Holding

The quota rule had not broken down; the promotees were appointed fortuitously in violation of the rule, and seniority cannot be counted from their promotion dates.

Summary

The Supreme Court examined a seniority dispute in the Maharashtra Forest Service between directly recruited Assistant Conservators of Forests and those promoted (promotees). The State Administrative Tribunal had directed that inter‑seniority be determined according to the service rule’s 1:1 quota between direct recruits and promotees, rejecting the State’s reasons for not making direct recruitments. On appeal, the State and some promotees argued that the quota rule had broken down, that the promotees’ ad‑hoc service should count for seniority, and that the quota ratio was merely an executive instruction that could be varied. The Court held that the quota rule had not broken down; the appointments of the promotees were therefore violative of the rule and were fortuitous, so seniority could not be counted from the dates of those promotions. It further ruled that executive instructions, even if not statutory, cannot be deviated from when they embody a ratio laid down by the State. Consequently, the appeals were dismissed.

Issues considered

The quota rule between direct recruits and promotees had broken down.
Whether promotions of the promotees were fortuitous and thus seniority could be counted from the promotion date.
Whether ad‑hoc service rendered by promotees should be considered for seniority.
Whether executive instructions lacking statutory force can be deviated from by the State.

Legislation cited

Constitution of Indias. Article 136

Subjects

seniorityquota rulepromoteedirect recruitmentservice lawfortuitous promotionexecutive instructioninter‑seniorityadministrative tribunalArticle 136

Judgment

A STATE OF MAHARASHTRA AND ANR. AW. DHOPE AND ORS; ....,._
v.
SHRI SANJAY THAKRE AND ORS.

MARCH 7, 1995
B (K. RAMASWAMY AND B.L. HANSARIA, JJ.]

Service Law

Seniorily-74ssistant Conservator of Forests-:lJirect recruits-
C Promotees-Quota rule-Direct recruitment not made as per rule-Reasons
given by State-Rejection by Tribunal-Interference by Supreme Court not
___,called for-Held quota rule ·was not broken down-Appointment of
Promotees held inviolation of rule i.e. fortuitious-Seniority cannot be
counted from the date of f ortuitious promotions-Executive instruc-
D lions-Deviations by State-Deprecation of.

In a seniority dispute between the direct recruits and promotees
belonging to the cadre of Assistant Conservator of Forests in Maharashtra
Forest Service, the appellant-State and some of the promotees contended
,. before the State Administrative Tribunal that the quota rule laid down by
E the service rules had broken down as direct recruitment was not made for
a long period because of non•availability of. pre-recruitme~t tl-aining
facility and the requirement of the Indian Forests Service (Recruitment)
Rules, 1966 to make initial recruitment from the State Forest Service.
Rejecting these reasons given by State and observing that even the State
p was silent as to whether promotions were fortuitious, the Tribunal allowed
the applications of direct recruits and directed the appellants to determine
inter-se seniority by following the quota rules.

In appeal to this Court by State as well as some of the promotees it
was contended on behalf of the appellants that (i) the Tribunal erred in
G rejecting the reasons given by the State for not making direct recruitment
as per rules; (ii) the ad hoc service rendered by promotees should be
reckoned for computing seniority; (iii) the promotees were not appointed
fortuitiously; and (iv) as the concerned provisions laying down ratio
between direct recruits and promotees were executive instructions having
H no stat1itory force, the State could deviate from the ratio laid down.
542
STATE OF MAHARASHTRA v. S.1HAKRE [HANSARIA,J.) 543

Dismissing the appeals, this Court A
HELD : 1. The examination of the matter under Article 136 of the
Constitution would not permit this Court to describe the view taken by the
Tribunal so unreasonable as to merit iµterference with the same. The
present was not a case about which it could be said that the quota rule had
broken down. Therefore, the appointment of promotees has to be regarded B
as in violation of rules. The material placed on record of the Tribunal 4oes
not permit to accept the contention on behalf of the promotees that their
promotions were not fortuitious. [544-H, 545-A, 546-F]

Keshav Chandra Joshi v. Union of India, [1992) Suppl. 1 272; A.N. C
..l
\ Shehgal v. R.R. Sheoram, (1992) Suppl. 1 SCC 304; A. Janardhana v. Union
of India, [1983) 3 SCC 601 and Narender Chadha v. Union of India, [1986)
2 sec 157, referred to.

State of West Bengal v.Aghore Nath Dey and Ors., [1993) 3 SCC 371
and The Direct ReCTuit Class-II Engg. Officers Association v. State of D
Maharashtra, AIR (1990) SC 1607, held inapplicable.

2. The State having laid down the ratio, even though the same be by
' way of executive instructions, it does not really lie in the mouth of the State
to contend that the instructions having no statutory force could be deviated.
(546-AJ E
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 3364 and
3365 of 1995.

From the Judgment and Order dated 28.10.94 of the Maharashtra
/ Administrative Tribunal, Nagpur in T. A. No. 1275/92 (WP No. 743/90). F
M.C. Bhandare, S.K. Dholakia and V.N. Ganpate, S.M. Yadav, S.
Bhasme, H. Wahi and Uday Umesh Dalit for the appearing parties.

The Judgment of the Court was delivered by :
G
HANSARIA, J. The incessant dispute of inter-se seniority between
direct recruits and promotees needs solution in these appeals relating to
the incumbents belonging to the cadre of Assistant Conservator of Forests
in the Maharashtra Forests Service, Class- II.

2. Two of the direct recruits approached the Maharashtra Ad- H
544 SUPREME COURT REPORTS [1995) 2 S.C.R.

A ministrative Tribunal, Nagpur Bench, making a grievance about their
seniority qua some promotees. The Tribunal after examining the matter in
great detail allowed the petition by quashing two of the State Government's
decisions and directing the respondents before it to determine inter-se
seniority by following the quota rule. Feeling aggrieved, the State as well
B as some of the promotees have preferred these appeals.

3. There is no dispute before us that the service rule did lay down
quota of 1:1 between the promotees and direct recruits. It is also not in
dispute that appointment at the relevant time had not been made as per
the quota. The real bone of contention between the parties is whether on
C the facts it could be said that quota rule had broken down, which stand of
the appellants did not favour with the Tribunal. Secondly, could it be said
that promotions in the present case were not fortuitious, because of which ,
in view of what was held by a Constitution Bench of this Court in The Direct
Recruit Class-II Engineering Officers' Association's case, AIR (1990) RC
D 1607, the seniority has to be reckoned from the date of promotion.

4. Insofar as the first aspect of the case is concerned, we find that
the State had advanced two reasons for not making direct appointments to
the posts in question for a long period of 10 years. The Tribunal has dealt
with the same in para 22 of the impugned judgment. As to the first reason,
E which was non-availability of pre-recruitment training facility for the As-
sistant Conservator of Forests, the Tribunal has observed that this reason
is perfunctory, because the State did not bring on record as to how many
seats for the training were required and how many were not allotted. The
second reason given was the publication of Indian Forests Service (Recruit-
F ment) Rules, 1966, in 1970, as per which Rules the initial recruitment to
the Indian Forests Service was required to be made from the State Forest
Service. The Tribunal has observed that even if that was so, that was in the
year 1970 and it is not understandable as to why direct recruitments were
not made in the succeeding years till 1981.

G 5. Shri Dholakia, appearing for the some of the promotees, has
strenuously urged that the Tribunal was not correct in not giving due weight
to the re_asons_advanced by the State in not having -made direct recruitment
in time as required by the Rules. Having noted. the reasons given by the
Tribunal for non-acceptance of the stand taken by the State, we do not
H think if the examination of the matter by us under Article 13{) of the
j
f
STATE OF MAHARASHTRA v. S.1HAKRE [HANSARIA,J.] 545

Constitution would permit us to describe the view taken by the Tribunal A
so unreasonable as to merit interference with the same. We, therefore, hold
that the present was not a case about which is could be said that the quota
rule had broken down. In this connection it would be apposite to refer to
Keshav Chandra Joshi v. Union of India, [1992) Supp. 1 SCC 272 and A.N.
Shehgal v. R.R. Sheoram, [1992] Supp. 1 SCC 304 which are, judgments by
three-judge and two-judge Benches respectively. Both these cases dealt
B
with the promotions given to the concerned persons in excess of the quota,
because of which it was stated that their promotions were not according to
rules. The promotions were, therefore, held to be fortuitous; it was also
observed that the seniority could not be counted from the dates of for-
tuitous promotions. These cases voiced the feeling of the Court that the c
State having made the rules, should implement the same in letter and spirit;
any justification for dereliction in implementation should not be coun-
tenanced; it should really be snubbed.

6. Insofar as in the second aspect of the case is concerned, Shri D
Bhandare, appearing for the State, is at pains to urge that in view of what
was held by a three-judge Bench of this Court in State of West Bengal v.
Aghore Nath Dey & Ors., [1993] 3 SCC 371, the present was pre-eminently
a fit case where the service rendered by the promotees, even though
ad-hoc, was required to be counted for the purpose of seniority. We have
two observations to make regarding this submission. The first is that Aghore E
Nath's was not a case of claim by the promotees for seniority over direct
recruits; as was in the cases 0f Janardhana and Narender Chadha, ratio of
which cases was not applied inAghore Nath's case for the reason that the
cases did not deal with inter-se seniority between direct recruits and
promotees. So the ratio ofAghore Nath's case cannot apply to the facts of F
the present case as here we are concerned with inter-se seniority. This
apart, a perusal of Aghore Nath's decision shows that benefit of ad-hoc
service would not be admissible if appointment be in violation of rules. No
the quota rule had not broken down as held by the Tribunal which view
we have affirmed, the appointment of promotees has to be regarded as in
violation of rules. G

7. The contention of Shri Bhandare that the concerned provisions are
executive instructions, having no statutory force, because of which the S~ate
could deviate from the ratio, lacks force and deserves to be rejected. Apart
from the fact that it was not factually pleaded and contested before the H
546 SUPREME COURT REPORTS (1995) 2 S.C.R.

A Tribunal, the State having laid down the ratio even though the same be by
way of executive instructions, it does not really lie in the mouth of the State
to contend that the instructions having no statutory force could be deviated.

8. For the aforesaid reason, what was stated by the Constitution
Bench in The Direct Recrnit Class-I/ Engineering Officers Association's case
B (supra) would not also apply, because to get benefit of what was stated in
sub-para (B) of para 44, which is strongly pressed into service by Shri
Dholakia, the appointment has to be as per the rules, which was not so in
the present case so far as the promotees are concerned. ,

c 9. It was also faintly submitted on behalf of the appellants that the
promotees in the present cases had not been appointed fortuitously. This
submission has to be made to be rejected, because of what has been stated
by the Tribunal in paragraph 17 of the judgment which is to the following
effect:

D ... .... ... .... ..... we are constrained to mention that neither the
petitioners nor any of these respondents have produced the
relevant promotion orders on the basis of which it could have been ·
possible to discern whether they were promoted fortuitously to the
said posts of not. Thus, we are left in dark."
E
The Tribunal has further mentioned in paragraph 18 that even the
State Government was silent as to whether the promotions were fortuitous.
So, the material placed on record of the Tribunal would not permit us to
__ accept the contention on behalf of the promotees that their promotions
F were not fortuitous.
10. The result is that there is no force in these appeals which stand
dismissed. On the facts and circumstances of the case, we, however, make
no order as to costs.

T.N.A. Appeals dismissed.