1990 (5) TMI 223 - SC - Indian Laws

Seniority from date of valid appointment; ad hoc service usually excluded, uninterrupted officiating counts until regularisation; quotas adaptable

SC held that seniority is counted from date of valid appointment, not confirmation; ad hoc appointments not made per rules generally cannot be counted for ... Seniority in service between the direct recruits and the promotees - use of word 'promotions' in r. 8(i) of the 1960 - Application of the principle of seniority - Whether the direct recruits and promotees were in the same cadre or held posts in two separate and distinct cadres? Held that:- Admittedly in the present cases direct recruits were not available in adequate number for appointment, and appropriate candidates in the subordinate rank capable of efficiently discharging the duties of Deputy Engineers were waiting in their queue. The development work of the State peremptorily required experienced and efficient hands. In the situation the State Government took a decision to fill up the vacancies by promotion in excess of the quota, but only after subjecting the officers to the test prescribed by the rules. All the eligible candidates were considered and the opinion of the Public Service Commission was obtained. The appointments were not limited to a particular period and as a matter of fact continued till 1970 when the fresh rules were introduced. The stand of the appellants is that whenever appointments are made in violation of a quota rule the appointees will have to go down below the new entrants, joining the Service in accordance with their quota. To sum up, we hold that: (A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. (B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted. (C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly. (D) If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down. 938 (E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date. (F) Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule. (G) The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the subject. (H) If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the executive instruction has ceased to remain operative. (I) The posts held by the permanent Deputy Engineers as well as the officiating Deputy Engineers under the State of Maharashtra belonged to the single cadre of Deputy Engineers. (J) The decision dealing with important questions concerning a particular service given after careful consideration should be respected rather than scrutinised for finding out any possible error. It is not in the interest of Service to unsettle a settled position. Issues Involved:1. Inclusion of officiating posts in the cadre of Deputy Engineers.2. Validity and implementation of the quota rule.3. Application of the principle of seniority based on continuous officiation.4. Validity of Rules 4 and 9 of the 1982 Rules.5. Applicability of the principles of res judicata to writ petitions.Issue-Wise Detailed Analysis:1. Inclusion of Officiating Posts in the Cadre of Deputy Engineers:The court held that it is incorrect to say that the 1970 Rules indicate that the officiating posts were not included in the cadre of Deputy Engineers. The use of the word 'promotions' in Rule 8(i) of the 1960 Rules was not appropriate, but this did not mean that officiating Deputy Engineers formed a class inferior to permanent Engineers. The expression 'promotions' was used in the sense of confirmation. The language in several other rules was inconsistent with a two-cadre theory. For instance, Rule 12(a) of the 1970 Rules included some officiating Deputy Engineers within the cadre of Deputy Engineers, although it left out those who started officiating later than 30.4.1960. Rule 33 of the 1970 Rules directed the preparation of two lists in each cadre, indicating that lists were different from cadres. Thus, the court concluded that the relevant provisions unmistakably led to the conclusion that officiating posts were included in the cadre.2. Validity and Implementation of the Quota Rule:The quota rule was introduced by the 1960 Rules through executive instructions, fixing a ratio of 3:1 for appointments, not for the strength in the service. The rule used the expression 'as far as practicable,' which allowed flexibility. The court emphasized that the quota rule must be realistic and flexible. When recruitment is from more than one source, there is no inherent invalidity in introducing a quota system, but unreasonable implementation may attract the equality clause. The court found that direct recruits were not available in adequate numbers, and the State Government filled vacancies by promotion in excess of the quota after following the prescribed procedure, including obtaining the opinion of the Public Service Commission. The court held that if appointments from one source are made in excess of the quota but in a regular manner, there is no reason to push down the appointees below recruits from the other source who are inducted later.3. Application of the Principle of Seniority Based on Continuous Officiation:The court held that the principle of seniority based on continuous officiation applies to all promoted Deputy Engineers, including those who were earlier Sub-Divisional Engineers and Sub-Divisional Officers, as well as all directly recruited Deputy Engineers. The court rejected the division of officers into further subcategories, as it would result in illegal discrimination. The court confirmed the principle that the period of continuous officiation following an appointment made in accordance with the rules prescribed for regular substantive appointments in the service must be counted for determining seniority.4. Validity of Rules 4 and 9 of the 1982 Rules:The court upheld the Bombay High Court's decision to strike down Rules 4 and 9 of the 1982 Rules, which fixed a rigid quota with retrospective effect. The court found that these rules were arbitrary and discriminatory. The 1984 Rules, which formally deleted Rules 4 and 9, were upheld as legal and valid. The court emphasized that the seniority must be reckoned on the basis of continuous officiation and that the 1982 Rules, except for the arbitrary provisions, merely recognized and gave effect to this position.5. Applicability of the Principles of Res Judicata to Writ Petitions:The court held that the principles of res judicata are applicable to writ petitions. A dispute raised by a petition under Article 32 of the Constitution must be held to be barred by principles of res judicata, including the rule of constructive res judicata, if the same has been earlier decided by a competent court by a judgment which became final. The court dismissed Writ Petition No. 1327 of 1982 on the ground of res judicata, as the petitioner was represented in an earlier writ petition dismissed by the Bombay High Court, and the special leave petition from that judgment was also dismissed by the Supreme Court.Conclusion:The court dismissed all civil appeals, writ petitions, and special leave petitions, upholding the principle of seniority based on continuous officiation and the inclusion of officiating posts in the cadre of Deputy Engineers. The court validated the 1982 Rules, except for the arbitrary provisions of Rules 4 and 9, and confirmed the applicability of the principles of res judicata to writ petitions.