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PETITIONER: U.P. SECRETARIAT U.D.A. ASSOCIATIONTHROUGH ITS JOINT SECRETA

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH & ORS.

DATE OF JUDGMENT:       27/01/1997

BENCH: K. RAMASWAMY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This special  leave petition has been filed against the order of  the Division  Bench of  the Allahabad  High Court, made on  July 2, 1996 in Writ Petition No. 6200/93. When the direct recruits  had filed  the special leave petition, this Court by  order dated  November 20, 1996 dismissed the same. Shri Gopal  Subramaniam,  learned  senior  counsel  for  the petitioners,  who   are  now  promote  U.D.C.  in  the  U.P. Secretariat Service  contends that  the learned  Judges have given their reasoning at pages 58 and 59 thus:      "from the  aforesaid  decisions  of      Hon’ble  Supreme   Court,   it   is      evident    that     the     initial      appointment  of  the  promoters  on      officiating  basis   were  not   in      accordance with  the  Rules,  1942,      rather  it   de  hors   the  rules.      Contention of  the petitioner  that      the quota  as envisaged  in Rule 21      of Rules  1942, has  broken down or      collapsed  simply  for  the  reason      that due  to certain administrative      difficulties neither  the selection      for   direct    recruit   nor   the      selection by  promotion against the      vacancies   took   place   in   the      selection years  with  effect  from      1971 to  1978, and  hence according      to the  decision of Hon’ble Supreme      Court in  O.P. Singhl  vs. Union of      India [(1994) 4 SCC 450] and Direct      Recruit  Class  II  Officers’  Case      (supra),      the       petitioners      (promotees) should  not  be  pushed      down before the appointees from the      other  sources  inducted  into  the      service one later date (proposition      E of  the Direct  Recruit Class  II      case   (supra),   appears   to   be      misconceived. Petitioners, were not

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    at all  prejudiced because  of non-      selection  during   the  for   said      period for  the  reasons  that  the      direct  recruitment  also  did  not      take  place  during  the  aforesaid      period and  that the petitioners in      accordance with  the  seniority  on      the  post   of  L.D.A.  were  given      officiating promotion  on the  post      of  U.D.A.  against  the  vacancies      existing   in    their   quota   or      otherwise. In view of the aforesaid      position, it  cannot be  said  that      the quota rule, as envisaged, under      rule 21 of Rules 1942 has collapsed      down."      The above  reasoning is not correct for the reason that during the  relevant period  neither direct  recruitment nor promotions were  made in  accordance with  the rules.  As  a consequence, since  the  promotees  have  been  continuously officiating on the posts they are entitled to be put back to the date  from which they have been continuously officiating on the ground that rule of quota has broken down. We find no force  in   the  contention.   From  the   judgment  of  the Constitution bench  of this Court in Direct Recruit Class II Engineering Officers’ Association vs. State of Maharashtra & Ors. [(1990)  2 SCC  715], it is now settled law that merely because temporary  appointment or promotion came to be made, seniority cannot  be counted  from the  date of  officiation except when  the appointment  was made  in  accordance  with rules. Though  appointment is  temporary, if  it was made in accordance  with   rules  and   to  a  substantive  vacancy, seniority  will  be  counted  from  the  date  of  temporary promotion. Necessarily,  the quota  and rota  require to  be maintained so  as to  give effect  to the  object  envisaged under the  Rules. Mere inaction cannot be made the ground to contend the  that quota  rule was  broken down. It is not in dispute that  appointments have  been  made  in  officiating capacity  against   the  vacancies   reserved   for   direct recruitment though  no recruitment had taken place. They are not according to Rules and within quota. The Division Bench, therefore, has rightly held that the direct recruit is to be treated from  the date  on  which  he  actually  joined  the service, though  vacancies did  exist prior  to that.  As  a consequence, the  promotees are  also required  to be fitted into the  service from  the date  when they  are entitled to fitment in accordance with quota prescribed under the Rules. The Division  Bench, therefore, has rightly defined to grant the relief to the petitioners.      The special leave petition is accordingly dismissed.