1998 Supreme(SC) 1253

1998(9) Supreme 481
Supreme Court of India
(From Punjab & Haryana High Court)
S.B. Majmudar & M. Jagannadha Rao, JJ.
State of Punjab & Ors. —Appellants
versus
Dr. R.N. Bhatnagar & Anr. —Respondents
Civil Appeal No. 6446 of 1998
(Arising out of SLP (C) No. 20982 of 1997)
Decided on 18-12-1998
Counsel for the Parties :
For the Appellants : H.K. Puri and R.S. Sodhi, Advocates.
For the Respondent : P.S. Patwalia and Manoj Swarup, Advocates.
For the Respondent No. 2 : P.P. Rao, Sr. Advocate, G.K. Bansal, Sanjay Bansal, Jamshed Bey and Ajay Talesara, Advocates.

Headnote:Service Law—Recruitment for post of Professor—Quota and rota rule—Punjab Medical College Educational Service (Class I) Rules, 1978—Rules 3 and 9—Statutory rule of quota and rota system came to effect from 28.7.1978—Same method followed earlier by executive instructions—Five posts of Professor existed in department of Opthel­mology — Following quota rota system three vacancies filled in by promotees and fourth by direct recruit—Succeeding vacancies filled in by promotees and direct recruits in successive cycles of 3 : 1—15th Professor retired—16th vacancy arose—Advertisement to fill up vacan­cy by direct recruit—Respon­dent/original petitioner’s case that 16th vacancy must go to departmental promotee and not to direct recruit—High Court accepting plea on the reasoning that if 75 of post i.e 3.75 post rounded upto 4 in case of departmental promotees and 25 i.e 1.25 post which is rounded up as 1 post in case of promotee 16th vacancy would go to promotee as already one direct recruits was hold­ing post when disputed vacancy arose—Interpreta­tion of rule not sus­tainable—Reasoning of High Court not acceptable—On basis of execu­tive instruction of quota rota system 16th vacancy must go to promo­tee—However, statutory rule came into effect on 28.7.1978—As on that date new cycle of roster began as per proviso to Rule 3—On the date statutory rule came to effect three promotees and one direct recruits were holding posts of Professor—5th vacancy, therefore must go to departmental promotee—Reasoning of High Court for ultimate conclusion not correct—How­ever, conclusion of High Court sustained on different reasoning—Advertisement for direct recruitment quashed.

       Held : So far as Rule 9 of the rules in the present case is concerned, it has nothing to do with reservation of posts in the cadre of Professors. It is not a rule of reservation envisaged for a specified category of persons as permitted by Article 16(4) of the Constitution. On the contrary, it is a rule of recruitment from two different sources, namely, in case of Professor’s cadre 75 of posts has to be filled in by promotion while 25 by direct recruitment. These two sources of recruitment permit departmental promotees and direct recruits from the open market to get absorbed in the cadre. They merely serve as two entry points for the cadre. Rule 9 deals with reservation of appointment to the posts of Professor and does not deal with reservation of posts of Professor for any special class or category of candidates. It is well settled that once recruitment is made for two sources i.e. departmental promotees and direct recruitment from open market and once the concerned candi­dates enter into any cadre through entry point reserved for them, they get fused and blended into one single cadre and their birth marks get obliterated. When posts in a cadre are to be filled in from two sources whether the candidate comes from the source of departmental promotees or by way of direct recruitment once both of them enter a common cadre their birth marks disappear and they get completely integrated in the common cadre. This would be in conso­nance with the thrust of Article 16(1) of the Constitution of India. No question of exception to the said general thrust of the constitu­tional provision would survive as Article 16(4) would be out of pic­ture in such a case. Consequently, the decision rendered by the Con­stitution Bench in R.K. Sabharwal’s case (supra) in connection with Article 16(4) and the operation of roster for achieving the reserva­tion of posts for SCs, STs and BCs as per the scheme of reservation cannot be pressed in service for the present scheme of Rule 9(1) is not as per Article 16(4) but is governed by the general sweep of Article 16(1). Therefore, the roster for 3 promotees and one direct recruit is to be continued every time a vacancy arises and there is no question of filling up a vacancy arising out of a retirement of a direct recruit by a direct recruit or on the retirement vacancy of a promotee by a promotee. Consequently, the question of rotating the vacancies as posts or for treating the posts mentioned in the rules of recruitment as necessari­ly referable to total posts in the cadre at a given point of time in the light of R.K. Sabharwal’s judgment (supra), therefore, cannot survive for in the case of a quota rule between direct recruits and promotees the same is to be judged on the touchstone of Article 16(1) and the statutory ryles governing the recruitment to the posts of Professor constituting the Punjab Medical Education Service (Class-I) and not on the basis of Article 16(4). The Division Bench in the impugned judgment with respect wrongly applied the ratio of R.K. Sabharwal’s case (supra) governing Article 16(4) to the facts of the present case which are governed by Article 16(1). (Para 10)

       When under the recruitment Rule 9 in question there is no reservation of any given category of candidates like SCs, STs or BCs to the posts in the cadre of Professors, appointments to the posts in the cadre have to be made in the light of the percentage of vacancies in the posts to be filled in by promotees or direct recruits. The quota of percentage of depart­mental promotees and direct recruits has to be worked out on the basis of the roster points taking into consideration vacancies that fall due at a given point of time. As stated earlier, as the roster for 3 promotees and one direct recruit moves forward there is no question of filling up the vacancy created by the retirement of a direct recruit by a direct recruit or the vacancy created by a promotee by a promo­tee. Irrespective of the identity of the person retiring, the post is to be filled by the onward motion of 3 promotees and one direct re­cruit. Whenever in the cadre of Professors of Ophthalmology vacancies arise for being filled in at any given point of time, those vacancies in the posts have to be filled in by operating the roster in such a way that avail­able vacancies get filled up by allotting 75 of them to departmental promotees and 25 to direct recruits. Exactly in this way the roster in the present case was opera­ted by the appellant-State to regulate entry in the cadre of Professors. (Para 12)

       For working out the rule of recruitment envisaging appointments from two sources of promotees and direct recruits vacan­cies in the cadre of Professors had to be kept in view and not the posts themselves. If the view which appealed to the High Court is to be accepted the very Rule 9 and the scheme envisaged by it for effecting appointments to the cadre in the ratio of 75 for promotees and 25 for direct recruits would get stultified and frustrated. If four vacancies are filled in from promotees and only one vacancy is to be kept for a direct recruit on the basis that there are total five posts in the cadre, then 75 of five posts would work out at 3.75 and have to be rounded up as four for the promotees and the remaining 1.25 posts have to be rounded up as only one post being less than 1.50. Thus, in substance, the source of recruitment for promotees would get enhanced to 80 and that of direct recruits would be reduced to 20 . That would fly in the face of the statutory rule which does not envis­age such percentage of reservation for promotees and direct recruits. (Para 12)

       The reasoning adopted by the High Court in connection with the working of the aforesaid rule falls foul on the touchstone of Article 16(1) read with statutory scheme as envisaged by these rules. In the light of our aforesaid conclusion, it becomes obvious that the disputed 16th vacancy in the cadre of Profes­sors of Ophthalmology consisting of five posts would necessarily go to a direct recruit and not to a departmental promotee as wrongly assumed by the High Court while allowing the writ petition. (Para 12)

       The Punjab Medical Education Ser­vice (Class-I) was constituted for the first time by the statutory rules with effect from 28th July, 1978. That Rule 4 of the rules lays down that the service shall comprise of posts shown in Appendix ‘B’. We have referred to Rule 4 and entries in Appendix ‘B’ while considering point No. 1. Rule 9(i) lays down that appointment to the posts in the service shall be made in the manner provided therein. As noted earlier, Rule 9(i)(d) enjoins that in case of Professors 75 of posts were to be filled in by promotion while 25 posts by direct recruitment. Therefore, the Punjab Medical Education Service (Class-I) which was constituted with effect from 28th July, 1978 as per the statutory rules had to comprise of cadre of Professors mentioned in Appendix ‘B’. The recruitment to such cadres of Professors would be governed by Rule 9(i)(d). It becomes, therefore, clear that from 28th July, 1978 onwards while working out the statutory scheme of the rules for the purpose of constitution of the service in question, the rotational cycle envis­aged by the quota of rule as aforesaid had to start from the very first vacancy in the cadre occurring on or after 28th July, 1978. This conclusion is reached on a conjoint reading of Rules 3 and 9 of the rules as aforesaid. As Rule 3 clearly provides that there shall be the constitution of service to be known as the “Punjab Medical Education Service (Class-I)” consisting of persons recruited to the service under Rule 9 after the commencement of these rules. Thus, fresh re­cruitment to the service had to be made under Rule 9 after the com­mencement of the rules. However, a question arose as to what was to be done with respect to those incumbents in the cadre who were earlier recruited when the erstwhile executive instructions were holding the field and wherein the same quota rule governing the recruitment from two sources i.e. promotion and direct recruitment was holding the field. For answering that question proviso to Rule 3 got enacted. It has to be examined closely. It lays down that “the persons holding the posts specified in Appendix ‘B’ to these rules immediately before such commencement shall be deemed to be appointed to the service in accord­ance with the provisions of the rules on the designation, grade and any scale laid down in Appendix ‘B’ to these rules or the grade and pay scale for which they duly exercised their option”. If the proviso was to operate, the following conditions were to be satisfied before the deeming fiction laid down therein could give signals in favour of incumbents in the cadre of Professors recruited earlier under the erstwhile executive instructions for recruitment:

        (i) The persons concerned must be holding posts specified in Appendix ‘B’;

        (ii) They must be holding posts immediately before the commence­ment i.e. immediately before 28th July, 1978, meaning thereby they must be working as Professors when the statutory rules came into force;

        (iii) If the aforesaid two conditions were satisfied then such existing incumbents to the posts in the cadre of Professors would be deemed to have been appointed in service in accordance with the provisions of the rules meaning thereby, they will not be treated to be outside the cadre of Professors as envisaged by the statutory rules i.e. not ex-cadre employees and their existing incumbency will be protected though actually when they were recruited, Rule 9 was not in the picture and it is not the case of any one that Rule 9 has any retrospective effect; If the aforesaid three conditions are satisfied the deeming fiction with reference to these incumbents holding posts of Professors in the cadre of 28th July, 1978 will be treated to have been appointed regularly with a view to protect their rank, grade and scale laid down in Appendix ‘B’ to the rules or the grade and pay scale for which they duly exercised their option earlier. The fourth condition clearly shows that the deeming fiction created by the provi­so has a limited effect. It only regulates the incumbency of the holders of the post of Professors in the cadre on the appointed day when the statutory rules operated and, therefore, regularisation will be deemed to be under the new rules for the purpose of protecting their rank, grade and scale of pay. The deeming fiction has been created by the proviso for this limited purpose only. It, therefore, becomes obvious that this deeming fiction cannot be extended by analo­gy to cover any other field not meant to be covered by its sweep. It is difficult to accept the contention of learned senior counsel Shri Rao for the intervenor that because of this deeming fiction it can also be visualised that all those Professors who were earlier recruited under the erstwhile executive instructions can be deemed to have been recruited as per 75 quota of departmental promotees and 25 quota of direct recruits as envisaged by Rule 9(i)(d). To accept this contention would amount to re-writing the proviso to the effect that the persons appointed to the posts specified in Appendix ‘B’ of these rules immediately before such commencement including those who have retired and were not holding any post as on 28th July, 1978 shall be deemed to be in service in accordance with the provisions of these rules on the designation, grade and any scale laid down in Appendix ‘B’ etc. to these rules or the grade and pay scale for which duly exercised their option. It is obvious that the proviso has purposely not used the phraseology “persons appointed to the posts” but has only used the phrase “persons holding posts as found in Appendix B”. The source of their appointments under the erstwhile executive instructions and the erstwhile percentage of reservation earmarking posts for promotees and direct recruits as per executive instructions earlier operating, would remain outside the scope and sweep of the proviso. In other words, if the aforesaid four conditions envisaged by the proviso were satisfied then the incumbents of all posts in the cadre who were actually holding such posts when the statutory rules applied would remain in the cadre irrespective of the source of their earlier recruitment and nothing more. How they came into service earlier when executive instructions held the field is a consideration which is foreign to the express wordings of the proviso. It is also obvious that the earlier method of recruiting these persons cannot be said to have any role to play while constituting the statutory serv­ice, namely, Punjab Medical Education Service (Class-I) which had to be constituted as per Rule 9 read with Rule 3 first part with effect from 28.7.78 and in undertaking that exercise the proviso would remain out of picture. (Para 17)

       On 28.7.1978 when the statutory rules came into force out of the five posts in the cadre, three were filled in by departmental promotees and one was filled in by a direct recruit. The rotational cycle which was earlier envisaged by the executive instructions was on the same lines as the statutory rotational cycle envisaged by Rule 9. Meaning thereby, the first three vacancies will go to promotees and the fourth vacancy will go to a direct recruit. Consequently, by the time the statutory rules came into force and constituted the Punjab Medical Education Service (Class-I) in the cadre of Professors of Ophthalmology three posts were filled in by promotees and one post was filled in by a direct recruit and the proviso would protect them and treat them as cadre employees. That resulted in the complete running up of the first rotational cycle as according to learned counsel for the appellant and learned senior counsel for the intervenor the rotational cycle for the purpose of earmarking the posts in the cadre of Professors would be 75 of posts for promotees and 25 of posts for direct recruits. Meaning thereby, out of four vacancies three will go to promotees and one will go to a direct recruit. Moment that is achieved, the cycle took a full turn even under the proviso, as on 28.7.78. As per the proviso to Rule 3 in the light of the aforesaid factual data, therefore, there is no devia­tion from the conclusion that the earlier cycle of rotation envisaged by the erstwhile executive instructions had taken a full turn. There­fore, any vacancies arising after Dr. Daljit Singh’s incumbency would naturally have to be subjected to a new cycle of rotation as per Rule 9(i)(d) of the rules meaning thereby the 1st, 2nd & 3rd vacancies after the rules came into force would go to promotees and 4th would go to a direct recruit. (Para 18)

       Consequently, on this alternative point, the conclusion is inevitable that the disputed point No. 16 which in substance is point No. 11 when considered in the light of new cycle of rotation as per Rule 9(i)(d) as discussed earlier would be a vacancy point available to be filled in by a departmental promotee. The final decision rendered by the High Court in the impugned judgment to the effect that the advertisement dated 10th May, 1977 has to be quashed when it sought to fill up the post of Professor in the Department of Ophthalmology by direct recruitment, has to be sustained. The final decision of the High Court is upheld by us entirely on a different reasoning centering round the consideration of the new alternative point No. 3, though the reasoning adopted by the High Court for coming to the said conclusion is not accepted by us while deciding point No. 1 as seen in earlier part of this judgment. It is, therefore, held that the impugned advertisement was unauthorised and illegal as it was in connection with roster point No. 16 which in substance was roster point No. 11 and was to be filled in only by a departmental promotee. (Para 18)