Service Law — Central Excise and Land Customs Group-C Recruitment Rules, 1979 — Determination of inter-se seniority – Recruitment to the post of Inspectors of Central Excise was from two channels : Direct recruitments and promotion from in service candidates – The ratio between direct recruit inspectors (DRI) and promoted inspector (PRI) was 3:1 – The inter se seniority was governed by an office memo dated 22.12.1959 – In view of the experience, the 1959 OM was changed, another OM was issued, on 07.02.1986 – Five promoters promoted in 1983-1984 filed an application challenging the inter se seniority list dated 08.07.1985 on the ground that the length of their continuous service was not taken into consideration while fixing seniority – CAT directed the department to recast seniority in accordance with the 1986 OM – CAT referred the batch of matters to a Full Bench, on the issue as to whether 1986 OM was prospective or retrospective – Full Bench by its order clarified that 1986 OM only operated prospectively from 1.3.1986 – Based on the findings of tribunal seniority list of 1993 was quashed – The cadre controlling authority circulated a tentative seniority list on 01.01.2022 which was finally published on 7.8.2002 – The list was challenged by PRI and the CAT allowed the applications and set aside the seniority list – Central government and DRI filed writ petition before the High Court – High court held that the vacancy register had no relevance for the purpose of promotion of in-service candidates and such promotions could be only in proportion to the quota, based on indents placed by the department with staff selection Board for direct recruitment – Length of continuous service cannot be counted for the purpose of seniority – It upheld the impugned seniority list dated 22.07.2002 – In appeal by PRIs, the main issue was regarding the application of Clauses 4 and 5 of the OM of 1986, whether the ratio of the PRIs has to be drawn with respect to the indented vacancies for DRIs – Held: No appointee from any one channel (direct recruits or promotees) can lay claim to seniority from a date before her or his appointment – Para 5 of the 1986 OM was meant to cater to a contingency that is of underreporting direct recruit vacancies to the public service commission which resulted in an unfair advantage to promotees who would “steal a march” over such direct recruits, appointed later – It was in such contingencies, that is, of under-reporting vacancies, that the consequence of deeming promotions to be adhoc could be resorted to – Materials on record indicate that promotional vacancies did exist, at the relevant period, there was a ban on direct recruitment – During that period, no requisitions were made to the SSC for filling direct recruit vacancies – However, High Court was wrong in concluding that by virtue of Para 5 of the 1986 OM the promotion made during the same period has to be treated as in excess of the quota, because they were not in proportions to the requisition for direct recruitment – This view taken by the High Court is fallacious and it equates executive policy of not filling vacancies, due to financial or other compulsions with deliberate underreporting – In the Instant case, the direct recruitment through the SSC was not resorted to because of a ban, and not due to underreporting – Thus the contingency envisaged under Para 5 never arose – Not only the were promotions made within the quota, and were regular, there were regular vacancies, within the promote quota – No excess promotions took place during the period 1983 and 1991 – Indents/requisitions placed with, the SSC for the recruitment of DRIs were for a part of the vacancies and not for the exact 75% of the actual vacancies available in each year – The date of appointment of direct recruits the date for counting seniority – It is not from the date of receipt of the dossiers from the recruiting authorities or the date of recommendation – Resultantly seniority of direct recruits appointed after 01.03.86 has to be revised only from the date of their respective appointments but not earlier to 01.03.1986 as was done in the impugned seniority list – Those promoted ad hoc basis in any year in the vacancies available to them were eligible for seniority from the date of their continuous officiation, if - they were promoted within their eligible quota of that year under the Recruitment Rules – The consequential action, by way of drawing and publishing a final seniority list, in accordance with the present findings, shall be completed within three months.
Allowing the appeals by PRIs, the Court
Held: 1. The main issue before this Court is regarding application of Clause 4 and 5 of the OM of 1986 in the background of the 1979 Rules, which provide for 75% by direct recruitment and 25% by promotion. The 1986 OM introduced the principle of rotation of quota along with bunching rule. The question in this case is whether the ratio of the PRIs has to be drawn with respect to the indented vacancies for the DRIs. The fall out of this mode of drawing the list is that if in a particular year there are less number of indented vacancies for DRIs or the vacancies are under reported the PRIs lose their right of seniority as given under 1979 Rules. [Paras 33, 34 and 35][25-B-D, F-G]
2. In two judgments (Aghore Nath Dey and Suraj Prakash Gupta) the promotions were made in disregard of the rules; even in excess of their quota, and against direct recruit quota. In Aghore Nath Dey, the promotee’s claim was to seniority prior to their regularization – which was achieved through a special rule, inserted by way of amendment. The claim was that seniority should be given to the promotees, over the direct recruits, who had been appointed earlier. In Suraj Prakash Gupta, promotions were made in excess of the quota and as against posts that should have fallen due to direct recruits, in their quota. The ratio in these decisions is inapplicable, because there is nothing to indicate that the promotees (who were regularized in 1988) exceeded their quota. Furthermore, the department’s pleading, specifically admits that the promotees were appointed against vacancies available to the PRI quota. [Para 51][31-B-D]
3. The court, in K.V. Subba Rao & Ors. v. Government of Andhra Pradesh held that, promotion and seniority shall be reckoned from the date of appointment, not retrospectively from the date when the vacancy arose. The court, in M. Subba Reddy v A.P. State Road Transport Corporation considered a situation where departmental candidates were given ad-hoc promotions against direct recruit vacancies when a ban on direct recruitment was in force. Upon later regularization (of such promotions) it was contended that the regularizations related back and that the promotees were to be accorded seniority over direct recruits, who entered the service. The court rejected this argument. State of Uttaranchal & Ors. v Dinesh Kumar Sharma was a decision, where this court held that the seniority is to be reckoned not from the date when the vacancy arose, but from the date on which the appointment is made to the post. [Paras 52, 53 and 54][31-DE; 32-D, F-G]
4. No appointee from any one channel (direct recruits or promotees) can lay claim to seniority from a date before her or his appointment. Para 5, (which has been the basis of the High Court judgment, to hold that the PRIs were in excess of their quota) was meant to cater to a contingency that is of under reporting direct recruit vacancies to the public service commission (in this case, the SSC) which resulted in an unfair advantage to promotees who would “steal a march” over such direct recruits, appointed later. It was in such contingencies, that is, of underreporting vacancies, that the consequence of deeming promotions to be ad-hoc could be resorted to. The materials on record indicate that promotional vacancies did exist, at the relevant period. There was a ban on direct recruitment. The reasons for the ban are now obscure; but the fact remains that it was in force for six years (1984-90). During this period, undoubtedly, no requisitions were made to the SSC for filling direct recruit vacancies. However, the linear logic, applied by the High Court, to conclude that by virtue of Para 5 of the OM of 1986, the promotions made during the same period had to be treated as in excess of the quota, because they were not in proportion to the requisitions for direct recruitment. This view is plainly fallacious, because it equates executive policy -of not filling vacancies, due to financial or other compulsions with deliberate underreporting, meant to result in unfair advantage to the PRIs. In the present case, direct recruitment through the SSC was not resorted to because of a ban, and not due to under-reporting. Thus, the contingency visualized in Para 5 never arose. Not only were promotions made within the quota, and were regular (as they were preceded by proceedings of the Departmental Promotion Committee, and culminated in regularization, in 1988), there were in fact regular vacancies, within the promotee quota. [Paras 56,
58 and 59][37-C; 38-C-D, G-H; 39-A-C]
5. The existence of PRI vacancies is a matter of objective fact – as can be seen from the replies to the RTI queries. Those vacancies fell to the share of PRIs, in terms of the 25% quota earmarked for them, under statutory rules. In such circumstances, to say that those promoted, by resort to DPCs and regularized later, should be treated as ad-hoc promotees, would be contrary to express rules. In other words, by giving effect to Para 5 of the 1986 OM, (and treating the promotions as ad-hoc for purposes of inter se seniority), the statutory rules are virtually given a go bye. It is also contrary to the stated objective sought to be achieved by Para 3 of the 1986 OM, which is to “present practice of keeping vacant slots for being filled up by direct recruits of later years, thereby giving them unintended seniority over promotees who are already in position, would be dispensed with.” The promotions of the PRIs before the court therefore, have to be treated as regular. The court is of the opinion, that the reasoning of the High Court, in overlooking these aspects, is clearly in error. [Para 60][39-D-F]
6. The other aspect – which the High Court ignored, is that a number of vacancies were filled from amongst the quota for compassionate appointment, and the sports quota. They were not reported to the SSC. In such circumstances, to treat the promotees as exceeding the quota set apart for them (though as a matter of fact, they were accommodated within the quota) is not warranted. Furthermore, the materials on record also show that though there was a ban on direct recruitment, it did not apply to vacancies which were to be filled up by way of promotion in terms of the Recruitment Rules. [Para 61][39-G-H; 40-A]
7. High Court fell into error in setting aside the order of the CAT, which is restored. It is held that (i) No excess promotions took place during the period 1983 and 1991. 25% of the actual vacancies arising every year during that period were for the promotees. No direct recruit vacancy for any year was filled by promotees. (ii) Indents/requisitions placed with, the SSC for the recruitment of DRIs were for a part of the vacancies and not for the exact 75% of the actual vacancies available in each year. (iii) The record does not bear out instances of suppression or underreporting of vacancies available for direct recruits out of the permanent cadre strength in any year, to help the promotees. As a result, there is no justification for invoking para 5 of the O.M. of 1986. The department erroneously proceeded as if there were excess promotions by wrongly estimating the promotee quota on the basis of the indents placed for direct recruitment; (iv)(a) The date of appointment of direct recruits the date for counting seniority- it is not from the date of receipt of the dossiers from the recruiting authorities or the date of recommendation. Resultantly seniority of direct recruits appointed after 01.03.86 has to be revised only from the date of their respective appointments but not earlier to 01.03.1986 as was done in the impugned seniority list, (b) Direct recruits of 1992 could be given seniority only in that year but not earlier, or in 1991 as was erroneously done in the impugned seniority list; (vi)Those promoted ad hoc basis in any year in the vacancies available to them were eligible for seniority from the date of their continuous officiation, if -they were promoted within their eligible quota of that year under the Recruitment Rules. The impugned judgment and order is set aside accordingly; the appeals by the PRIs are allowed in the terms of the findings of the Court. The consequential action, by way of drawing and publishing a final seniority list, in accordance with the findings, shall be completed within three months. [Paras 62 and 63][40-B-H; 41-A, D] State of West Bengal & Ors v Aghore Nath Dey & Ors. (1993) 3 SCC 371 : [1993] SCR 2 919 ; Suraj Parkash Gupta v State of J& K (2000) 7 SCC 561 : [2000] 3 SCR 807 – held inapplicable.
Pawan Pratap Singh v. Reevan Singh (2011) 3 SCC
267 : [2011] 2 SCR 831; P. Sudhakar Rao & Ors. v U. Govinda Rao & Ors (2013) 8 SCC 693 : [2013] 13 SCR 540 – relied on.
Devindra Prasad Sharma v State of Mizoram (1997) 4 SCC 422 : [1997] 2 SCR 930 ; K.V. Subba Rao & Ors. v. Government of Andhra Pradesh (1988) 2 SCC 201 : [1988] 2 SCR 1118 ; M. Nirmala v. State of AP (1986) 3 SCC 647 : [1986] 3 SCR 507 ; M. Subba Reddy v. A.P. State Road Transport Corporation (2004) 6 SCC 729 : [2004] Supp 2 SCR 7 ; State of Uttaranchal & Ors. v Dinesh Kumar Sharma (2007)1 SCC 683 : [2006] Supp
10 SCR 1 ; AFHQ/ISOs SOs (DP) Association & Ors. V. Union of India (UOI) & Ors (2008) 3 SCC 331 : [2008] 2 SCR 1183 ; State of U.P. v. Ashok Kumar Srivastava, (2014) 14 SCC 720 : [2013] 11 SCR 846; K. Meghachandra Singh v. Ningam Siro (2020) 5 SCC
689 : [2019] 16 SCR 651; Dinesh Kumar Gupta & Ots v High Court of Judicature, Rajasthan 2020 SCC OnLine (SC) 420 : [2020] 10 SCR 497 ; Direct Recruit Class II Engg. Officers’ Assn. v. State of Maharashtra (1990) 2 SCC 715 : [1990] 2 SCR 900 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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