Holding

The seniority lists drawn up on the quota‑rotation principle violate Articles 14 and 16 and are quashed; a fresh seniority list must be prepared and all subsequent promotions readjusted.

Summary

The petitioners, recruited to the Indian Foreign Service (Branch B) through limited departmental examinations, were promoted to integrated Grades II and III and placed in seniority lists dated June 1979 and June 1983. They challenged these lists, arguing that the lists were prepared on a quota‑rotation system that gave later direct recruits seniority over earlier departmental promotees, violating Articles 14 and 16 of the Constitution. The Court examined the statutory framework, particularly Rules 13, 21, 25 and 29 of the 1964 Service Rules, and held that the quota rule was mandatory but had been repeatedly relaxed without recorded justification, rendering the rota‑based seniority invalid. It further ruled that continuous officiation under Rule 21(4) confers seniority, and that the seniority lists, not being based on this principle, were unconstitutional. Consequently, the seniority lists were quashed, a fresh list was ordered, and all promotions made after the filing of the petitions were to be readjusted.

Issues considered

The validity of seniority lists prepared on a quota‑rotation basis under Rule 25(1)(ii) in light of Articles 14 and 16.
Whether Rule 25(1)(ii) can be applied when the quota rule under Rule 13 is not adhered to.
The effect of the power to relax statutory provisions under Rule 29(a) on the legality of promotions exceeding the quota.
Whether continuous officiation under Rule 21(4) provides a valid principle of seniority.
The appropriate remedy for the petitioners if the seniority lists are found unconstitutional.

Legislation cited

Constitution of Indias. Article 14, s. Article 16, s. Article 309
Indian Foreign Service (Recruitment, Cadre, Seniority and Promotion) Rules, 1964s. Rule 13, s. Rule 21, s. Rule 25, s. Rule 29

Subjects

Article 14Article 16quota rulerota ruleseniorityIndian Foreign Serviceservice lawRule 25Rule 21Rule 29equality of opportunitypublic service recruitment

Judgment

. 431
.A
G.S. LAMBA & ORS.

v.

UNION OF INDIA & ORS. B

March !21985

[D.A; DESAI AND v. KHALID, JJ.]
,c
·cons(itution of India, 1950 Articles 14 and 16

Service-Constitution of-Recruitment from more then one source and
quota prescribed for each source-Quota rule of recruitment inter linked with
• rota rule of seniority,__iJeviation and departure in implementation of service
rule-Interference whether artises. f!D

Indian Foreign Service, Branch·•n• (Recruitment, Cadre," Seniority and
Promotion) Rules 1964, Rules 13,21 (4) and 25 (i) (ii) & 2F and 29(a).
Pro1notees and direct recruits-Fixation of seniorty-Promotees promOted to
substantive vacancies on temporary basis-Continuous officiation whether
confers advantage of seniority over-later recruits. E

Power of relaxation of statutory 5ervice rules-Fai/Ure to record reasons
-:Whether quota fixed for direct recruitment catJ be' r"elaxi!d.

The Indian Foreign Service Branch 'B' was constitued in 1956~ The
'r-·· statutory rules Indian Foreign Service Branch 'B' (Requitment, Cadre, Seniority
,F
and Promotion) Rules, 1964 came into force from May 6, 1964. Commencing
from the advent of the Rules, recruitment from three sources were made (i)
direct recruitment on the result of a competitive examination held by the Union
Public Service Commission, (ii) substantive appointment of persons included
in the selective list promoted on the basis of a limited· c9mpetitive examination
held by the U.P.S.C. and (iii) Promotion on the basis of seniority. G

Rule 13 provided for recruitment to posts in the integrated Grades II
and III of the General cadre, and that temporary vacancies shall be filled by
appointment of persons included in the selec"t list. Rule 21 laid down a
general. provision for fixing of seniority, while sub-rule (4) thereof, prOvided
that persons promoted or recruited on the basis of an earlier selection or recuit- 'H
roent; shall be senior to those promoted or recruited on the basis of an earlier
SuPR~Mll COURf R~POR fs ti 9~51 3s c.fL
selection or recruitment, shall be senior to those promoted or recruited. on the
basis of a subsequent selection or recruitn1ent. Rule 22 to 24 provided for
seniority inter-se of direct recruits, and seniority inter·se of officers promoted
to a grade on the recommendations of a departmental promotion committee.
Rule 25 provided for seniority inter-se of the officers appointed to a grade from
different sources.

B
By a notification dated February 12, 1975, Rule 13 was amended to
provide that recruitment to the three different sources of integrated Grades
II and III to be: (i) !/6th of the sub~antive vacancies to be filled in by direct
recruitment, (ii) 33!% of the remaining 5/6 of the vacancies to be filled on
the basis of results of the limited competitive examination, and (iii) the remai·
ning vacancies to be filled in by promotion on the basis of seniority.

The petitioners in the Writ Petitions were selected by the Union Public Ser
vice Commission according to the merits obtained at the examination of Assis~
tants conducted for the purpose for appointment to the post, and ·allocated to
the _Ministry of External Affairs. After the initial constitution of the service in
.1956, they \\'.!?re offered. an Option whether they would like to join the I.F.S.
Branch 'B' in grade IV. They opted and were inducted into the service. Later, •
they were promoted between 1976 and 1979 ffom grade IV to the- integrated
grades II and III . The Government of India published a seniority list of the
integrated grades II and III as on June 25, 1979 and before objections taken by
.the petitioners to the seniority list were dealt with, another seniority list was
. published on June 30 1983.

The petitioners assailed· the aforesaid seniority lists as violative of the
constitutionally guaranteed equality of opportunity in the matter of public
service in asmuchas direct recruits who crune into the .service long after the
dePa.rtmental .pre:m~t~s ~ere regularly promoted have been assigned seniority
over the earlier prornoted departmental promotees. It was further contended,
that the seniority list of June 30, 1983 was objectionable as it leaves blank
spaces for fliture recruits either as direct recruits or by limited departmental
'F . examination and who are yet to come into the service to be placed over promo·
tees·like,the petitioners _wJ:io were already in service for a long time. The
seniority lists having bCen drawn up on the principles of quota-rota and on fhe
.facts of the case and the relevant rules were violative of Articles 14 ·and 16.

The writ petitions were cont_ested by the Central Governments contending
·~G that the seniority lists were drawn up in accordance with the principles governing
seniority in the grade as per Rule 25, and that were recruitment to a service was
. from more than one source and each source was assigned a quota of vacancies,
-the siniority was to be determined according to rota keepirig in view the
available vacancies to each source. While departmental promotion is made after
the Depa"rtmentill Promotion Committee makes recommendations recruitment
.,H "through examiDation is ti.me consuming there is a time gap between publication
.>. ' of results and joining of candidates and it is therefore not practically possible
-· to striCtly adhere to the quota in any particular year. The Administration
"
. •! a:i WlaA v. lrntON
· ovel'C11iie this difficulty by rotation of· vacancies cnsurinz that over a period of ~. A
; time the required quota was fully met. Bia~ spaces _were left in the seniority
liSt-for _giving seniority to persons who have still nOt joined service and are
likely to join at an . uncertain date. This process , would not push down the
· ~niority of the petitioners as they would occupy the same serial No •. in the
seniority list.

, When the Wrlt Petitions were being heard, Respondent No. 26 appeared
·B
and contested 'the claim Of thC petitioners contending that all Assistants in
Gcide IV who put in _tbC required numbei of Years of servicC were eligibte·for
participating in . the_ limited ·departmental :examination; promotions baSed on
· the result ot such an exanlination would therCfore not be violative of Art. 14
,. Delay in holding of the examination cannot wo"rk to the disadvantage of those.
who had taken the examination and qualified for promotion and therefore they
· ', should be accommodated in the vacancies· \vhich had come into existence and
where available for the quota from -the date the vacancies came into existence .•
:-.The two ·1 sCniority·- lists were consequently valid and in consonance with the
statutory niles. · ·. -

Allowing the Writ Petitions, D

HELD : (1) · The impugned seniority lists challenged by the petitioners
have been·· drwan up in violation ·-of the provisions of Arts. 14and16 of_the
Constitution and therefore· they are quashed. The first respondent is directed
to draw up fresh seniority list. All promotions - granted since the filing o(. the
petitions must be readjusted. (460B·CJ
• E
Jn the inst.int. case;; _direct"- recruitment . had not been made for; years.
LiinitCd Competitive CxaminatioD. had atS:o not been held for years.. Promotions
from the select list had been presumably in excess of the quota but the promo·
,- ' tees were appoint"ed to substantive vacancies in the service and had been holding
the posts as in the case of the petitioners for over 6 to .8 years. The promotions
were not styled as temporary, adhoc or stop gap. The impugned seniority ... F
• lists"were dnlwn up by rotatina: vacancies for each source, ana jf no_ recruitment
was made from that source in a given year, the place in the list available to
that source was kept open and a later recruit at any distance of.time from- that
source would be assigned that place over persons who were already recruited
from other sources and would be working in_ substantive vacancies •. The direct
• ; recruit thus scores a march over a promoteC. . The seniority list is consequently
: , violative of Articles 14 and 16 and therefore deserves to be quashed. · .-: 1 ·c _
,. (453E ; C-DJ
~·

(2) Once the promotees were promoted regularly to substantive
vacancies Cveri if temporary unless "therC was a cha"oce of their demotion to the
- lower cadre, there_·continuous-·omCiation confers on -them an' advantage of
bCing senior to the later recruits under Rule 21(4)~ If by the enormous depar· ,, H
lure or by the power to relax, the -quota"iu!C:·was not adhered to,- the rota rule
ti 9ssi 3s.c.R.
for inter-se seniority as prescribed ·in Ru~e 25(i){ii) ·cannot"-be given.effect." Jn
the absence of any other valid principle of seniority it is well established' that
continuous officiation in the cadre, grade or service will provide a ·valid
principle of seniority. The seniority lists having not been prepared on this
principle are liable to be quashed and set aside. [459G-H ; 460A]

B (3) Where recruitment to a service or a cadre is from more than one
source, the controlling · authority can prescribe quota for each source. where
the quota is prescribed, a rule of seniority by rotating thC: vacancies can be a
valid ru1e-for seniority. However if the rule of seniority is inextricably inte~
twined with the quota rule and there is enormous deviation from the quoia
rule, it would be unjust, inequitous and unfair to give effect to the rota rule.

c ... !45613-C]
A. Janardhana v. Union of India & Ors. [1983] 2 SCR 936. B.S. Gupta
v. Union of India [1975] Suppl. SCR 491., A.K. Subramana v. Union of
India [1973] 2 SCR 979., P.S. Mohal and Others v. Union of Indio & Ors.
AIR 1984 SC 1291., O.P. Sing/a and Anr. v. Union of India & Ors. AIR 1984
SC 1595., S.C. Jaisinghania v. Union of India & Ors. [1967] 2 SCR 703.,
Bishan Sarllp Gupta etc v. Union of India & Ors. (1~75} l SCR 104, referred
D to.

(4) What is known in service Jurisprudence as seniority according to
continuous officiation in the cadre from the grade has been statutorily recognised
in Rule 21(4). This is in tune with fairplay and justice and ensures equality
as mandated by Art. 16. [454E]
E
(5) A block o,f recruits in a given year coming from three independent
sources may be integrated inter-se according to quota and rota. The block in a
subsequent year would be always junior to the bloc of recruits in the earlier
years. This is how Rules 21(4) and 25(i) (ii) can be harmoniously read and it is
unquestionable that they operate in two different situations and both have to be
given effect to. [455A-B]

(6) Rule 29(A) confers power to relax any of the provisions of the 1964
Rules· and this also comprehends Rule 13(1) which prescribes quota. When
the power to relax any Of the provisions is exercised, the ContrOlling Authority
must be of the opinion that it is necessary of expedient so to do for reasons
to be recorded in writing. Failure to record reasons will not invalidate the
exercise of power. Once the power ·to relax a: mandatory rule exists and act_ion
in derogation Or the rule has been repeatedly taken year after·year~ it·WOuld· be
a permisible inference that the action was taken in relaxation of the rule for
which the power exists. (457B-C}

Bachand Singh and Anr, v. Union of India & Ors. [1972] 3 SCR 898.,
Montreal Street Railway Company v. Normandi, AIR 1977 P.C. 142., State of
H U.P. v. Manboden Lal Srivastava (1958} SCR 533, N.K. Chandan .and Ors. v.
State af Gujarat [1977] 1 SCR 1037, referred to.
It s. w.iBA v. UNION (besal, },) 435 ,1 _.

ORIGINAL JURISDICTION A /.
Writ Petilion (Civil) No. 13248 lO 13257 of 1983 ·
L·

(Under Article 32 of the Constitution of India)

Madan Bhatia and Sushi/ Kumar for the Petitioners.
B
N.C. Talukdar, M.K. Ramamurthy, . R.N. Poddar, A.K. Nag,.
and M.A. Rehman for the Respondents. . •.
Respondent No. 26 in person.
,,
The Judgment of the Court was delivered by
c,
DESAI, J. We are back to square one. The same rigmarole
of unending disputes as to inter-se seniority between jlromotees, ,
direct recruits and recruits as per the result of the limited competi' :·
tive examination with quota-rota as the guiding star for determinfog'
inter se seniority are put in the lap of the Court. _
This time the service is the Indian For.eign Service Branch. 'B'
('IFS 'B' for short). This service. was constituted by the memo ran-: .
dum of Govt. of India, Ministry of External Affairs dated July)6, .,
1956. The service was consisted of two cadres; a general cadre and
two sub cadres l) Stenographer sub-cadre and 2) Cypher sub-cadre
forming what is styled as special cadre. The general cadre com,. E
prises6 ·grades. Various provisions were made in the, Memorandum,
for recruitment to various grades. Para V proVided for general
conditions of eligibility for appointment in the service at the initial :
constitntion. Para VI provided that recruitment to grade I, !Land
III of the general cadre will be made on the recommendations of
F
~the _Senior Selection_ Board . of which the ~h.airman ~Ill b~ the·
Chairman of the Unton Pubhc Service Comm1ss10n or h1s.nom10ee.
• Selec.tion to other grades will be made by the Junior Selection Boa;d
in consultation with Union Public Service Commission. Para VIII-..
proviped for in\er se seniority of persons selected . for grades I, n.
and III.of the general cadre. Appendix to the Memoran<l_um .sets . - G·-
out sanctioned strength of posts in various· grades of1FS. 'B' and 'the. ·'
scales :of:PJ!Y attached to each grade.

Petitioners were selected by the Union Public Service Commis- ·
siori according to the merits obtained at the examination conducted• ·
for the purpose in 1955 for appointment to the post 9f Assistant, ·
and were allocated-to the Ministry of External Affairs. After' ihc ·· H ii
. ' -_.·_ .....
sui!R!lME CdiiRf REPORtS h9ssj 3s.c.it
A' initial constitution of the service in 1956 petitioners were offerred
an option whether they would like to join IFS 'B' in Grade IV at
the time of its initial constitution. The memorandum constituting
the service provided that future maintenance of the service would
be governed by the rules to be promulgated for the purpose by the
Central Govt. Accordingly by its notification dated May 6,1964,
B the Govt. of India, Ministry of External Affairs in exercise of all
the powers conferred by Art. 309, promulgated Indian Foreign
Service Branch 'B' (Recruitment, Cadre, Seniority and Promotion)
Rules, 1964 ('1964 Rules' for short). By the afore-mentioned rules,
grades II and III were integrated and the grade was styled as integ-
rated grade II and III in general cadre.
c
Petitioners came to be 'promoted between 1976-1979 from
grade IV to integrated grade II and III. The Govt. of India publi-
shed. a seniority list of officers in the integrated grade II and. III of
the general cadre of'IFS 'B' as on June 25,1979. Petitioners con-.
0 t,C tend that the seniority list is violative of the constitutionally guaran-
teed 'equality of opportunity in the matter of public service· inas
much as direct recruits who came into service long after the depari-
menfal promotees were regularly promoted to the aforementioned·
grade have been assigned seniority over thO"earlier promoted depart- :
mental promotees. Before objections taken by the petitioners to ..
E the seniority list were dealt with the Central Govt. in supersession :
of seniority list dated June 25,1979 published another seniority list
of the officers in integrated grade II and III of IFS 'B' as on June
30, 1983. Petitioners contend that the seniority list dated June·'
30,1983 suffers from the same vice and is all the more objectionable
inasmuch as it leaves blank spaces for future recruits either as .
F \ direct rdcruits or by limited departmental examination and who
are yet to come into service to be placed over promotees like the .
petitioners who have already been in service for a long time. ·The
petitioners contend that the impugned seniority list appears to have
been drawn up on the principle of quota-rota and that in the facts
G .~ of this case and the relevant rules it is violative of Art. · 14 and
16 of the Constitution. Petitioners also assert that if Rule 25(1)
(ii) i~ not. construed harmoniously with Rule 2i of the 1964
Rules, Rule 25(1) (ii) would be violative of the gurantee. of
equal~ty enshrined in Art. 16. To be precise, the contention is that
where there is recruitment to a cadre from more than one source
and the recruitment has to conform to the quota prescribed for each
H
source, simultaneously interlinking the inter-se seniority in respect·
b. S. tAMBA v. UNION (bestiJ, J.)
of recruits entering service from different sources to the quota for A
each source, if the quota reserved for any source is not filled in for
a long time and the vacancies allotted to .the source arc carried
forward and the later day recruits from that source are given deemed
seniority over the earlier recruits from the other sources, it has
the pernicious tendency to give an undeserved advantage to a later
recruit over the earlier recruit and it would be violative of Arts..14
and 16. If it is held that Rule 25(1) (ii) has precedence oyer Rule
• •

21, then Rule 25(1) (ii) is unconstitutional inasmuch as failure to
recruit enough number of perso.ns to the extent of the quota reser-
ved for the source in a reasonable time, in the. absence of any power
to carry forward vacancies available to that source, the rota rule of
Cl'
seniority would be discriminatory in character and lead to denial
of equality in the matter of appointment to public· service. It was
submitted in such a situation the rota rule would break down under
the weight of massive departure from the quota rule, and the senio-
• rity rule being inextricable inter-twined with the quota rule if given
effect to would be unjust, unfair and inequitous and would be viola- n'
tive of Art. I 4.

The Under Secretary in the Ministry. of External Affairs filed
an affidavit-in-opposition. Averment in Para II of the petition that
petitioners were working as permanent section officers in the integra-
ted Grade II and III in the general cadre of the IFS '.B' was not E
controverted. After referring to Rule 13 of the 1964 Rules, it was
stated that both the impugned seniority lists were. drawn. up in
accordance with the principles governing seniority in the grade as
per Rule 25. It was stated that where recruitmenMo a service or
cadre is from more than one source and each source is assigned a
quota of vacancies, in order to do justice to recruits from all sources, F
• the seniority is to be determined according to rota keeping in view
the available vacancies to each source. It was conceded that in
integtated grade II and III, the recruitment is done from three
~ifferent channels and quotas have been fixed for all these channels;
but the recruitment is not done at the same time. While the depart- d

mental promotion is made after departmental promotion committee G
makes recommendations, the recruitment through examination is
time-consuming because there is a .time gap between publication of
results and joining of candidates. It was further stated that it is not
practically possible to strictly adhere to the quota in any particular
I
year because candidates nominated by the Union Public Service
H
Commission may even decline to join service and additional candi-
,

!· < l. 1 ,.

438 Surui.!E COURT Rili>oa±S l198Sl 3 s.c.il.

A dates can be taken from subsequent examinations only. It was
A further submitted that the administration overcomes this difficulty
by adhering to the quota by rotation of vacancies ensuring that over
a period of time, the quota requirement is fully met. The two
impugned seniority lists were sought to be sustained on the footing
that t,y and large quota was adhered to and a slight delay or varia-
B tion in time schedule would not permit an inference that as the quota
t.1 rule was not adhered to, the rota rule of seniority cannot be given
effect. Replying. to the averments made in the petition that vacan-
cies allotted to each source and not filled in at the relevant time
were being carried forward for years and that when the carried
forward.vacancies were filled, the recruits were giveu retrospective
c., deemed date for seniority relatable to the coming into existence of
the vacancy for that source without such a provision being found in .
the relevant rules, it was stated that vacancies have been carrieo
forward, if at all because of the non-availability of the candidates
and in the absence of a stipulation in the relevant rules permitting
diversion of vacancies from one quota to another, it was inevitable •
D,, that the quota of vacancies allotted to a source have to be carried
forward. Replying to the averments that in the impugned seniority
list blank spaces have been left open for giving seniority to persons
who have still not joined the service and are likely to join at some
uncertain date, it was submitted that this process would not push
E down the seniority of the petitioners as they would occupy the same
· serial No. in the senioriiy list.
'
When the matter was being heard in the Court, one Radhey ·
Shyam Aggarwal, respondent No. 26 in the petition appeared and
filed his affidavit. He was recruited to Grade IV IFS 'B' in 1964
F through the open competitive examination held by Union Public
' Service Commission. He was promoted to integrated Grade II and
III on the result of the limited departmental competitive examination
held by the Union Public Service Commission in 1977. He stated
that all Assistants in the Grade IV who have put in the required
number of years of service are eligible for participating in limited
G departmental examination and that as the equality in this behalf is
' guaranteed to all those similarly situated, such holding of examina-
tion arid promotion based on the result of the examination would
not violate Art. 14. Referring to Rule J3, he stated that the recruit- )

ment to the integrated Grade II and III is from three independent
sources with quota of vacancies assigned to each, the quota should
H
.I be more or less adhered to so as not to give any unintended benefit
•
G. s. LAMBA v, UNION (Desai, J.) 439
,,
to individuals entering through. the source of recruitment over A
others. It was stated that accepting the contention of the petitioner
would tantamount to giving unintended benefit to the promotees
promoted in excess of the quota temporarily. It was further stated
that delay in holding of the examination cannot work to the disad-
;vantage of those who have taken the. examination and qualified for
promotion and therefore they · should be accommodated in the B
vacancies which have come into existence and were available for the
quota from the date the vacancies. came into existence notwith-
standing the fact that the examination was held at a later date and
the results were published still later and appointment was made
thereafter. In short, he submitted that the two seniority lists were
valid and in consonance with the statutory rules. c
Before we proceed to examine the contention of the petitioners·
on merits, it is necessary to refer to the rules of recruitment and
seniority relevant to Integrated Grade II and III. Rule . 13 which
provides for recruitment to posts in the Integrated Grade II and III
D
of the general cadre reads as under :

"13. Recruitment to posts in the Integrated Grades II. and
• III of the General Cadre :
1. (a) One sixth of the substantive vacancies, in the Inte-
grated Grades II and III of the General Cadre E
shall he filled by direct recruitment on the results
. of competitive examinations held by the Commis-
sion for this purpose from time to time. The
remaining vacancies shall be filled by the substan-
tive appointment of persons included in the Select
List for the Integrated Grades II and III of the F
• General Cadre. Such appointments shall be made
in order of seniority in the Select List except when,
for r.easons to be recorded in.writing, a person is
not considered fit for such appointment in bis ,,
turn. G
(b) Temporary vacancies in the Integrated Grades II
and III of the General Cadre shall be filled by the
appointment of persons included in the Select List
for the Integrated Grades II and III of the General
Cadre. Any vacancies remaining unfilled there- H
after shall be lil!e\I first from among the persons
440 SUPREME COURT REPORTS [1985) 3 S.C.R. •
A approved for inclusion in the Select List and there-
' after by the temporary promotion on the basis of
seniority subject to (he rejection of the unfit of
permanent officers of Grade IV the General Cadre
and Grade II of the Cypher Sub·Cadre who have
rendered not less than eight years of approved
B service in any one grade or the two Grades and
.. :
~

are within the range of seniority. Such promo-
tions shall be terminated when persons included
in the Select List for the Integrated Grades II and
II I of the General Cadre become available to fill
c vacancies.

(2) The Select List referred to in clauses (a) and (b) of sub-
rule {I) shall be prepared in the following manner:

(i) 33-1/3 per cent of the quota for inclusion in the
D Select List shall consist of persons to be promoted
' on the basis of a limited competitive examination
to be held by the Commission for this purpose
from time to time ; and
•
(ii) the rest of the promotion quota for inclusion in
E the Select List shall consist of persons to be pro-
moted on the basis of seniority subject to the
rejection of the unfit of the officers of the Grade
IV of the General Cadre and Grade II of the
Cypher Sub-Cadre who have rendered not less than
eight years of approved service in any one Grade
p
or both the Grades.

Provided that if any person appointed to such a •
Grade is considered for promotion to the Integrated
Grades Ir and III of the General Cadre in accordance
with the provisions of this sub-rule, all persons senior
G
to him in that Grade shall also be· considered notwith-
standing that they may not have rendered eight years
of approved service in that Grade or Grades, as the
case may be.

lJ (3) The Controlling authority shall, from time to time lay ·
\)own t)le ratio i11 w)lich the available vacancies in the
G. s. LAMBA v. UNION (Desai, J.) 44t
Integrated Grades II· and Jll of the General Cadre shall
A
.be filled from Grade ~V of the General Cadre and
Cypher Assistants of the Cypher Sub-Cadre. This ratio
shall be fixed, as far as possible, on 'the basis of the
relative strength of the respective cadre posts.

Illustration : If the strength of Grade. IV of the General B
Cadre is 720 and that of the Cypher
Assistants of the Cypher Sub·cadre 120,
the ratio for .promotion shall be 6 : !."

·~ Chapter III contains provisions for fixation of seniority in different
-v grades. Rule 21 lays down a general provision for fixing of C
seniority. Sub-rule 4 is relevant, which reads as under : .• 1

·'"21. (4) Subject to the other provisions of this rule, persons
promoted or recruited earlier on the basis of earlier
• selection or recruitment shall tie senior to those prom°'
ted or recruited on the basis of subsequent selection or D
recruitment.''

Rule 22, 23 anci 24 provide for seniority inter-se of direct recruits,
•
seniority inter-se of officers promoted on the results of limited
competitive examination and seniority inter-se of officers promoted
to a grade on ·the recommendations of a departmental promotioµ E
committee respectively but .amongst themselves. Then comes
Rule 25 which provides for seniority inter·se of the officers appoin;
ted to !1 grade from different sources. It reads as under : ·

· "25. Seniority lnter-se·or the officers appointed to a Grade
from different sources.
"
(!) Integr~ted Grade II & III of the General Cadre ..

(i) The eligible persons in Grade IV of the General
Cadre and Cypher Assistants of th.e Cypher Sub-
Cadre shall be arranged in separate lists in the
order on their relative seniority in their, respective
Grades. Thereafter the Departmental Promotion
Committee shall select persons for promotion from
each list upto the prescribed quota as. indicated in
rule 13 and arrange all the persons selected from
th.e twp )ists in a COl)So)i(lated order of merit which H
•
442 SUPREME COURT REPORTS !19851 3 s.c.R.
' .
will determine the seniority of.persons on promo-
tion to Integrated Grades II and III of the General
Grade.
..
(ii) · Direct recruits to a Grade and persons substan-
tively appointed to the Grade from the Select
List for the Grade shall be assigned seniority inter-
. se according to the quotas of substantive vacancies
in the Grade reserved for direct recruitment and
the appointment of persons included in the Select
List, respectively."

0 i 964 Rule have been enacted in exercise of power conferred by the
proviso to Art. 30~ of the Constitution and are thus indisputably
'".
statutory in character. Recruitment to Integrated Grade II and III
of the general cadre is from two independent sources namely (i)
direct recruitment on the result of a competitive examination held
by the Union Public Service. Commission for this purpose from time •
to time and (ii) by. the substantive appointment of persons included
in the Select List for Integrated Grade II and III of the General
Cadre. The Select List for the purpose of filling vacancies by sub-
l'tantive appointment has to be prepared from persons coming from •
tw~ independent sources as required by Rule 13(2) namely persons
to ·be promoted on the basis of a limited competitive examination to
be held by the Commission for this purpose and promotion from
Grade IV for inclusion in.the Select List on the basis of seniority in
Oradd IV of the General Cadre and Grade II of Cypher sub-cadre,
who have rendered not less thari 8 years of approved service in any
grade or both the grades. In short, recruitment to Integrated Grade
II and'iii will be from three sources: (il I/6th of the substantive,-..(
vacancies to be filled in by direct recruitment on the result of a \-
competitive examination to be held by the Union Public Service '
Commission, (ii) 33l% of the remaining 5/6th of the vacancies had
to be filled in by bringing them on the Select List on the ·basis of the
res,;lts. ,·of a limited competitive examination and the remaining
vacancies to be filled in by promotion on the basis of seniority from
Grade IV of General cadre or Grade II of Cypher cadre who have
rendeied not Jess than 8 years of approved service. There is thus
recruitment to Integrated Grade II and III from three independent
sources and a quota is fixed for recruitment from each source. The
quota as hereinabove set out was introduced by amending Rule 13 as
H
per notification dated February 12 197 5. Earlier the quota for.
\lire~t recruits w~s ~5'.Yp of the yac~ncies for a period of 5 years anq
G. s. LAMBA v. UNION (Desai, J.) 443

then 33!% of the vacancies. The quota for the other two sources
was 25% <if the remaining vacancies on the result of limited
competitive examination and the balance to be filled in by promo-
tion according to seniority in the feeder grade. Thus the quota
for direct recruits was raised from 25% to 33!% and reduced to
.-k"· I/6th cf the vacancies i.e. 162.3%. The impugned seniority
lists have been drawn up rotating vacancies for each source B
and if no recruitment is made from that source in a given year, the
place in the list available to the source as per rotation is kept open
and a later recruit at any distance of time from that source will be
assigned that place over persons who are already recruited from
other sources and would be working in substantive vacancies. ·The
net effect of a drawn-up seniority list in this manner is that a promo-
c
tee in a given year even within its quota may go down to a much
later direct recruit as the place in rotation is kept open for him with-
out limitation of time. This is the crux of the matter.
•
A bird's eye-view of the relative position of the petitioners D
who are all departmental promotees in the two impugned seniority
lists would bring into focus the contours of controversy .
•
S.No. of the Name of the Place in the Place in the
petitioners petitioner 1979 senior- !983 senior- E
ity list ity list
-------------------------·------
I 2 3 4
------------------ -------------
I. G.S. Lamba 397 163
2~ S.K. Chibber 380 147
• 3.• Ku! Bhushan 375 144
·4. LS. Ailawadi 398 164
5. K.D. Avdhani 379 146
• 6. Q.L. Khanijow 387 153 G
7. Ranvir Chawla 244
8. N.D. Kharbanda 422 181
9. V.N. Sharma 483 222
JO. M. Jayaramai: 463 208
---·------------- ----.....,..--...,.,,...--.,,,...._,.....~------
H
444 SUPREME COURT REPORTS 11985] 3 S.C.R.

A ? ·· ltwiJI· be presently pointed out that the petitioners whose
:placements are indicated here and who have entered the service
would be junior to those who enter later into service and would be
placed at the vacant places in the list which are for purpose of
clarity enumerated hereunder. It will show that those who are yet
to c·ome would become senior to those in service and have entered
,servic.e number of years ahead to them. And one is not sure at what
Jeogth of time the few entrants will enter service.

The inequity, if it can be so called may be demonstrably pointed
·c at t!iis stage with reference to the seniority list of J979. Placements
in this list at Sr. Nos. 294, 300, 305, 312, 318, 324, 330, 336, 342,
348, 354, 360, 366, 372, 378, 384, 390, 396, 402, 408, 414, 420, 426,
432, 438, 444, 456, 462, 468, 474, 480 and 486 have been kept open
or vacant and are to be filled in at a later date by assigning seniority
to direct recruits who would be recruited to the service for the first •
:D time after June 25, 1979 relevant to which seniority list was drawn
up. These later recruits at some unknown future date would score
a march by nearly a hundred steps over the one at No. 486 already
in.service by regular promotion. Similarly placements at Sr. Nos. •
377; 381. 385, 389, 392, 395, 399, 403, 406, 410, 413, 417, 421, 424,
428. 431, 435, 439, 442, 446, 449, 453, 457, 460, 464, 467, 471, 475,
E
478;482, 485, and 489 have been kept vacant for recruits who would
be recruited to the grade on the result of a ljmited departmental
examination which would be held after June 25, 1979. In other
words, whose who would come into serviee after June 25, 1979 either
from tbe source of direct recruitment or from the source of limited
F competitive examination would fill in the above vacant places in the
seniority list and thereby score a march over others who have not •
only been in service on June 25, 1979 and have been substantively
promoted and have become members of the service and who have
been included in the seniority list for the service.

·G
Turning now to the impugned seniority list of June 30, 1983
which for all practieal purposes supersedes the seniority list of June
25, 1979, placements at Sr. Nos. 170, 175, 179, 184, 189, 193, 197,
203, 209, 215, 221, 227, 233, 239 have been kept vacant and these
places.. would be filled in by direct recruits who would join at some
H future date not specified, after Jµpe ~O, 198~, The c;Jisturbin~
G. s. ·'LAMBA 4AS
... . ..
v. :UNION (Desai, J.)

feature is that ..~hen _direcJ recruitment will be ma_de .at some A
future dat~· -after June 30 1983, the. first vacant place. at
Sr. No. 170.would b'e assigned to the first in the list of d"irect
recruits: and even "though-he would enter the service for the first
time somewere after June 30, 1983, he would be senior to the
d_epartmental promote~ hglding l! s.11bs,tll,ntive post at Sc. No. 171
.Jr· Sh. D. R. Goel from February 2, 1978 and he would also be se_nior B
to a recruit from the source of limited competitive examination
recruited on- November 13, 1979 and placed in the seniority list at
Sr. No. 172, one Shri Gurcharan S. Singh .. It would be advantageous
to recall here that the.eligibility criterion for appearing at a competi·
tive examiriii'tion to be held by Union Public Servfoe Commission for
direct recruitment as per Rule 20 of 1964 Rules would be in acco'r·
c;:
dance with the regulations made from time to .ti_me by the Govern·
ment in consultation with the Union Public Service Commission
wherever such consultation is· necessary. The regulations were
not referred to in the course ·of hearing of these petitions.
.. But if the criterion was to be. a graduate's degree than any-one
appearing at a competitive examination after June, 1983 soon
after graduation may not h·ave passed HSC examination in 1976
or 1978 and yet the departmental promotees of that year would be
junior to such a schoolian. This is the net out-come of seniority
rule being based on rotation of vacancies available to each sour9c
and quota not being filled in from time to time when the vacancies E
occur. The unfortunate outcome is t_he same as was noticed by this
Court in A. Janardhana v. Union of India & Ors.(1) However, while
keeping a~ide this unjust and i~equiutous outcome and uninfluenced
~ by it, we may first look at the relevant rules for determining inter-sc
seniority of persons recruited from three independent sources.
11
The service was constituted in 195~. However the stat~tory
rules came into force on May 5, 1964. The· constitution ofthe
service by it.memorandum of the Govt. of India in 1956 was, in
exercise of the executive powers of the Government of India. The
statiifoiy rules· came into. force from May 6, 1964 and since then the
service is governed b)' the 1964 Rules. Commencing from the advent G
of 1-964 Rules, the recruitment from three sources as actually mad~
may be noticed, Information in this chart is according to averments
iri Para 16 bf the petition :

(I) [19S3) 2 SCR 936:
446 SUPREME COURT REPORTS
1
11985) 3 S.C.R.
A
-----------------------------
Year Departmental Direct Limited Dep~rtmental
Promo tees recruits examination appoin-
tees

n ----~------------------------
1964 7 ~.

1965 6 JO
1966
1907
c 1968 3
f-
'../
1969 8
1970
1971
D
1972 34 25 ..
1973 29 10
1974 5 14
1975 39 II 2 •
1976 26 5 16
E
1977 II 4
1978 47 7 2
1979 36 6 2
1980 27 3 5
1981 24
~•
F 6
1982 24 2
1983 24 2
.---------------------
360 63 91
G
----------------------
With reference to Para 16 and the chart in the petition, in the
return filed on behalf of the first respondent Government of India it
is stated that the chart does not give true and correct picture and
H was denied. It is stated that the exact figures are given in the chart
anneited as Annexure 'A' t<;> t]]e r~t\IP1· It reads as 11nder ;
447
• b. §. i.AMilA v. tlNION (DeJal, i.)
ANNEXURE'A' A

"Para 16 : The figures of recruitment. through the different
channel given by the petitioners ·are incorrect and
misleading.
The correct figures .are as given below :- B
Jr
DPs LDE DRs Remarks
Year
1964 15 11
1965 §

y
--'\ 1966 §
.• c
1967 § 40 9
1968 §
1969 §
1970 D
1971. 33 19
1972 7
1973 35 18 12(18•) •Indent. Can-
did ates joined
in 1975. E
'
1974 - 5 5(6•) *Indent. Joined
in 1976.
1975 35 IS 8 Joined in
1977
1976 30 s 7• *Indent F
-7'
•
1977 s 5* •Indent
1978 55 19 4• *Indent:
•
1979 36 18 14* . *Indent
1980 44 15 4• *Indent G
•. J:
1981 24 12 1• *Indent
1982 24 12 8* *Indent."

-J<.
-----
As far as the figures of direct recruits given fot the years I 97.3
to 1982, the column recites that the figures therein meritioned are of ~
I

t1§ss1 3s.c.k.
A the indent sent h¥ the Union Public Service Commission for making
direct recruitment bJt there· is nothing to show how many joined
as direct recruits. Accepting the information as supplied by the
respondent Union of India, what strikes one at a glance is that the
recruitment from three sources was never according to quota nor
according to available vacancies for each source. Record as discloseJ
8 does not indicate that the vacancies available to a particular source
but not filled in during the relevant period were carried forward.
No attempt was made to undertake direct recruitment in the years
1965, 1966, 1968, 1969, 1970, 1972, 1974 and 1977. Similarly
limited competitive examination was not even held in the years 1964,
1965, 1966, 1968, 1969 and 1970. Indisputably there was large
c scale departure from the quota rule.

It may also be mentioned that in the counter affidavit, no atte-
mpt has been made to give information about the vacancies available
in each year and their splitting up acc0rding to the quota for each
source and to point our whether in any given year there was a short- •
D fall in the recruitment from a particular source and or there was
excess recruitment from some other source.

The first thing to be noticed is that the statutory rules do not
provide for carry forward of vacancies occurring in a given year to
the next recruitment. The feeble and inaudible plea to justify carry
E
forwa,rd of vacancies was non-availability of candidates for filling
in vacancies available to a source.

It is of some importance to note that the petitioners are
!llembers of the service and belong to Integrated Grade II and III
in the General Cadre of IFS 'B'. .They hold substantive posts and
F there is nothing to show that their promotions when made were
either temporary or adhoc or till such time as a regular recruit is
• available from the other source according to ·quota, though their
promotions appear to be in excess of the qu~ta available for the
source. The quota is related to vacancies. Ru)e 13(1) which pro-
vides for quota clearly recites that I/6th of the ·substantive vacancies
in the Integrate4 Grade II and III of the General cadre shall be filled
in by direct recruitment etc. Therefore, it is undeniable that quota
is related to vacancies. If the quota has to be scientifically imple-
mented it would be incumbent upon the first respondent to satisfacto·
rily establish the number of vacancies available every year since the
H constitution of service ; the number of vacancies available according
to quota reserved for each source ; the recruitment done during the
f
i:J. s. LAMBA v. tl1'11ofl (Desai, 1.)
year from that particular source and to state whether a'll the. vacan-. A'·
cies allocable to each source were filled in from the concerned source
and if not so filled in, whether any recruitment in excess of the quota
was made from other sources. It must further be shown whether'
such excess recruits were given temporary, stop-gap or adhoc pro-'
~otion subject to availability of candidates from other sources who·
were entitled to fill in those vacancies and that this was done for· a· B
short period .and till the candidates, regularly recruited from the.
sources to which vacancies were allocated were available to fill in the-'
vacancies held by the r~cruits in excess of the quota from the other
sources. No such information· was forthcoming. The only justifi-·
cation offered for not filling in vacancies by recruits from ·each'
source according to its quota is that the procedure for direct recruit-
ment as also the procedure for holding limited competitive examina-
tion is prolix, time'consuming and dilatory and therefore the
recruitment made at a later date from such source could not work to
the disadvantage of such recruits by pushing them down.below those"'
whose promoted in excess of the quota available to that source. ··
D
If Rule 25(l)(ii) which provides for inter-se seniority of direct·
recruits to a grade and persons substantively appointed to the grade
from the select list for the grade, upon its true construction, permits
•
leaving open placement in the se11iority list· to be filled in at a later
date by recruits coming from the 'ource for wboni placements accor-
ding to rotation are kept open, would such rule or such implemen-
tation of the rule of seniority 'be violative of Art. 16 .?
It is too late in the day to dispute that it would be open to the"
Government,.while constituting a service, to provide for recruitment'
to it from more than one source and also to reserve quota for each
source. As a logical corrolory, it would equally be open to the· F
Government to provide for seniority rule related to rotation of vacan-.,
• .cies. Shortly this is called quota rule of recruitment and ·rota of
rule of seniority inter-linking them. So far there is no controversy.
The contention of the petitioners is that in implementing this· rule·
there has been such large scale deviation that it .results in denial of
• equality to the members of the service similarly circumstanced.It will
be presently demonstrably established that where rota rule of senio'
rity is interlinked with quota of rule of recruitment, and if the latter
is unreasonably departed from and breaks down under its own
weight, it would be unfair and unjust to give effect to the rota rule
of seniority. To some extent this is not res integra. Though some if,
advance bas been made on this proposition in later decision~. · · · · H
h9ssj :l s.c.il. •
A In B.S. Gupta v. Union of India( 1) a Constitution Bench of this
Court after taking note of the fact that 214 posts were upgraded from
Income-tax Officers Grade II to Income Tax Officers Grade I, held
that with the upgrading of a large number of posts and the
appointment to them of promotees, the quota rule collapsed and the
seniority rule having a link with the quota rule would meet the same
I fate. In A.K. Subramana v. Union of India (2) it was observed that
'when recruitment is from two or several sources, it should be obser-
ved that there is no inherent invalidity in introduction of quota
system and to work it out by a rule of rotation. The existence of a
quota and rotational rule by itself will not violate Art. 14 or 16 of
the Constitution. It is the unreasonable implementation of the same, ·
which may, in a given case attract the frown of the equity clause.'

In P.S. Mahal and Others v. Union of India & Ors. (3) the Court
after reiterating the afore-quoted observations in A.K. Subramana
case observed as under :
D
"The r()tational rule of seniority is inextricably linked with
the quota rule and if the quota rule is not strictly imple-
mented and there is large deviation from it 1egularly from
year to year, it would be gros~ly discriminatory and unjust
E to give effect to the rotational rule of seniority.''

In the period between the decisions in B.S. Gupta's case and A.K.
Subramana's case, this Court threadbare examined the legal posi-
tion in relation to quota-rota rule and a large scale deyiation from
it with its consequent effect on the seniority rule. In Janardhana's
F case this Court in terms held that 'As quota rule was directly inter-
related with the seniority rule, and once the quota rule gave way,
the seniority rule became wholly otiose and ineffective. It is equally_ •
well-recognised that where the quota rule is linked with the seniority
rule, if the first breal::s down or is illegally not adhered to giving ·
effect to the second would be unjust, inequitous and imrroper. It may
G
incidentally be mentioned that this view was approved and reiterated •
in P.S. Mahal's case.
------
(I) [1975] Suppl. SCR. 491.
(2) [1973] 2 SCR 979
H
(3) 'AIR 1984 SC 1291
lJ. s. 1.AMBA •. UNION (.besal, Ji
In o:P. Sing/a and Anr. v. Union of India & Ors. (1) Chandra·
chud, C.J. speaking for the majority after taking note of the proviso
to Rule 7 and Rule 8 of the Delhi ~igher Judicial Service Rules, 1979
held that upon its true interpretation, the rroviso prescribed a quota
and Rule 8(2) provided for rotational system of giving ·seniority
according.to the quota. After taking note of the earlier decisions it.
~as held that where recruitment is from two independent sources,
the rule of seniority on a rotational basis could not be held to be
.unconstitutional or violative of Art. 16. The Court then proceeded
to examine the effect of enormous departure in the matter of recruit'
ment according to quota and its shadow over the interlinked seniority.
Says the learned Chief Justice :
, c
"However, ,instances· are not unknown wherein though the
provision of a rule or a Section is not invalid, the manner
in which the provision is implemented in' practice, leads to
the creation of disparities between persons, who, being simi-
. larly, circumstanced are entitled to equal treatment:"

After taking·note of Rule 16 and ·17 of the same rules, it was obser·
ved as tinder :

"Promotees who were appointed under Rule 16 have been
officiating continuously without a .break as Additional
E
District and Sessions Judges for a long number of years. It
is both unrealistic and unjust to treat them as aliens to the
Service merely because the authorities did not wake \IP to
tbe necessity of converting the temporary posts into perma·
nent ones, even after some of the promotees had worked in ·
those posts from five to twelve years." F
It was found as a fact that the provision prescribing.the quota of
direct recruitment and promotees was put in cold storage for. a long
time. After noticing this ugly fact, the majority proceeded to observe
as under :
G
"In these circumstances, it will be wholly unjust to penalise
the promotees for the dilatory and unmindful attitude of
the authorities. It is not fair to tell the promotees that they
will rank junior to the direct recruits who were appointed
five to ten years after they have offciated continuously in
-....,...------
(I) AIR 1984 SC 1595 H
•
SUPRllMB COlJRt RllMRTS i19s5J ~ s.c.ll..
A' the posts created in the service and held by them though
such posts may be temporary. This Court atleast must fail
them not."

The Court after taking note of the fact that large number of persons
were promoted to temporary posts and such temporary promotees
•· officiated on substantive posts held that the proviso to Rule 7 which
prescribes a quote for direct recruits and provide for rotational
system of vacancies between them and the promotees who were
appointed to the service, the rule of seniority according to rotation
of vacancies between promotees and direct recruits according to
quota must inevitably break. down when promotions of promotees
C' are made to the service under Rule 16 and 17. The majority quoted
with approval the following passage from the judgement in
Janardhana's case:

"But, having done that we do propose to examine and
0 expose an extremely undesirable, unjust and inequitable
situation emerging in service jurisprudence from the prece-
dents namely that a person already rendering service as a
promotee has to go down below a person who comes into
service decades after the promotee enters the service and
who may be a schoolian, if not in embryo, when the pro-
E motee on being promoted on account of the exigencies of
service as required by the Government started rendering
service. A time has come to recast service jurisprudence
on more, just and equitable foundation by examining all
precedents on the subject to retrieve this situation."
F )
The learned Chief Justice made a pertinent observation that the
observations in the extracted passage are not without relevance to the
case before him and lent considerable support to the conclusion
which bas been recorded in the judgment. Thus the ratio jn Janar-
dhana' s case has stood the scrutiny of two later decisions of different
benches of this Court. It may incidentally be mentioned that the
minority view also affirmed the approach and the observations in
Janardhana's case.

The sum total of the afore-mentioned three judgments may be
freely re-stated in the telling expression in Janardhana's case which
H
reads as under :
t;, ~. LAMBA v. UNION (Desai, J.) 4S~

"It is therefore time to clearly initiate a proposition that a A
direct recruit who comes into service after the promotee was
already unconditionally and without reservation promoted
and whose promotion is not shown to be invalid or illegal
accordini: to the relevant statutory or non-statutory rules,
should not be permitted by any principle of seniority to
score a march over a promotee because. that itself being
arbitrary would be violative or Arts. 14 and 16."
Now proceedini: on the assumption that Rule 25 (l) (ii) is valid and
therefore seniority inter-se between 'recruits from three different
~sources has to be computed according to the quota by rotating subs-
. 'tantive vacancies in the grade reserved for each source, if in actual
\..# implementation it creates disparities between persons who are'.simi- c
larly circumstanced and thereby deny equal treatment, the rule would
be violative of Art. 16. The outcome is not on account of an invidi-
ous implementation of the rule but non-implementation of a part of
) rule for years. The end product as will be demonstrably established is
unjust and unfair and yet this unjust and unfair action is being sup-
ported by the Union of India which was responsible for utter inaction
in impJementing the rule in its letter and spirit and for unreasonably
• long intervals. As pointed out earlier, direct recruitment ha1 not been
.- made for years. Limited competitive examination has also not been
held for years. Promotions fiom the select list have been presumably in
E
excess of the quota but they were appointed to substantive vacancies
in the service and have been holding the posts as in the case of
petitioners for over 6 to 8 ye us. The promotions were not styled
as temporary, adhoc . or stop-gap. Blanks related to allocated
, vacancies kept open for future direct recruits and candidates quali-
-~-fying at limited competitive examination in the seniority list indicate F
:• that if the next direct recruitment is made, say in 1990 and the limi-
ted competitive ·examination is held in 1988, the recruits from the
aforementioned two sources will have to be placed a(Sr. No. J 7g . in
the case of direct recruits and little} down below. i~ case of a can-
didate qualifying at the limited competitive examination. The
. direct recruit already placed at Sr. NoDn 170 fin:fJ990 would G
score a march over departmental promotees of I 978 and persons
in service after qualifying at the limited competitive2 examination
.;,.. in 1988. The emerging situation would be in pari materia with
what was found by this Court in Janardhana's case and 0.P. Sing la's
case and the reasons therein mentioned will mutatis mutandis apply
for quashing the seniority list for the self same reason. · 'H
~54 119851 3 s.c.!l.

..
;\. ·' Approaching the .matter from a slightly. different.angle, in
our Qpinion, Rule 21(4) and Rule 25(1) (ii) both, can be. harmoniosly
read beca.use they.operate, in .. two. different areas. 'Rule.2,1(4) pro-
vides that , subject· to. other .. provisions of this . rule.. (not aU rules)
persons :promoted, or recruited earlier on the basis of. ear.lier selec-
. tion:or recruitment ·shall ·be senior to. those promoted or recruited
•
on the basis- of subseque~t selection or recruiiment. - I(·the expres-
0

B
,.
sion 'selection' refers:to those promoted via the select list and the
expression: 'recruitment'. 'refers , to those .entering >ervice by direct
r.Cruitment,: in · view .of Rule 21(4)° those who' enier-servi~e by •
'recitiltment'. or ·;election'.·. at any' time - wiil ~!ways 'iiecessa;iiy be
0

senior" to those promoted ' or 'recruited:' o'n ihe basis: of a subseq~ent
sele~tlon .p~ 'recruitmenL _ This _is, -what Rule 21(4) provides;,, In
temiS. it caters to a situation where recruitment or .selection is at
intervals with· a time lag.. Vacancies in.th<;, cadre· or the grade arise
·,e_v~ryl~a.r, .~o~maUy_ th". sub,sta?tive vacancie~ i? .the ca~rehave .,,
.to be filled in as they.occur or within a· reasonable time., :The
..
D
., ..
process of si:lection arid 'reci:uit~ent must coniinuou-sly. be in ope~a
' tion roughly from year to. year. By the.impact. of Rule 21(4): the
'
'selection ' or recruitment of one . year shall have . precedence over
' • • ! ' • •• • • - - - • ·' ' •, • •• '.' •

·selection or recruitment of the next year and this 1s what is known
' . 'ill semce jurisprudence as seniority' according' to. continuous oflicia-
'tioti in the cadre or the grade which has been statutorily: recognised
1 in sub-rule 4 of Rule 21. '. This is 'in tune with' fairplay and justice
, and ensures equality as mandated by Art. 16: ·Now Rule 25(1) (ii)
. provides for integrating direct recruits and persorisentering via
the select list to · a grade. It is implicit in· sub-clause (iiJ of Rule )..
• 25(1) tl;tat it would operate at a time wheri in ·a given year almost
-;- '-< sim_ul!"ncou~ly or: within a -measurable distan7e. from, each 'either •
·l , recruitment. 1s made from all the other sources. ·. 'fo illustrate if in
_,a given year candidates are selected for appointment· to.the grad~
· ;_by .direct recruitment as also by holding the liinitea cciinpetitlve
"examination and giving promotion and if all 'the three enterthe
. service. or' the grade ~ at . or almost at the same time or within the
.'yea~ and - withi'.1, a reasonable time Jag from each oiher, a question
~· G ::;s bound to arise.how to integrate all of them entering service (rem
·.different sources· in the common seiiiority list., Rule :.25(1) (ii) i-
·"caters to. this situation and helps in integrating· appointees from
·: three sources to .be integrated into. common seniority list acci>rding
· to quota, : Now _contrast Rule 25(1) (ii). with .. Rule 21(4) and the
meaning of Rule 25(1) (ii) reveals itself and becomes: clear and
· understandable. A block._ of recruits in a given year coming from
~. G. s. LAMBA v. UNION (Desai, J.) ·.· 455.
three independent sources may. be integrated. inter-se according to.
quota and rota. The blo.ck . in. subsequent year would. be always,
junior to the block· of . recruits in the earlier years.,. This .is how,
Rule 21(4) and 25(1) (ii) can be harmoniously read. and it is unques-.
tionable that they operate in two different situations and both have ·
to.be given effect to': .. •. . .. •· . · . . .. · .. , ... _ •.·.. :
' - , , - C' , • • '

.... Now turning. to the impugned. seniorty. lists, what the Union.'
, • ' ' • • '• • • • - > • ' ~ < ! ,, '
Ii'
•
of.India
~
appears . to.• h~~e done,
. - . - - '
is that
'
it has' :applied
' ' .
the quota
' ' . •', •
and'-t
. . .. . ,.
~

rotated the vacancies. but where candidates from a particular source
were not 'available,' ,the' .vacancies 'were deemed to 'be kept open"
(Scime kind, -of carry, forward)·.·. to l)e filled iti by later recr)litIDent.;
• from the same. source years. after the vacancy occurred, but ,in.the.·
meantime the vacancy was ftlfed inpre~umab}e by exce~S.. reC11Jitm~n<
from the other sources. That is dearly eitner non-implemeiitatioii
of the quota rule or ma!-functioning of the quota rule and yet the
rota" rule •is adliered to. whicli is' botii impermissible under the
Rules as ~ell as.unjust; unfair and inequitcius being violative 'or Aits:• .. '
14'and 16. • .... ~ · · ... .. · · · ··· .... · · ·c "•
- ~ ·: '~= t r· r
It' was however contended on· behalf of the respondents that
the quota prescribed by Rule 13(1) being mandatory in . character,
any appointment' ~in excess of the quota 'in anj' year would 'render
the cxc.Ss appointees as irregularly appointed and they.would not
become members ., 0£: the service .. and. hang outside .the Ser.vice/ and
can be demoted. It was said that on'ce recruits are' available from
the source for ·which cjuota was prescribed, the pr~motees in ~cess
of their-quota can and must be replaced by later entrants. It was
submitted: tnat such" excess promotees' have to be. demoted but to
~ save them1 froin this harsh situation,•the courts have evolved ar rule '-i
that they may be pushed 'down and regularised· in S)lbsequent years. F
• This indulgence, it was said, cannot -be claimed : a• a ·matter of
right and therefore such excess prcimotees cannot claim seniority
over recruits from other sources who may have come at a later
date:·· Reliance· ;as :placed . in two decisions of. this' Court in s.a,
Jai.<fngha'ni v.' Unidn of' India'& OrS. (1) and Bishan Sarup Guptaetc.)
v".' Union of India·& Ors;(') Tbesetwo'decisions are of little help'
ill- view of the later ldecisionHlir~ctly the point and discussed on
hereiriabove. · · · · · ' _. "
. ' .
. ,, n . ' I

' .
'(1)' {19G7J 2 S.C.R. 703. . . ' H
• •. ·' ·-. - . -• -- , r .. -, .. ·- •• - .
·!fl · !197~ 1 S.C.R. 104,
•
456 SUPREME COURT REPORTS !19851 3 s.c.R.
A. The language of Rule 13(1) appears to be mandatory in. charac·
ter. Where recruitment to a service or a cadre is from more than
one source, the controlling authority can prescribe quota for each
source. It is equally correct that where the quota is prescribed, a
rule of seniority by rotating the vacancies can be a valid rule for
seniority. But as pointed out 'earlier if the rule of seniority is
B inextricably intertwined with the quota rule and there is enormous .,.,_.
deviation from the quota rule, it would be unjust, inequiutous and
unfair to give effect to the rota rule. In fact as held in O.P. Sing/a's
case, giving effrct to the rota rule after noticing the enormous
departure from the quota rule would be violative of Art. 14. Therc-"'-
fore assuming that quota rule was mandatory in character as polnte<I '
out earlier, its departure must permit rejection of rota rule as a -..J

.
valid principle of seniority. ·
'
The matter can be viewed from a different perspective. The
question that may be posted is "Was the quota rule mandatory in
D character''? Rule 29(a) confers power on the controlling authority
to relax any of the provisions of the 1964 rules. It reads thus :

"29(a) Where the Controlling authority is of opinion that It •
is necessary of expedient so to do, it may be ordered, for
reasons to be recorded in writing to relax any o( the pro.
visions of these rules with respect to any class or categof¥
of persons or posts,

Provided.that in relation to posts falling within the ·
purview of the commission, no order in respect of a class or -(-
category of persons or posts shall be made except after · -·
consultation with the Commission." '

'The controlling authority is defined in Rule 2F to mean the
Government of India in the Ministry of External Affairs. Therefore
the Government of India in the Ministry of External Affairs enjoys
the power, if it is necessary or expedient so to do, to relax any of
ihe provisions of these rules, with respect to any class or category·
of persons or posts. The proviso carves out an exception that fo ~
relation to posts falling within the purview of the Union Public
H Service Commission no order in respect of a class or a category of
pers9µs or pos\s s~~ll be µiad~ eecept after ~opsµltatio11 with tba
G. S; LAMaA v, UNION (Desai, J.) 457

Commission. We will presently deal with the effect of non-con· A
snltation of the. Commission in a given situation. - However, Rule
29(a) indisputably confers power to relax any of the provisions of
the 1964 Rules which shall also comprehend Rule 13(1) which
prescribes the quota. Undoubtedly, when the power to relax any
of the provisions of the Rules is exercised, the controlling authority
must be of the opinion that it is necessary or expedient so to do ·!J
for reasons to be recorded in writing before exercising the power.
It is well-settled that failure to record reasons will not invalidated
the exercise of power. Once the power to relax a given, mandatory
rule exists and an action in derogation of the rule has been rep~ate·
dly taken year after the year, it would be 'a permissible inference
that the action was taken in relaxation of the rule for which the c
.,.,
power exists and in this case is located in Rule 29(a). To hold'
otherwise would be to come to rather disconcerting conclusion that
a body like the Government of India acted ·deliberately fa contra· ·
vention of the mandatory rule from year to year. It would as far
as possible be proper to avoid such an inference l!nless it is inesca-
pable. In· this case as pointed out earlier for years 1965 to 1972 'D
there was no direct recruitment and even for the later years only
art Indent was placed and not reqruitment done, and· during all·
these years a lar&e number of persons from Grade IV were promoted
as departmental promotees to the Integrated Grade II and III. -A
body like the Government of India presumably knew that ·ther~ 11·
a statutor-y quota for recruitment but Is also presumably knew th11f
it bad power- to relax and for exigency of service repeatedly actCll
In derogation of the quota rule, and therefore it would be pennis.
slble to infer that the action was taken in relaxation of the manda•
tory quota. rule. This view which we are taking is in· accord with
__ ::...__ ., . the decision of the Constitution Bench In I'ichan Singh and Anr. v
,>7 " Union of India & Ors. (1) wherein this Court held that though tho
' direct recruitment was made In consultation with the Union Public
Service Commission though not In accordance with the prescribed
procedure namely on the result ofa competitive examination,-- as
the country was in a state of emergency, the appointment and
selection was made by interview only and that such appointment by
direct 'recruitment was made by relaxation of the relev·ant rules and
the power was located in the Government of India to relax the
rules. No specific order was shown in that case vouchsafing that
the appointments were made in f~l~x~tion · 9f 'he PJI~ but tlj~ ¢0\lft
'?=!------
,458 SUPREME COURT REPORTS [1985! 3 S.C.R.

A inferred from various relevant circumstances then prevailing that
the appoints not in consonance with the prescribed procedure for
direct recruitment must have been made in relaxation of the rules.
When the question again came up in Janardhana's case the Court
held that if' direct recruitment was made in relaxation of the rele-
vant rules, the same reasons will mutatis mutandis apply to hold that
B promotions in excess of quota were given by relaxing the rules. · It
is therefore reasonable to believe in this case that though the quota
was mandafory it was not adhered to by exercising the power ()f
relaxation both qua persons and posts.

It was however contended that it is not permissible to infer
c that promotions in excess of quota were given by relaxing the quota
rule.beca~se the posts in Integrated Grade II and III were within the
·purview of the Union Public Service Commission and the proviso ·to
Rule 29(a) mandates that power to relax is hedged in with a condi·
tion that it can be done after consultation with the Commission, and
D there is nothing to show that the Commission was ever consulted.
" Undoubtedly, the proviso to Rule 29\a) requires that the controlling
authority cannot relax any of the provisions of the rules in respect
of posts which are within the purview of·the Union Public Service
Commission unless after consultation with the Commission. It was
s~bmitted thai nothing is placed on the record by the petitioners to
E show that power to relax the quota tule was exercised after consul-
tation wi.th the Union Public. Service Commission. Assuming that
there was no consultation, would the exercise of power to relax be
v.itiated and .the appointments made,in rclaxatjon of the mandatory
quota rule would be ab initio invalid. Commencing from the deci·
sion of the Privy· Council in Montreal Street Railway Company v.
II Normandi,(1) it is well settled that 'when the provisions of a statute
relate to the performance of a public duty and the case is' such that
to hold null and void acts done in neglect of this duty would work
general inconvenience or injustice to persons who have not control
'
over those entrusted with the duty and that at the same time would
not promote the main object of the Legistature, in has been the prac-
G
tice to hold such provisions to be directory only, the neglect of them,
though punishable, not affecting the validity of the acts done.' The
view was expressed in the context of the failure to revise list of
Jurors by the Sheriff according to the revised statutes of Quebec and
conviction was challenged on the ground of mistrial held by selectin~
H ---------
\I) AIR !977 f,C, 14~
! G. s. LAMBA v.. UHION (Desai, J.) 459
.)urors.from unrevised lists. rThe challenge failed. Coming home .in
State of,U.P. v. Mqrbodan l.a./.Srivqstava(l) a Constitution Bench of
this Court spe~ifically held that where consultation with the.Public
Service Commission is provided as required by Art. 320(3)(c) of the
• Constitution such provision is not mandatory and they do not confer
any rights on public servants so that the ·abse.nce of consultation ·9r
'irregularly. in.consultation doe8 ·not afford him a cause of actioll'in r.B
a. court of law. There are number of· subsequent decisions to which
our attention .was called. reiterating the same principle. Therefore
. assuming. there was failure to consult the Union Public Service Com-
mission .before exercising .the power to relax the .mandatory quota
rule and fu_t:ther assuining that the. posts in Integrated Grade Hand
III were within the purview of the Union Public :Service Commis-
c
sion and accepting for Jhe time being that the Commission was not
consulted before the power to relax the rule was exercised yet·the
action taken would not be vitiated nor would it furnish any help to
Union of India which itself cannot take any avantage of its failure
to consult the Commission. Therefore it can be safely stated that D
the enormous departure from the quota rule year to year permits an
inference that the departure was in exercise of the power of telaxing
the quota rule co.nferred on the controlling authority. Once there
is power to relax the mandatory quota rule, the appointments made
• in excess of the quota fr-0m any given source would not be illegal or
invalid but would be valid and legal as held by this Court in N.K. E
Chandan and Ors. v. State of Gujarat('). Therefore the promotion of
the promotees was regular and legal both on account of the fact it
was made to meet the exigencies of service in relaxation of the
mandatory quota rule and to substantive vacancies in service.

Once the promotees were promoted regularly to substantive F
vacancies even if temporary unless there was a chance of their demo-
• tion to the lower cadre, their continuous officiation confers on them
an advantage of being senior to the later recruits under Rule 21(4).
If as stated earlier by the enormous departure or by the power to
relax, the quota rule was not adhered to, the rota rule for inter-se
seniority as prescribed in Sec. 25(1)(ii) cannot be given effect. In the G
absence of any other valid principle of seniority it is well established
that the continuous officiation in the cadre, grade of service will
----~-------

(I) [19581 S.C.R. 533.
(2) [i977] I S,C.R, 1037, H
460 SUPREME COURT REPORTS 11985] 3 S.C.R.

iA provide a valid principle of seniority. The seniority lists having not
been prepared on this principle are liable to be quashed and set
aside.

Accordingly ·these writ petitions succeed and the rule is made
absolute. The impugned seniority lists challenged by the petitioners
B have been drawn up in violation of the provisions of Arts. 14 and 16
of the Constitution and therefore they are quashed. The first
respondent is directed to draw up fresh seniority list in the light of
the observations made in this judgment within a period of three
months from today. All promotions granted since the filing of the
petitions are subject to the decision herein given and t)ley must be
t readjusted to be brought in consonance with this judgment. It the
circumstances of the case, there will be no order as to costs.

N.V.K. Petition allowed.

1