Jawahar Lal Chakravarti And Ors. vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 446 Del

JUDGMENT

S.B. Sinha, C.J.

1. This writ petition is directed against an order and judgment dated 17.05.2000 passed by the Central Administrative Tribunal, Principal Bench (hereinafter referred to as 'the Tribunal') in O.A. No. 1067 of 1999 whereby and whereunder an original application filed by the petitioner herein claiming seniority over the private respondents herein was dismissed.

2. The petitioner were employees of Indian Trade Service. The terms and conditions of the petitioners are governed by rules made by the President in this behalf in exercise of his powers conferred upon him by the proviso appended to Article 309 of the Constitution of India (in short, 'the Constitution') known as Indian Trade Service (Group 'A') Rules (hereinafter referred to as 'the Rules').

3. The petitioners were promoted as Export Promotion Officers in the years 1983-84 in the Ministry of Commerce. The Export Promotion Officers Cadre in the said Ministry was merged with Central Trade Service (now known as Indian Trade Service) in the year 1988. In the aforementioned merged Cadre, the next promotion was of Group II and in terms of the said Rules as regards promotion to Group II, it was laid down:-

"(D) Grade II:

(i) 66-2/3% will be filled by promotion on the basis of non-selection of Grade III officers of the Indian Trade Service with 4 years' regular service in the grade;

(ii) 33-1/3% will be filled by promotion on the basis of selection controller/enforcement officer and export promotion officer of the erstwhile export promotion cadre with 8 years regular service in the respective grade.

Note: The eligibility list for promotion of officer mentioned at (ii) above shall be prepared with reference to the date of completion by the officers of the prescribed qualifying service in the respective grade/post."

4. It is not in dispute that in terms of the aforementioned Rules, the petitioners were entitled for consideration for their promotion in Group II of Indian Trade Service against 33-1/3% quota of the vacancies.

5. The petitioners before the learned Tribunal as also before us contended that in terms of the said Rules, they were entitled to be considered for promotion as far back as in the year 1991, but the respondents not only failed and neglected to take steps in this behalf, but filled up the posts from amongst the non- selection Grade III Officers and only an ad hoc basis they were promoted in the year 1993-94, although there had been clear vacancies.

6. A meeting of Departmental Promotion Committee (in short, 'UPSC') on 06.04.1998 for the purpose of relaxation of the ad hoc promotions, where after they were promoted w.e.f. 01.05.1998.

7. The respondents, on the other hand, contended that although UPSC was requested to convene a meeting of DPC for filling up the post of ITS Grade II against 33-1/3% to the quota earmarked for the Export Promotion Officers, but the same was turned down inter alia on the ground that interim order had been passed by the Tribunal in O.A. No. 1125 of 1990 directing not to make regular appointments pending disposal of the case and as such they were promoted on ad hoc basis in 1994.

8. Upon vacation of the said interim order, the promotion were effected from 01.05.1998. As the respondents failed and/or neglected to grant them promotion wit retrospective effect, the original application was filed.

9. The unofficial respondents, however, were promoted by an order dated 08.06.1995.

It is not in dispute that whereas the proceeding for promoting the private respondents was initiated on 04.12.1995 by the internal DPC; UPSC was requested to do so after the said interim stay was vacated by the Tribunal in the aforementioned original application only in terms of the proceedings dated 20.02.1996. The learned Tribunal inter alia held:-

(i) no promotion can be directed to be granted with retrospective effect from the dates on which vacancy arose;

(ii) the petitioners having been promoted w.e.f 01.05.1998 without following procedure and in view of the decision of the Apex Court in M.K. Shanmugam and Anr. v. UOI and Ors., , the said period of promotion cannot be given effect from the said date also and the official respondents having been taken all steps for promoting the petitioners, the delay therefore cannot be attributed to inaction on their part;

(iii) Except Shri S.K. Prasad and Shri A.K. Thareja, no unofficial respondents had been promoted with retrospective effect from 1992.93.

10. It is not in dispute that after the aforementioned order of the Tribunal has been passed final seniority list of Grade II Officers as on 31.12.1999 had been issued on 24.08.2000 wherein the name of the petitioner is at the end of the list without giving them the quota of 33-1/3% as well as panel seniority.

11. Mr. Gyan Prakash, the learned counsel appearing on behalf of the petitioners, inter alia would submit that keeping in view the fact that quota rota system was to be given effect to, the respondents were bound to fill up the posts w.e.f. the respective dates each year when the vacancies arose.

12. The learned counsel would contend that assuming that an order of stay passed by the Tribunal was operative, there had been no bar in holding a meeting of DPC by UPSC or considering the cases for promotion. ON the other hand, in respect of the official respondents, DPC was held and as soon as the stay was vacated, they were promoted on a regular basis.

13. The learned counsel would urge that having regard to the Rules, which were in force, governing the promotion of Grade II in ITS, the vacancies were to be filled up year-wise. Reliance in this connection has been placed on Union of India and Ors. v. N.R. Banerjee and Ors., .

14. The learned counsel would contend that the Ministry of Personnel, Public Grievances and Pensions, which was authorised to determine the controversy relating to recruitment, promotion and seniority, issued a memorandum dated 17.02.1990, the same should have been given effect to having regard to the allocation of business in terms of Clause 3 of Article 77 of the Constitution.

15. Mr. Jayant Bhushan, the learned counsel appearing on behalf of the official respondents, however, would contend that the process of selection as also the authorities, which were to consider the matter for promotion, being different, although the unofficial respondents had been promoted earlier, but therefore no arbitrariness can be inferred.

16. The learned counsel would contend that the question raised in this writ petition, namely, grant of promotion in terms of quota rota system had not been raised before the Tribunal.

17. The learned counsel would contend that the Central Government has a power of relaxation in terms of Clause 15 of the said Rules, which is in the following terms:-

"15. Power to relax:

Where the Government is of the opinion that it is necessary or expedient so to do, it may, by order for reason to be recorded in writing and in consultation with the Commission, relax any of the provisions of these rules with receipt to any class or category of persons of posts."

18. The learned counsel would urge that whereas the DPC had met for the purpose of grant of ad hoc promotion, UPSC never met. The learned counsel would submit that UPSC failed to convene a meeting despite the respondent's letter dated 25.02.1992 and held its meeting only after the interim stay was vacated in June, 1995.

19. Mr. Jayant Bhushan has drawn our attention to the proceedings dated 05.10.1995 for the purpose of showing that the respondents had all along been taking up cases of the petitioners.

20. The learned counsel would contend that having regard to the fact that number of years had passed, the quota and rota must be held to have broken down and in a case of this nature, the Court should not insist upon adherence to the said Rules keeping in view the grave injustice that may be done to the official respondents. Reliance in this connection has been placed on Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra and Ors.,

21. According to the learned counsel that quota of 33-1/3% could not be filled up for reasons beyond the control of the respondents, and, thus, the seniority of the unofficial respondents' would not be disturbed. Reliance in this connection has been placed on P.S. Mahal and Ors. v. Union of India and Ors., and Suraj Prakash Gupta and Ors. v. State of J&K and Ors.,

22. Mr. G.D. Gupta, the learned counsel appearing on behalf of the respondents, on the other hand, would submit that the petitioners cannot claim seniority prior to the date of their entry in the said cadre. It was submitted that 1988 Rules were implemented only in the year 1994, and in that view of the matter, the petitioners cannot claim seniority prior to the date of merger.

23. The learned counsel would contend that the period of ad hoc service cannot be counted for the purpose of counting seniority. Reliance in this connection has been placed on M.K. Shanmugam's case (Supra).

24. The core question, which arises for consideration in this writ petition is as to whether the petitioners herein should have been granted promotion with retrospective effect as no promotion had been made for a period of 6 years in Grade II of ITS although similar benefit had been given to the private respondents by holding four regular DPCs during the said period.

25. It is not in dispute that in terms of the statutory rules of ITS, as noticed hereinbefore, 66-2/3% of Grade II posts are to be filled up by way of promotion from Grade III service and 33-1/3% of the posts by way of promotion from amongst controller/enforcement officer/export promotion officers.

26. As the petitioners were appointed as far back as in the year 1983-84, they were eligible for promotion in the year 1992. Admittedly, the ITS was constituted by a notification dated 20.12.1988 in terms whereof the Export Promotion Cadre of the Ministry of Commerce, to which the petitioners belong, was merged with CTS.

27. According to the petitioners, they were transferred to the Cadre of ITS in the year 1992, whereas according to the respondents, the merger took place by an order dated 17.08.1994, which is to be following terms:-

No. A-42011/37-E.I.

Government of India Ministry of Commerce

New Delhi, the 17th August, 1994

ORDER

Sub: Merger of EP Cadre Offices of Ministry of Commerce at part offices with IETC Organisation.

A Committee was set up in the Ministry of Commerce to study the existing structure of the Export Promotion Cadre in the Ministry of Commerce, functions allotted to it, developments that have taken place after the inception of this cadre, its present role and to suggest changes to streamline its functioning and better cadre management.

2. As a follow-up on the recommendations of the Committee relating specifically to the structure and functioning of Export Promotion Offices at ports, viz. Bombay, Calcutta, Madras, Ernakulam etc. and the discussions held in the meeting chaired by Shri Ashok Kumar, Joint Secretary, on 9th August, 1994, the posts borne on the strength of these offices Along with their incumbents, as per the details in Annexure I to II to this Order are hereby transferred to the O/o DGFT, New Delhi.

3. The above offices are already functioning under the administrative control of the Joint Director Generals, Foreign Trade/Deputy Director Generals, Foreign Trade in charge of Import Export Trade (IETC) Offices at the respective ports in terms of Memorandum No. I-34/47/79-O&M dated 26th December, 1979 (Copy enclosed for ready reference).

4. The transfer of the posts and incumbents as reflected in the Annexures would be subject to the following arrangement:

1. Export Promotion Officers:

5 posts of Export Promotion Officers would be kept intact and the remaining 2 should be abolished.

2. Technical Assistants:

Technical Assistants are to be bricketed with existing posts of Licensing Assistants for promotion to the post of section heads.

3. Stenographers, UDCs, LDCs and Group 'D' employees will be absorbed in the respective establishments of DGFT against future vacancies, the incumbent will be no additional temporary strength of the organisation.

Sd/-

(K.S. Mallick) Deputy Secretary to the Govt. of India

28. However, a bare perusal of the said order would show that the same referred to the Officers, who had been working at port offices with ITS organisations.

29. There exists a controversy as to how and in what manner the Officers, who were posted at port offices, were adjusted, but with that we are not concerned at this stage. The merger of the Cadre takes place when an order is issued in this regard.

30. It is not in dispute that an amendment in Rule 8D of the Rules of 1977 was effected on 20.12.1988 whereby and whereunder 33-1/3% of the posts were to be filled up by promotion on the basis of selection of controller/enforcement officers/export promotion officers. Petitioners, indisputably, on issuance of the said notification dated 20.12.1988 came in CTS.

31. As the petitioners at all material times had been working in the Ministry of Commerce, for all intents and purposes, they became members of ITS, Group 'A' w.e.f. 20.12.1988. It may not, thus, in our opinion, be correct to contend that the Cadre was merged only w.e.f. 17.08.1994, which, it will bear repetition to state, was in relation to the officers, who were posted in different ports.

32. Having regard to the quota rota rule, can it be said that the petitioners were not entitled to consideration for promotion as far back as in the year 1992? The answer to the said question must be rendered in affirmative.

33. On or about 25.02.1992, cases of the petitioners were referred to UPSC for their promotion stating:-

No. A-12023/5/92-E.I.

Government of India Ministry of Commerce

New Delhi, the 25th February, 1992

To The Secretary, UPSC, Dholpur House, New Delhi

(Attention: Shri D. Sivarajan, Under Secretary)

Subject DPC to consider selection of Officers for promotion to Grade II of CTS from the feeder grade of Controller/EO and EPO on selection basis (33-1/3% of vacancies).

Sir,

I am directed to say that there are 24 vacancies (18 existing and 6 anticipated) in Grade II of CTS under this Ministry to be filled on regular basis by promotion.

2. Under the Central Trade Service (Group 'A') Rules, 1977 as amended from time to time, 66-2/3% of the vacancies in the Grade II of CTS are required to be filled by promotion on them basis of non-selection of Grade III Officers of the service (Asst. CCI & E) with 4 years regular service in the grade and 33-1/3% vacancies are require to be filled by promotion on the basis of selection of Controller of Imports & Exports, Enforcement Officer and Export Promotion Officer with 8 years regular service in the respective grades.

3. The present proposal relates to filling up of 8 vacant posts (6 existing and 2 anticipated) in Grade II of CTS earmarked for promotion from these three grades on selection basis. The DPC proforma duly filled in along with up-to-date copy of recruitment rules is sent herewith. It is requested that the time and date convenient to the member UPSC who will preside over the meeting of the DPC, may kindly be communicated to this Ministry at an early date. The CR dossiers of the eligible officers are being collected and will be sent shortly.

4. In this connection, it is also stated that the CTS Officers Association had filed a Miscellaneous petition No. 1577 of 1990 in OA No. 1603 of 1989 before the CAT, Principal Bench, New Delhi and the Hon'ble Tribunal passed the following order:-

"The respondents may file reply within ten days. List for further directions on 29.8.91. In the meanwhile the respondents shall not make any appointment to the Grade II posts of the CTS service."

The Tribunal has fixed 10.3.92 for further hearing of the case.

Yours faithfully,

(Jagar Ram) Under Secretary to the Govt. of India)

34. The order, which allegedly came in the way of the petitioners for being considered for promotion by UPSC was an order of stay passed by the Tribunal in O.A. No. 1125 of 1990 whereby and whereunder the respondents wee directed not to pass any final order.

35. UPSC, thus, committed an illegality in refusing to accede to the request of the respondents in considering the petitioners' cases fr promotion in terms of its letters dated 08.09.1992, which is in the following terms:-

UNION PUBLIC SERVICE COMMISSION (SANGH LOK SEVA AYOG) DHOLPUR HOUSE, SHAHJAHAN ROAD

New Delhi-110011 8-9-92

To, The Secretary to the Govt. of India, Ministry of Commerce,

O/o the Chief Controller of Imports & Exports, Udyog Bhawan, New Delhi.

(By name to Shri A. Sen, Asstt. Chief Controller of Imports & Exports)

Subject: DPC to Consider selection of officers for promotion to Grade-II of CTS from the feeder grade of Controller/E.O./E.P.O. on selection basis (33.1/3% of vacancy) regarding.

Sir,

I am directed to refer to your letter No. A. 12023/5/92/E-I/Admn. G-II/5 dated 12.08.92 on the above subject and to say that is observed from the CAT's interim order dated 5.06.92 that during the pendency of application filed by the CTS officers Association regular appointments to grade-II posts cannot be made.

It is, therefore, requested that as and when regular appointments are to be made, a self-contained proposal may be made for Commission's consideration. In the meantime the proposal is treated as closed at this end.

Yours faithfully,

(Smt. B. Thyagarajan) Deputy Secretary)

Tele: 387358

36. The respondent again began the said exercise in October, 1995, but no action was taken thereupon and proposals had only been sent in the year 1996.

37. In the aforementioned situation, the petitioners had been granted promotion on an ad hoc basis.

38. It is not in dispute that no vacancies as have been earmarked for 33 1/3% quota in the seniority list was filled up in the years 1990, 1991, 1992 and 1993. the vacancies as was obtaining in the said quota up to 1995 is follows:-

"Year-wise break up of the number of regular vacancies indicated in column 7 of item 3 (as required vide MHA OM No. 22011/3/76 - Estt. (D) dated 24.12.80).

  Year         General         SC         ST         TOTAL
For 33 1/3% Quota
1989           -           01       -         01 
1990           01           -       -         01 
1991           02           -       01        03    33-6*=27 
1992           02          01       -         03* Recently abolished 
1993           11          02       01        14 
1994           08          01       01        10 
1995            01           00        00         01 

Total           25           05        03         33
 

Note:- Regular vacancy means as defined in Section IV of the DOP & AR OM. No. 22011/6/75-Estt. (D) dated 30.12.76." 
 

39. The said vacancies were sought to be filled up till the DPC was held in 1998. It may be noticed that the respondents had promoted 26 Officers w.e.f. 24.12.1996 in their order dated 27.12.1996 amongst them the promotions have been granted to the unofficials respondents herein, namely, Shri Satyen Sharda, Shri Amiya Chandra, Shri Tapan Majumdar and Shri O.P. Hisaria.

40. Would the petitioners suffer because of delay of 6 years in holding of DPC? The answer to the said question must be rendered in negative. The unofficial respondents, who were having their own quota of 66 2/3% and the petitioners in the matter of inter-se seniority could not have been treated differently. If an injustice has been done to them for no fault of theirs, there may not be any reasons as to why fair and equitable justice would not be meted out to them, particularly when they had an existing right therefore.

41. In Union of India and Ors. v. N.R. Banerjee and Ors., 1997 SCC (L&S) 1194 the Apex Court has clearly held that in case of failure to convene DPC, a certificate is required to be issued by the department that no eligible persons were available therefore and/or there was no vacancy.

42. In Union of India and Ors. v. Vipun Chandra Hira Lal Shah, it was stated:-

"13. Therefore, while upholding the judgment of the Tribunal that the respondent is entitled to seek fresh consideration on the basis that the selection should be made for vacancies occurring in each year separately, but in substitution of the directions given by the Tribunal in that regard, the following directions are given:-

(1) The number of vacancies falling in the quota prescribed for promotion of State Civil Service officers to the Service Shall be determined separately for each year in respect of the period from 1980 to 1986.

(2) The State Civil Service officers who have been appointed to the Service on the basis of the impugned Select List of December, 1986/ January, 1987 and were senior to the respondent in the State Civil service shall be adjusted against the vacancies so determined on year-wise basis.

(3) After such adjustment if all the vacancies in a particular year or year are filled by the officers referred to in para (2), no further action need be taken in respect of those vacancies for the said year/years.

(4) But, if after such adjustment vacancy/vacancies remain in a particular year/years during the period from 1981 to 1986, notional Select List/Lists shall be prepared separately for that year/years on a consideration of all eligible officers falling within the zone of consideration determined on the basis of the vacancies of the particular year.

(5) If the name of the respondent is included in the notional Select List/Lists prepared for any particular year/years during the period 1980 to 1986 and if he is so placed in the order of merit so as to have been entitled to be appointed against a vacancy of that particular year, he be appointed to the Service against that vacancy of that year with all consequential benefits.

(6) The vacancy against which the respondent is so appointed would be adjusted against the subsequent vacancies falling in the promotion quota prescribed for the State Civil Service officers.

(7) Such appointment of the respondent would not affect the appointments that have already been made on the basis of the impugned Select List of December, 1986/January, 1987.

43. It is not in dispute that in the facts and circumstances of this case, such vacancies were available and UPSC did not hold its meetings only because of a purported order of stay. We do not find any logic as to why despite the written advice of Department of Personnel & Training (in short, 'DOPT'), why year-wise panel could not be prepared.

44. It is also not in dispute that there does not exist any statutory rule for determination of inter-se seniority and thus the instructions given by DOPT are required to be followed. The consolidated instruction was given by DOPT on 22.12.1959. A clarification thereof dated 07.02.1990 is as follows:-

"No. 20020/4/89-Estt. (O) Government of India, Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training

New Delhi, the 7.2.1990

OFFICE MEMORANDUM

Sub:- Inter-se-seniority of promotees from more than one feeder grades-Clarification regarding.

The undersigned is direct to refer to M.H.A. O.M. No. 9/11/55-RPS dated 22.12.1959 on the above subject and to say that the following clarification has been given therein:

" General Principle 5(ii) Illustration; Where 75% of the vacancies in the grade of Head Clerk are reserved for promotion from the grade of Upper Division Clerk and 25% from the grade of Storekeeper shall be arranged in separate lists with reference to their relative seniority in those grades. The DPC will make selection of three candidates from the list of UDC and 1 from the list of Store Keeper. Thereafter, the selected persons from each list shall be arranged in a single list in a consolidated order or merit assessed by the DPC which will determine the seniority of the persons on promotion to the higher grade."

2. The illustration referred to above relates to a situation where promotion is made by single DPC from ore than one stream and by selection. This principle cannot be applied to cases where thee is a separate DPC for promotion from either stream and the method of selection from either stream may also vary. It is clarified that in such cases the principle of rotation of vacancies between different streams will have to be followed and not general principle 5 (ii) referred to above. For instance, if promotion to a grade is made 50% from Grade 'A' and 50% from Grade 'B' through separate DPCs, vacancies in the promotion quota may be filled in the order, A1, B1, A2, B2, A3, etc. assuming that A1, A2, A3 are the candidates included in the select list of 'A' and 'B' 1 & 'B' 2 are those included in the select list of Grade 'B'.

3. It is requested that this clarification may be brought to the notice of all concerned for guidance/ compliance.

Sd/-

(M.L. KESAVAN) Director"

45. Para 2 of the aforesaid clarification dated 07.02.1990 clarifies the said position.

46. It was not a case where it can be said that the rota quota system had completely broken down. The same could not be followed because of an order of stay issued by the learned Tribunal. In that situation, the principle actus curaie nemeanim gravavit would apply.

47. Where the rota quota system did not completely break down, the Court normally would insist upon filling up posts in terms thereof. It is one thing to say that in a particular year, there does not exist any vacancy or eligible persons, therefore, are not available, but it is another thing to say that though vacancies exist and eligible persons for consideration are available, the posts had not been filled up for any reason whatsoever.

48. In Nirmal Chandra Bhattacharya v. Union of India, 1991 (1) SLR 763 it has been stated:-

"If the department would have proceeded with the selection well within t me and would have completed it before 1st August, 1983, the appellant would have become Ticket Collector without any difficulty. The mistake or delay on the part of department, therefore, should not be permitted to recoil on the appellant."

49. Seniority is a civil right, but where such seniority affects further promotion, if persons eligible therefore are not considered for promotions in the manner laid down under the law, their right under Article 16 be violated.

50. In Ajit Singh (II) and Ors. v. State of Punjab and Ors., the Apex Court has held:-

"22. Article 14 and Article 16(1) are closely connected. They deal wit individual rights of the person. Article 14 demands that the "State shall not deny to any person equality before the law or the equal protection of the laws". Article 16(1) issues a positive command that "there shall be equality of opportunity for all citizens in the matters relating to employment or appointment to any office under the State". It has been held repeatedly by this Court that Sub-clause (1) of Article 16 is a facet of Article 14 and that it takes its roots from Article 14. The said sub-clause particularizes the generality in Article 14 and identifies, in a constitutional sense "equality opportunity" in mattes of employment and appointment to any office under the State. The word 'employment' being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment. Article 16(1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be "considered" for promotion. Equal opportunity here means the right to be "considered" for promotion. If a person satisfied the eligibility and zone criteria but is not considered for promotion. Then there will be a clear infraction of his fundamental right to be "considered" for promotion, which is his personal right."

51. In A.K. Bhatnagar and Ors. v. Union of India and Ors., it has been held:-

"7. The law is clear that seniority is an incidence of service and where the service rules prescribe the method of its computation, it is squarely governed by such rules. In the absence of a provision ordinarily the length of service is taken into account. A dispute of this nature normally arises between recruits from two sources, namely, direct and promotees. In this group of cases, however, we are concerned with the inter se seniority between direct recruits alone. The note to Schedule VIII indicated that the inter se seniority of recruits of one year would be on the basis of merit.

8. It was considerably disputed before us as to whether there were regular recruitment examinations and an attempt was even made to equate the examination contemplated under the Rules with the screening contemplated under the amended proviso. We have found no force in such a contention. The steps taken by the Union Government and the acceptance of such steps by the regularized officers clearly militate against such a contention.

13. On more than one occasion this Court has indicated to the Union and the State Governments that once they frame rules, their action in respect of mattes covered by rules should be regulated by the rules. The rules framed in exercise of powers conferred under the proviso to article 309 of the Constitution are solemn rules having binding effect. Acting in a manner contrary to the rules does create problem and dislocation. Very often Government themselves get trapped on account of their own mistakes or action in excess of what is provided in the rules. We take serious view of these lapses and hope and trust that the Government both at the Centre and in the States would take note of this position and refrain from acting in a manner not contemplated by their own rules. There shall be no order as to costs."

52. In T.N. Sexena v. State of U.P., (1992) 19 ATC 96 it was held:-

"6. We may refer to two decisions of this Court being V.B. Badami v. State of Mysore and Gonal Bihimappa v. State of Karnataka. Badami case was a decision of a three judges bench while other is a by two judges bench. Both these cases have laid down the rule that where recruitment was from two sources for a cadre and a quota rule has been prescribed, seniority has to be regulated by quota... ..."

53. We may note that the Constitution Bench of the Apex Court in Direct Recruit Class II Engineering Officers Associations v State of Maharashtra ,, it was held thus:-

"47. 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 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 make 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 regularization 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 rules, it should be substituted by an appropriate rule to meet the need 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.

(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 wen 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 scrutinized for finding out any possible error. It is not in the interest of Service to unsettle a settled position."

54. According to the petitioner, Clause 'C' of the aforesaid para would be applicable in this case, whereas according to the respondent, Clause 'E' thereof would be applicable. In our opinion, having regard to the facts and circumstances of this case Clause 'C' of the aforesaid para No. 47 would be applicable. Our reason for holding so is that in this case it cannot be said that the rota quota system has been completely broken down and, in our opinion, having regard to the fact that cases of the petitioners could not be considered for promotion for no fault on their part despite the fact that they had been eligible and they had been subsequently found fit for the same, their date of promotion should relate back from the date when they were found to be entitled to the promoted in normal course.

55. The decision of the Constitution Bench of the Apex Court in Direct Recruit Class II Engineering Officers Association's case (Supra) had been explained by the Apex Court in State of West Bengal v. Aghox Nath Dey, . In Union of India v. S.D. Gupta and Ors., 1996 SCC (L&S) 811, (1996) 8 SCC 14 it has been held:-

"7. It is seen that admittedly the vacancies for the promotees had arisen on 3-5-1979 and thereafter V.P. Misra is entitled to the vacancy that arose on that date. Therefore, when the inter se seniority is determined between the promotees to the substantive vacancies that have arisen on 3-5-1979 and thereafter, though direct recruits were recruited later, their fitment in the order of seniority should be determined with reference to rota and quota prescribed under the aforestated administrative instructions and the statutory rules. It would appear that the Government of India had worked out the rota and quota in tune with the above rules."

56. The submission of Mr. Gupta to the effect that there cannot be any retrospective merger, although correct, but in the facts and circumstances, as noticed hereinbefore, the merger of cadre took place in the year 1988 and not in the year 1994 as was submitted. There lies distinction between merger of the port offices and merger of cadre. The letter dated 17.08.1994 whereupon reliance has been placed by Mr. Gupta has nothing to do with the merger of cadre and, as noticed hereinbefore, the same only related to the officers, who were posted in the port offices. By reason of the said letter, neither the cadre rule was amended, nor the same had any relevance for consideration for promotion of the Export Promotion Officers to Grade II in ITS.

57. Furthermore, as the petitioners had been granted ad hoc promotion, which as granted to them not by way of a stop-gap arrangement, but because of UPSC'S failure to hold DPC for consideration of the cases of the petitioners, as noticed hereinbefore, the principle laid down by the Apex Court in Direct Recruit Class II Engineering Officers Association's case (supra), shall also apply in the instant case. We may notice that the question has since been considered by the Apex Court in Suraj Prakash Gupta v. State of J&K, wherein the Apex Court has held:-

"62. This principle is supported by ample authority. Procedural inaction towards promotees, it has been held, can be "rectified" . This is explained in the three- Judge Bench case in State of W.B. v. Aghore Nath Dey. . In that judgment propositions (A) and (B) laid down in Direct Recruit case were explained by Verma, J. (as he then was). It was pointed out that proposition (A) where it was held that the ad hoc service would not count was one where the same was stopgap (i.e. and remained as such). In proposition (B) it was said that ad hoc service could count in certain situations such as where there was only a "procedural" irregularity in making appointments according to rules. In such a situation, the irregularity can be subsequently "rectified". In such a case such ad hoc-stopgap or temporary service could be counted. Again in Syed Khalid Rizvi case it was held by Ramaswamy, J. speaking for the three-Judge Bench that propositions (A) and (B) in Direct Recruit case had to be read with para 13 therein. Similarly, in I.K. Sukhija v. Union of India, Nanavati, J. explained propositions (A) and (B) by reference to Aghore Nath Dey case referred to above.

The Andhra Pradesh cases are based on similar rule - such service can be regularized with retrospective effect.

67. Apart from the cases arising from Andhra Pradesh the position appears to be the same as per the cases arising from of other States, so far as the promotees' and hoc service is concerned. In Baleshwar Dass v. State of U.P. , it was observed that (at page 464) that officiating promotees are to be given dates by the Service Commission for counting seniority. In B.S. Yadav v. State of Haryana, 1980 Supp SCC 524 it was said that the promotees have to be confirmed in their quota if found fit and qualified and when vacancies arose in their quotas. In A. Janardhana v. Union of India, it was observed that the seniority of the promotees was to count from the date of occurrence of vacancy in their quota. In G.P. Doval v. Chief Secy., Govt. of U.P., it was held that subsequent approval by the Public Service Commission to the temporary appointments will relate back to the initial dates of appointment for the purpose of seniority on the basis of the rule of continuous officiation and the seniority could not be reckoned only from the date of approval or selection by the Commission. In Narender Chadha v. Union of India, it was held that he promotees were first to be regularized from the dates of occurrence of vacancies/eligibility. The initial appointment though not according to rules, the said service could not be ignored. In A.N. Pathak v. Secy. to the Govt., 1987 Supp SCC 763 it was held that the promotees had to be inserted at places reserved for them as per quota. In Delhi Water Supply & Sewage Disposal Committee v. R.K. Kashyap, 1989 Supp (1) SCC 194 it was held that once regularization was made by PSC/DPC, the said service could not be ignored.

As to when post of ad hoc/stopgap service of promotees cannot be regularized-if outside quota or not eligible or suitable.

68. In some cases, a distinction is made between two parts of the ad hoc/stopgap service of promotees, one which can be regularized and the other which cannot be regularized. In Keshav Chandra Joshi v. Union of India, 1992 Supp (1) SCC 272 it was held that previous promotees would get regularization from the date of occurrence of vacancy in the promotion quota. Before that, it would be fortuitous. Of course, excess promotees could not claim seniority if the quota rule had not broken down because they occupy the seats of direct recruits. In Rajbir Singh v. Union of India, the ad hoc promotion was in 1975 and the subsequent regularisation was in 1986 and it was held that the period of ad hoc service could be counted. In A.N. Sehgal v. Raje Ram Sheoran, it was held that the promotees whose services were regularized could count their earlier service from the date of availability of a post within their quota but the earlier period between the starting point of ad hoc promotion and the date of occurrence of the vacancy could not be counted. In S.L. Chopra v. State of Haryana, 1992 Supp (1) SCC 391 it was held that the promotees' service would count from the date of availability of post within the quota and service before that date would be fortuitous. In Syed Khalid Rizvi v. Union of India, 1993 Supp (3) SCC 575 it was held that the service of promotees would count from the date of allotment to the select list but the period prior thereto would not count. In Keshav Deo v. State of U.P., . Srinivasan, J. held, on a review of case-law that seniority of promotees would count from the dates fixed within the quota by DPC. (In this case, a good number of judgments, which were relied upon before us by direct recruits were distinguished.)

69. Thus, there is overwhelming authority of this Court to hold that ad hoc, stopgap service could be regularized from an anterior dater after consulting the Service Commission from the date of vacancy in the promotee quota, after considering fitness, eligibility, suitability and ACRs. Therefore, the ad hoc/stopgap service rendered by promotees beyond six months and without the consent of the Public Service Commission as per Regulation 4(d)(ii) cannot be treated as non est. It can be regularized later after consulting the Commission in respect of posts in the promotion quota and subject to eligibility and suitability based on ACRs, etc. Only the period rendered outside the quota or the period rendered within the quota when the promotee was not eligible or found fit has to be excluded."

58. Even if the rule of continuous officiation is applied in the case of the petitioners, they would be senior to that of the unofficial respondents. At this juncture, we may notice that the Apex Court in Narender Chadha and Ors. v. Union of India and Ors., held:-

25. Having given our anxious consideration to the submissions made on behalf of the parties and the peculiar facts present in this case we feel that the appropriate order that should be passed in this case is to direct the Union Government to treat all persons who are stated to have been promoted in this case to several posts in Grade IV in each of the two Services contrary to the Rules till now as having been regularly appointed to the said posts in Grade IV under Rule 8 (1)(a)(ii) and assign them seniority in the cadre with effect from the dates from which they are continuously officiating in the said posts. Even those promotees who have been selected in 1970, 1982 and 1984 shall be assigned seniority with effect from the date on which they commenced to officiate continuously in the posts prior to their selection. For purpose of seniority the dates of their selection shall be ignored. The direct recruit shall be given seniority with effect from the date on which their names were recommended by the Commission for appointment to such grade or posts as provided in Clause (a) of Rule 9-C of the Rules. A seniority list of all the promotees and the direct recruits shall be prepared on the above basis treating the promotees as full members of the Service with effect from the dates from which they are continuously officiating in the posts. The direction shall be applicable only to officers who have been promoted till now. This is the meaning of the direction given by the court on February 1, 1984, which stated, 'we wish to make it clear that there is no question of any rotation system being applied under the Rules, as they exist now'. All appointments shall be made hereafter in accordance with the Rules and the seniority of all officers to be appointed hereafter shall be governed by Rule 9-C of the Rules.

59. In M.K. Shanmugam and Ors. v. Union of India, whereupon the learned counsel for the respondents as also the learned Tribunal placed strong reliance, in our opinion, cannot be held to be applicable in the instant case inasmuch as the petitioners herein were not promoted by way of stop-gap arrangements, they were promoted having regard to the fact that UPSC had not been holding its sittings, despite the fact that they were fully eligible therefore.

60. The submission of the learned counsel for the respondents to the effect that as the quota system had been abolished in the year 1996, the petitioners could not have been considered thereagainst in the year 1998 is stated to be rejected where a right of the parties had been sought to be taken away. No retrospectivity can be given to the rule unless it is expressly made applicable.

61. The submission of the learned counsel for the respondents to the effect that the petitioners were not entitled to be considered for promotion in terms of the seniority rule, such a right of consideration for promotion in terms of Article 16 of the Constitution of India cannot be denied only because the policy decision of the State has resulted in a change. It is trite that in such a situation, the rules cannot be given a retrospective operation.

62. For the reasons aforementioned, we are of the opinion that the impugned judgment of the Tribunal cannot be sustained, which is set aside accordingly. This writ petition is allowed. However, in the facts and circumstances of the case, there shall be no order as to costs.