Holding

The seniority of promotees and direct recruits must be determined according to the rota‑quota system prescribed in the 1957 Government instructions, supplemented by the 1965 Service Rules, rendering the seniority list of 19‑January‑1994 void.

Summary

The respondents, who were promotee Extra Assistant Directors in the Central Water Commission Engineering Class‑I Service, challenged the seniority list prepared by the Union of India which placed them below direct recruits appointed later. The dispute centered on the interpretation of the 1965 Service Rules (Rules 5, 6 and 8) and the 1957 Government instructions on quota‑rota, which were silent on the exact fitment of seniority between promotees and direct recruits. The Court held that, in the absence of specific provisions, the 1957 instructions supplement the Service Rules and must govern the inter‑se seniority, meaning the seniority list dated 19‑January‑1994 was invalid. Consequently, the seniority list was quashed and the administration was directed to redraw it in accordance with the rota‑quota system. The appeals were allowed without costs.

Issues considered

What principle governs the determination of inter‑se seniority between promotees and direct recruits under the Central Water Commission Engineering Class‑I Service Rules?
Whether the seniority list dated 19‑January‑1994, which placed promotees below later‑appointed direct recruits, is valid.
Whether the 1957 Government instructions on quota‑rota supplement the 1965 Service Rules for seniority determination.

Subjects

service lawsenioritypromoteedirect recruitrota‑quota systeminter‑se seniorityCentral Water Commissionadministrative law

Judgment

UNION OF INDIA AND ORS. ETC. A
v.
S.D. GUPTA AND ORS.

FEBRUARY 12, 1996

[K. RAMAMSWAMY AND G.B. PATTANAIK, JJ.] B

Service Law :

Central Water Commission Engineering Class-I Service Rules, 1965 :

Rules 5,6,8-Inter se seniority between promotees and direct recruits- C
Since Rules are silent, sub-rule (2) of Rule 8 clearly mentions that the
dete1mination of seni01ity in accordance with the rules of the Govemment of
India, Ministry of Home '1ffairs, personnel & Administrative Refonns Depmt-
ment would be applicable 1957 instructions prescribed quota and rota proce-
dur~These would supplement the Rules-Though direct recruits were D
recruited later, their fitment in the order of seniority would be detennined with
reference to the rota and quota prescribed in the instructions and the statutory
rules-Though some of the direct recruits were not even born in the service
when th_e promotees were promoted these are inevitable consequences so long
as the system continues-Question of equity does not aris~Though direct
recruits appointed temporarily, on completion of probation they become E
substantive appointees-This is the settled principle of law.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3767 of
1996 Etc.

From the Judgment and Order dated 20.4.95 of the Central Ad- F
ministrative Tribunal, New Delhi in O.A. No. 1050 of 1994.

V.V. Vaze, Ms. Binu Tamta and Ms. Sushma Suri for the Appellants
in C.A. No. 3767/96.

C. Sitaramaniaha, P. Narasimahan for Appellant in C.A. No. 3768/96. G
M.N. Krishnamani, S. Menon for the Respondents.

- U.P. Misra Intervenor in Person.

The following Order of the Court was delivered : H
471
_1
I

472 SUPREME COURT REPORTS ·"
[1996) 2 S.C.R.

A Delay condoned. Impleadment is allowed.

Leave granted.
-
We have heard the counsel on both sides. The admitted facts are that
the respondents are promotee-Extra Assistant Directors (Class III) in
B Central Water Commission Engineering Class-I Service. Rules were made
w.e.f. October 15, 1965. The Tribunal in the earlier litigation had found
that V.P. Misra, Extra Asstt. Director was promoted on ad hoc basis on
March 31, 1978 and he was required to be confirmed w.e.f. the date on
-
which vacancy was available to him in the quota of promotees. It is not in
C dispute the vacancy had arisen in the quota of promotees on May 3, 1979
and he was fitted into that vacancy. While doing so, the appellants had
applied the principle of rota and quota and determined inter-se-seniority
of the promotees and the direct recruits. Consequently, the promotees
were pushed down in the order of their seniority. That led to the second
round of litigation. In the impugned order dated April 20, 1995 made in
D O.A. No. 1050/94, the CAT at Delhi had directed the appelJants to deter-
mine the seniority in the light of the directions issued by this Court in Civil
Appeal arising out of SLP (C) No. 14389/88 on April 23, 1991 and the
relevant rules applicable to the candidates. Since it created confusion in
the implementation of the order, the appelJants have come before us by
E special leave. The Tribunal in paragraph 5 has stated thus :
"We find substance in the submission of the learned counsel for
the applicants that the intention of the judgment of the Supreme
Court was to ignore the ad hoc period prior to the occurrence of
vacancy. The continuous officiation period was, therefore, to count
F only from the date of vacancy in the p.romotees quota arose. This
principle has not been observed while preparing the impugned
seniority list, which, therefore, has to be quashed."

In ultimate paragraph 7, this was held thus :
G "In view of the above, the Original Application is allowed and· the
impugned seniority list dated 19.1.1994 is hereby quashed. The
administration shall redraw the seniority list taking into account
the observations made."

H The question, therefore, is what will be the principle applicable to
U.0.1. v. S.D. GUPTA 473

the respondent and the direct recruits, in appeal arising out of SLP (C) A
No. 2293/96. It is not in dispute that as on May 3, 1979 the Rules applicable
to the candidates were as under :

"5. PROMOTEES

(i) The relative seniority of persons promoted to the various B
grades shall be determined in the order of their selection for such
promotion:

Provided that where persons promoted initially on temporary
basis are confirmed subsequently in an order different from
the order of merit indicated at the time of their promotion c
seniority shall follow the order of confirmation and not the
original order of the merit.

(ii) where promotions to a grade are made from more than one
grade, the eligible persons shall be arranged in a separate lists in D
the order of their relative seniority in their respective grades.
Thereafter, the Departmental Promotion Committee shall select
persons for promotion from each list upto the prescribed quota
and arrange all the candidates selecteu from different lists in a
consolidated order of merit which Win determine the seniority of
the persons on promotion to the higher grade. E
Note: If Separate quotas for promotion have not already been
prescribed in the relevant recruitment rules, the Mini-
stries/Departments may do so now, in consultation with
the Commission wherever necessary.
F
6. RELATIVE SENIORITY OF DIRECT RECRUITS AND
PROMO TEES

The relative seniority of direct recruits and of promotees shall
be determined according to the rotation of vacancies between G
direct recruits and promotees which shall be based on the quota-

- tion vacancies reserved for direct recruitment and promotion
respectively in the Recruitment Rules."

A reading thereof would clearly indicate that the seniority of the persons
promoted to the various grades shall be determined in the order of the H
~
I

474 SUPREME COURT REPORTS [1996] 2 S.C.R.

A selection .for such promotion and the relative seniority of the direct recruits
and the promotees shall be determined according to the rotation of vacan-
cies between direct recruits and promotees which shall be based on the
quota of various vacancies reserved for direct recruits and promotees
respectively in the recruitment rules. The rules were made in 1959 which
would indicate the fixation of the quota rota as available. They read thus :
B
"These Rules provided for filling up of 60% of posts in the grade
of Assistant Directors by direct recruitment, 25% of posts by
promotion and 15% of posts by deputation. The seniority of
Assistant Directors was being fixed as rota-quota system as per
c provisions of erstwhile Department of Personnel & Administrative
Reforms O.M. No. 19/11/55 - RPS dated 22.12.1959. While fixing
the seniority of Assistant Directors, the deputationsists were not
coming to the picture and the vacancies were rotated between the
direct recruits and the promotees in the following manner :

D Point 1 Promotee

Point 2, 3, 4 Direct Recruits

Point 5 Promo tee

E Point 6 & 7 Direct Recruits

Point 8 Promotee

Point 9, 10, 11 Direct Recruits

F Point 12 Promotee

Point 13 & 14 Direct Recruits
\
Point 15 Promotee

Point 16, 17 Direct Recruits and so on"
G
It is contended by Shri Krishnamani, learned counsel for the respon- •
dent-promotees that 1982 statutory rules have been made regulating the
~ervice conditions of the candidates holding the post under the service at
the initial constitution of the service and the existing candidates become
H members of the service. Rule 8 thereof prescribes the inter se seniority of
U.0.1. v. S.D. GUPTA 475

the candidates. Those who are substantively appointed to the posts would A
be juniors to those continuing at the initial constitution of the Service. So
direct recruits are not seniors to the promotees. Consequentially, the direct
recruits must be considered to be juniors to the promotees since the direct
recruits were admittedly recruited from 1982 onwards after the statutory
rules came into force. It is contended by Shri Sitaramiah, learned senior
B
counsel for direct recruits and for Union of India that the contention is not
correct. So long as the rota and quota is available, the interpretation should
be such that both rota and quota should be allowed to operate in their
respective field; if so operated, the direct recruits, though recruited later,
are entitled to be fitted into the vacancy to which they were recruited.
Consequentially, they may become seniors in the seniority list though they C
were appointed later to the promotees who are to be fitted in the very
respective quota as and when vacancy arises within the quota. Thus con-
strued, it must be held that the direct.recruits would gain seniority over the
promotees.
D
In view of the respective contentions the question arises whether the
fitment of seniority determined by the appellant-Union is in accordance
with the rules? It is seen that the fitment of rota and quota is not specifi-
cally provided in 1982 statutory Rules. But it prescribes admittedly 60% of
the substantive vacancies for the directed recruits and 40% for the
promotees. Among the 40% .quota, ,they further made a demarcation in E
the ratio of 25:15 between the Extra Assistant Directors and the appointees
by transfer. We are not concerned with each class in this case. Admittedly,
the promotees are entitled to their fitment within 25% of the quota
prescribed for them under the rules. Since rules are silent, sub-rule (2) of
Rule 8 clearly mentions that the determination of seniority in accordance F
with the rules of the Government of India, Ministry of Home Affairs,
Personnel and Administrative Reforms Department will be applicable to
the members of the service. It is seen that under 1957 instructions, the
quota and rota procedure has been prescribed as extracted hereinbefore.
It other words, since the statutory rules are silent as regards the fitment of
the rota and quota and determination Qf the inter-se-seniority, the ad- G
ministrative instructions issued by the Government, would supplement the
rules and accordingly they must be worked out.

It is seen that admittedly the vacancies for the promotees had arisen
on May 3, 1979 and thereafter V.P. Misra is entitled to the vacancy that H
476 SUPREME COURT REPORTS [1996] 2 S.C.R.

A arose on that date. Therefore, when the inter-se-seniority is determined
between the promotees to the substantive vacancies that have arisen on
May 3, 1979 and thereafter, though the direct recruits were recruited later,
their fitment in the order of seniority should be determined with reference
to rota and quota prescribed under the aforesaid administrative instruc-
tions and the statutory rules. It would appear that the Government of India
B
had worked out the rota and quota in tune with the above rules.

It is then contended that the direct recruits were not born in the
service when the promotees were promoted and equity requires that they /
cannot be pushed down. The object of direct recruitment is to blend talent
C and experience to argument efficiency when direct recruits, though came
from green pastures imbued with dedication and honesty. So long as system
continues, consequences are inevitable. The question of equity does not
-
arise. Shri Krishnamani then contended that direct recruits are shown
temporary and so they cannot be similar to promotee substantive appoin-
tees. The quota of 60% of direct recruits is to substantive va·cancies, though
·n their initial appointment is temporary; on completion of period of proba-
tion they become substantive appointees. That is the settled principle of
law in this behalf. The Tribunal, therefore, is not right in giving direction
to consider their fitment vis-a-vis the order passed by this Court in their
quota above the direct recruits.
E
The appeals are accordingly allowed but, m the circumstances,
without costs.

G.N.· Appeals allowed.