IMPORTANT POINT
Promotees in excess of the Quota as against direct recruits can not be given seniority from the respective dates of their promotion and they have to be considered only from respective dates on which their respective Quota is available.

ORDER

By order dated September 16, 1996 passed by our learned brethren Justice N.P. Singh and Justice S.B. Majmudar, placed these matters before this Bench, since the controversy had already been decided by this Court in a matter in which one of us, K. Ramaswamy, J. was a member, viz., State of Maharashtra & Anr. v. Sanjay Thakre & Ors.1. These cases arise from the common order of the Administrative Tribunal, Bombay in Application No. 83/96 etc. dismissing the above judgment.

2. Mr. M.S.L. Patil, party appearing-in-person has raised five contentions, namely, that the combined seniority as per the rules was to be maintained from the date of the regular appointment or promotion. As per the rules, the petitioner came to be appointed prior to the appointment of the direct recruits. Therefore, the entire length of service rendered by him as an Assistant Conservator of Forests requires to be tagged for maintaining his seniority. If so considered, he would be senior to the direct recruits. Therefore, they cannot scale march over the promotees. It is also contended that the direct recruits unfilled quota cannot be carried forward. He places reliance on the Judgment of this Court in Indra Sawhney v. Union of India2 known as Mandal s case. They were not recruited according to rules. He also contended that he was not made a party to the earlier proceedings which culminated in the aforesaid judgment. Therefore, the decision passed by this Court is violative of the principles of natural justice. He also contended that the third respondent in this case is a direct recruit and has concealed several material facts which led to the open judgment by this Court. Shri Raju Ramachandran, learned senior counsel appearing for some of the promotees, contended that in the earlier case, this Court in paragraph 9 of the judgment has specifically stated the premises that specific material has not been placed on record of the appointment of the promotees, viz., whether their promotions were fortuitous or not. The quota rules was broken down between the direct recruits and the promotees. Even under Rule 4 of the Civil Services (Regulation of Seniority) Rules, 1982, the second proviso thereto gives a power to the Government to certify that the direct recruitment could not be made. In view of the stand taken by the Government in the counter-affidavit filed in the Tribunal that the so-called rule of quota has been broken down, it would amount to certification that it did not make regular recruitment; as a result, promotees gain seniority which has to be counted from the date of the regular promotion. Thereby, they would be senior to the direct recruits.

3. In view of these contentions, the question that arises is : whether the judgment of this Court has been vitiated by any error of law warranting reconsideration at the behest of some of the persons who are not parties to the earlier proceedings ? It is undoubted that they were not parties to their earlier petition but this Court has laid down the general principle of law and, therefore, whether or not they are parties to the earlier proceedings, the general principle of law stands applicable to every person irrespective of the fact whether he is party to the earlier order or not. It is not in dispute that there is a ratio prescribed for the direct recruits and the promotees, namely, 1:1. In other words, for every 100 vacancies the promotees are entitled only to 50 vacancies. It is not in dispute that these promotees have been promoted in excess of the quota. Under those circumstances, it is settled law that the promotees who are appointed in excess of the quota cannot get the entire length of service. Therefore, they are required to be fitted into seniority according to the rules. As to what is the date on which the promotees or the direct recruits came to be appointed into the respective quota is a matter of record and the seniority is required to be determined according to the l