointed within their quota."      This case clearly laid down three important principles. 726      (1)   Normal rule  is that seniority should be measured           by the  length of  continuous officiating  service           unless  a  contrary  intention  appears  from  the           rules.                We have  already shown  from the Rules framed           by the  Government that  the length of service was           determined as  the prime  criteria for determining

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         the seniority.      (2)   Promotees regularly appointed during a particular           period in excess of their quota for want of direct           recruits can  claim their  whole length of service           for seniority even against direct recruits who may           turn up in succeeding periods.      (3)   Promotees who had exceeded their quota would have           to be  pushed down  to accommodate direct recruits           coming after their appointment.      The case of respondents 2 to 5 clearly falls within the first two principles.      The admitted  position is  that respondents  2 to 5 had not exceeded  their quota  of 50% when they were promoted as Senior Marketing  Inspectors. In fact, they were promoted as Senior  Marketing  Inspectors  long  before  the  Government evolved the  policy  of  filling  up  the  posts  of  Senior Marketing Inspectors  by direct  recruits. It  is also clear that none of the respondents had encroached on the 50% quota which was  reserved for  direct recruits under the new Rules framed by the Government.      In these  circumstances, therefore,  it was not open to the Government  to prepare  a seniority  list by pushing the promotees far  below the  position of  seniority which  they would  legally  occupy  merely  to  accommodate  the  direct recruits. The rule of alternate seniority does not mean that the genuine  seniority based  on  length  of  service  by  a previous  employee   should  be   completely  overlooked  or obliterated.      Reliance was, however, placed on an earlier decision of this Court  in Bishan Sarup Gupta etc. v. Union of India and Ors. 727 In this  case also  it was  clearly held  that the promotees could be  pushed down  only if  they had  exceeded the quota allotted  to   them.  In  the  instant  case  not  only  the respondents 2-5  did not  exceed their quota but had secured much higher  promotions by the time the direct recruits came to be  recruited and  had to  be reverted  to lower posts in order to  accommodate the  direct  recruits.  Such  a  gross injustice, in  our opinion,  cannot be  countenanced by  the rules or orders made by the Government nor can such a course of action  be spelt  out  from  Bishan  Sarup  Gupta’s  case (supra).      In B.S. Yadav and Ors. v. State of Haryana and Ors. the earlier decision of this Court in Chauhan’s case (supra) was reiterated  and  Chandrachud,  CJ  speaking  for  the  Court observed thus:           "Is it  proper and  fair to defer the confirmation      of the promotees merely because direct recruits are not      available at  that point  of time  so as  to enable the      High Court  to make confirmations from both the sources      by rotation  ? This,  precisely, is what the High Court      has done  by the  impugned notification dated 25-8-1976      and that  is the  reason why  it has  not confirmed ten      more  promotees  in  Punjab,  for  whom  vacancies  are      available within the quota of promotees.      ...                   ...                    ...           What is relevant is the decision of the Court that      the quota  rule will be enforced at the time of initial      recruitment and  not at  the time  of confirmation ?...      Seniority of  promotees, according  to  this  decision,      could not  be upset  by later  arrivals from  the  open      market,  save   to  the  extent  to  which  any  excess      promotees have to be pushed down."      It  is,  therefore,  clear  from  an  analysis  of  the

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decisions of  this Court cited before us that the quota rule and the  rota rule must be applied in a practical fashion so as not  to cause  injustice to  any employee. In the instant case, as  the Government by virtue of the impugned seniority list had  completely upset the seniority of respondents 2 to 5, the  principles governing the order were directly opposed to what has been held and pointed out by this Court. The 728 High Court,  in our opinion, was fully justified in quashing the seniority list.      Lastly, it  was contended  that the  High  Court  while striking down  the seniority  list has  not struck  down the Government Order  which had  fixed the  rota and  the  quota rule. As  indicated above,  if the  rota and the quota rules are properly interpreted, as held by this Court in the cases cited above,  the Government  order cannot be said to be bad or legally  invalid. The defect lay in the Government itself misconstruing its  own order  while  issuing  the  seniority list, which error was rightly corrected by the High Court.      The Government  shall now  issue a fresh seniority list in  the  light  of  the  observations  made  and  principles enunciated by  this Court  and the High Court so as to avoid any reversion  of promotees  who had  been  promoted  within their quota as senior Marketing Inspectors or above.      For the reasons given above, all the contentions raised by the  appellants are overruled and the appeal fails and is dismissed but  in the  circumstances without any order as to costs. H.L.C.                                     Appeal dismissed. 729