1. Dispute over inter-se seniority between promotees and direct recruits regarding the application of the rota and quota system for vacancy fitment. (Para 3 )
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1996 Supreme(SC) 333
1996(2) Supreme 604
SUPREME COURT OF INDIA
K. Ramaswamy and G.B. Pattanaik, JJ.
Union of India & Ors. etc. -Appellants
versus
S.D. Gupta & Ors. -Respondents
Civil Appeal No. 3767 of 1996
(Arising out of SLP (C) No. 4873/96)
(CC - 5506)
with
Civil Appeal No. 3768 of 1996
(Arising out of SLP (C) No. 2293/96)
Decided on 12-2-1996
Important Points
IMPORTANT POINT
The Tribunal was not right in giving directions to the appellants to determine the seniority of the promotees in their quota above the direct recruits vis-a-uis the order passed by Supreme Court in CA arising out of SLP (C) 14389/88 decided on 23.4.91. The Govt. of India had worked out the inter-se - seniority according to rota & quota principle in tune with the statutory Rules.
The Tribunal was not right in giving directions to the appellants to determine the seniority of the promotees in their quota above the direct recruits vis-a-uis the order passed by Supreme Court in CA arising out of SLP (C) 14389/88 decided on 23.4.91. The Govt. of India had worked out the inter-se - seniority according to rota & quota principle in tune with the statutory Rules.
Subject
Employment Law - Seniority
Act Referred
CENTRAL WATER COMMISSION ENGINEERING CLASS I SERVICE RULES: R.8, R.6, R.5
CONSTITUTION OF INDIA: Art.136
CONSTITUTION OF INDIA: Art.136
Headnote
Constitution of India-Article 136-Inter-se-seniority-Between promotees to the substantive vacancies and Direct Recruits in Central Water Commission-Direct recruits were recruited later, Govt. of India had worked out their fitment in the order of seniority with reference to rota and quota principle-Consequently, promotees were pushed down in the order of their seniority-Tribunal giving direction to consider their fitment vis-a-vis the order passed by Supreme Court in CA arising out of SLP (C) No. 14389/88 on 23.4.91 in their quota above the direct recruits-Whether Tribunal was right? (No) (Para 8)
Legal Category Hierarchy
Table of Contents
2. Administrative instructions supplement statutory rules when the latter are silent on the specific mechanism for determining rota and quota fitment for seniority. (Para 6 , 8 )
3. Relative seniority between direct recruits and promotees is determined by the rotation of vacancies based on prescribed quotas, regardless of the date of appointment. (Para 4 , 7 )
4. Appeals allowed; the determination of seniority based on the rota and quota system is upheld. (Para 9 )
5. How is relative seniority determined between direct recruits and promotees when statutory rules are silent on the specific fitment mechanism?
When statutory rules are silent on the fitment of rota and quota, administrative instructions issued by the Government supplement the rules and must be applied to determine inter-se seniority. (Para 6 )
6. Can direct recruits gain seniority over promotees if they were recruited after the promotees were appointed?
Yes, if the rota and quota system is applicable, direct recruits may be fitted into vacancies that make them senior to promotees, even if the direct recruits were appointed later. (Para 7 )
7. Does the temporary nature of initial appointment for direct recruits affect their substantive seniority relative to promotees?
No, direct recruits appointed to substantive vacancies become substantive appointees upon completion of their probation period, making them eligible for seniority fitment under the quota system. (Para 8 )
ORDER
Delay condoned. Impleadment is allowed.
2. Leave granted.
3. We have heard the counsel on both sides. The admitted facts are that the respondents are promotee-Extra Assistant Directors [Class III in Central Water Commission Engineering Class-1 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 promotes. It is not in dispute that 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 O.A. No. 1050/94, the CAT at Delhi had directed the appellants to determine the seniority in the light of the directions issued by this Court in Civil Appeal arising out of SLP (Q 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 appellants have come before us by 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 only from the date a vacancy in the promotees 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 :
"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."
4. The question, therefore, is what will be the principle applicable to the respondent and the direct recruits, in appeal arising out of SLP (C) 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 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 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 .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 selected from different lists in a consolidated order of merit which will determine the seniority of the persons on promotion to the higher grade.
Note : If separate quotas for promotion have not already been prescribed in the relevant recruitment rules, the Ministries/Departments may do so now, in consultation with the Commission wherever necessary.
6. Relative Seniority Of Direct Recruits And Promotees
The relative seniority of direct recruits and of promotees shall be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on the quotation 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
