2004 Supreme(SC) 455

2004(4) Supreme 666
Supreme Court of India
(From Andhra Pradesh High Court)
V.N. Khare, CJI., S.B. Sinha & S.H. Kapadia, JJ.
M. Subba Reddy and Anr. -Appellants
versus
A.P. State Road Transport Corporation and Ors. -Respondents
Civil Appeal No. 4907 of 1999
With
C.A. No. 4908 of 1999
Decided on 12-4-2004
Counsel for the Parties :
For the Appellants : Rakesh Dwivedi, Sr. Advocate, Abhishek Chaudhary, Ms. Vimla Sinha, D. Mahesh Babu, Advocates.
For the Respondents : G.R.K. Prasad, Md. Wasay Khan, T.V. Ratnam, Advocates.

Important point
Where there is inaction on the part of the Government or employer or imposed ban on direct recruitment, in filling up the posts meant for direct recruits, it cannot be held that the quota has broken down.

Headnote:Service Law-Road Transport Corporation Act, 1950-Section 45-A.P. State Road Transport Corporation Employees (Recruitment) Regulations, 1966-Reg. 3, 17, 18, 30, 34-Employees Service Regulations 1964-Regulation 3-Seniority from date of appointment-Posts of Assistant Traffic Manager and Assistant Mechanical Engineer-During period of ban on recruitment, promotions were made from lower feeder posts even in excess of ratio of 1:1-Promotions were made ­either on ad hoc or on temporary ­basis and in course of time they were regularized-Appellant appointed as a Traffic Apprentice in 1971 in the Corporation-He was promoted temporarily in 1983 as Assistant Traffic Manager and regularised-He was confirmed in 1987 as ATM-However, appellants claiming to be senior to direct recruits, placed before the direct recruits in the integrated seniority list-Whether integrated seniority list is in consonance with quota rule of 1:1 under the statutory rules-(Yes) (Majority Judgment).

       Majority Judgment [S.H. Kapadia, J. for V.N. Khare, CJI and for Himself]

        Held : In our view, the averments of the appellants before the High Court, if accepted, would result in complete violation of the quota and rota rule embodied in the above regulations, which cannot be permitted. As stated above, appellants were promoted originally subject to the conditions envisaged in regulation 34 and, therefore, they cannot claim seniority by ignoring the said regulations and on the basis of their officiating services. They were promoted temporarily under regulation 30 which provides for ad hoc promotions. Regulation 34 ensures induction of qualified direct recruits. But for regulation 34, candidates from feeder posts would be temporarily promoted to the slots reserved for direct recruits and on their regularization, the quota prescribed for direct recruits will be defeated. Regulation 34 has been enacted to protect quota prescribed for direct recruits. As stated above, regulation 3 of the service regulations has to be read with regulations 30 and 34 of the said recruitment regulations. The appellants were promoted on temporary basis under regulation 30 with the clear understanding that the period of officiation will not give them any right over direct recruits in future. It is for this reason that regulation 30 (6) states that if a temporarily promotee is subsequently promoted in accordance with the regulations, his probation will commence in the higher category only from the date of subsequent promotions. For the same reason, regulation 34 states that revertees shall be subsequently considered for repromotion against the quota of vacancies reserved for being filled by promotion. Therefore, regulation 34 protects the quota prescribed for direct recruits. On reading regulation 3 of the service regulations with regulations 30 and 34 of the recruitment regulations, it becomes clear that neither the date of promotion nor the date of selection is the criteria for fixation of seniority. The fixation of seniority under the above regulations depends upon the number of vacancies falling in a particular category. Therefore, the rule of rota is inbuilt in the quota prescribed for direct recruits and for promotees in terms of item-3 of Appendix-A (Section-B) to the recruitment regulations. In the present case, the above regulations prescribe a quota of 1:1, which leads to rota for confirmation. The fixation of seniority under the above regulations depends upon the number of vacancies against which promotees became due for promotion. (Para 7)

       Having fixed the quota between the two sources of recruitment, there is no discretion with the corporation to alter the quota or to deviate from the quota. In the circumstances, there is no merit in the argument of the appellants that item-3(1) of Appendix-A (Section-B) prescribes only quota and not rota and that the said item was not for determination of seniority. (Para 7)

       In the present case, in the absence of direct recruitment, the appellants could not have got seniority over direct recruits. Where there is inaction on the part of the Government or employer or imposed ban on direct recruitment, in filling up the posts meant for direct recruits, it cannot be held that the quota has broken down. (Para 9)

       Minority Judgment [S.B. Sinha, J.]

       The direct recruits who were appointed in the years 1990 and 1991, in terms of clause 3 of Annexure ‘A’ would be considered to have been appointed only after their successful completion of training. They were borne in the cadre in the years 1990-1991 and, thus, prior thereto they cannot claim seniority. The consequence of imposing the quota-rota rule would become evident if the seniority list of 10.12.1994 is closely scrutinised. Item No. 20 thereof refers to a promotee Shri U. Brahma Chari. He was temporarily promoted on 21.5.1981 and his services were regularized with effect from 9.7.1981. The direct recruits whose services have been regularized in March, 1991 and October, 1991 would have been senior to him. As noticed hereinbefore those who have been appointed in 1991 would also be senior to the appellant No.1 whose promotion admittedly was regularized with effect from 27.12.1986. (Paras 29 and 30)

       Ban on direct recruitment was an outcome of a policy decision of the corporation. The legality of the said policy decision on the part of the corporation was not questioned by the direct recruits on the ground of mala fide or otherwise. A suitable candidate was, thus, not available in terms of the extant regulations, which should receive a broad interpretation. When in terms of a policy decision, no appointment can be made, the question of finding out a suitable candidate would not arise. Having regard to the policy decision of the corporation the question of considering the candidature of any person for direct recruitment at the relevant time, thus, did not arise. The said policy decision evidently had presumably been taken keeping in view the financial health of the corporation. It is well settled that only because certain vacancies existed, the employer cannot be forced to employ persons against their will. If the ban order was not questioned and the same had been followed over a period of more than 10 years, an inference has to be raised that the quota rule had broken down. (Para 34)

       The direct recruits of 1990 and 1991 by reason of the impugned seniority list could not, thus, have been placed over and above the appellants. (Para 39)