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1995 Supreme(SC) 1080
SUPREME COURT OF INDIA
B.L.Hansaria : B.P.Jeevan Reddy : K.Ramaswamy
Union Of India
Versus
G.K.Vaidyanathan
Case No. : .
Date of Decision : 11/2/95
Advocates Appeared: Babu S.Madhusudhan : Kashyap M.M. : Mani M.N.Krishna : Parameswaran R. : Qadri Wasim A. : Singh P.K. : Suri Sushma
M.M.KASHYAP, M.N.KRISHNA MANI, P.K.SINGH, R.PARAMESVARAN, S.MADHUSUDAN BAB, SUSHMA SURI, VASIM A.QADRI
Headnote:
Appeal against conviction – Jurisdiction - Determination of seniority - Recruitment to post of Grade I was both by promotion as well as by direct recruitment - Until 1979 ratio between and direct recruits was it was changed and with effect from channel of direct recruitment has been closed altogether; the only method of recruitment is promotion from the post of Grade II - When recruitment was done through both the above methods a rule of rotation was also in vogue. Inasmuch as we are concerned in these appeals only with period during which was in vogue it is sufficient to notice that the rotation rule in vogue provided that out of every five vacancies, the first four vacancies shall be filled by and the fifth vacancy by direct recruitment – Held, Learned counsel appearing for on other hand submitted that quota rule must be held to have broken down in the facts and circumstances of these cases and that the concession to that effect was rightly made by the direct recruits before the Madras tribunal. Once the quota rule is held to have broken down, the learned counsel contended, the rule of rotation cannot be followed, in which event the principles enunciated by the Constitution bench of this court in Direct Recruit Class II Engineering Officers Assn. v. State of Maharashtra should be followed - Learned counsel further submitted that following the rule of rotation despite the break-down .of the quota rule results in grave discrimination and arbitrariness and that the said fact was recognized by the government itself which has accordingly issued a fresh set of instructions in its Office Memorandum - Counsel submitted that principles contained in the said Office Memorandum being equitable and just, should be applied even for period anterior to interest of justice, equity - He submitted that the central government was not justified in saying that principles in the said Office Memorandum shall only have prospective operation which really means that the injustice perpetrated earlier to said Office Memorandum was knowingly affirmed - WE are of the opinion that the learned Additional Solicitor General is right in his submission that the decision of the Madras tribunal is based upon a concession and cannot, therefore, be treated as a decision on merits - Said concession made by direct recruits cannot and does not bind the Union of India, which is equally an affected party in matter - No such concession was made by any of the respondents before the Bangalore bench. As stated above, the direct recruits as respondents before Madras tribunal were also as respondents before the Bangalore tribunal. Moreover, the said concession is found to be opposed to record, as found by Bangalore tribunal, which has recorded on a perusal of relevant records, that even during period during which say there was a breakdown in the quota rule both direct recruitments and promotions were being made though it may be that promotions to the cadre were made in excess of the quota. The correctness of the facts recorded in decision of the Bangalore tribunal is not disputed or questioned before us. Once this is so, the very theory of breakdown of the quota rule falls to the ground – Petition dismissed
Judgment
B.P. JEEVAN REDDY, J.
(1) LEAVE granted in Special Leave Petition (C) No.3930 of 1988.
(2) A common question arises in these two appeals. Civil No. 4340 of 1995 is preferred by the Union of India against the decision of the central Administrative tribunal (Madras bench) in Original Application No. 731 of 1981 whereas Civil arising from Special Leave Petition (C) No. 3930 of 1988 is preferred against an order of the Central Administrative Tribunal (Bangalore Bench) in Original Application No. 380 of 1987 as well as the order dismissing a review application filed by the appellants. The dispute is between direct recruits and promotees and it relates to determination of seniority as between them in the post of Chargeman Grade I in the Ministry of Defence, Department of Defence Production.
(3) RECRUITMENT to the post of Chargeman Grade I was both by promotion as well as by direct recruitment. Until 1979, the ratio between promotees and direct recruits was 2/3:1/3. From 3-3-1979, it was changed to 80:20 and with effect from 26-6-1985 the channel of direct recruitment has been closed altogether; the only method of recruitment is promotion from the post of Chargeman Grade II. When the recruitment was done through both the above methods, a rule of rotation was also in vogue. Inasmuch as we are concerned in these appeals only with the period during which the ratio of 80:20 was in vogue, it is sufficient to notice that the rotation rule in vogue provided that out of every five vacancies, the first four vacancies shall be filled by promotees and the fifth vacancy by direct recruitment.
(4) IN Civil No. 43 of 1995, the facts are the following: the first respondent herein (the petitioner before the Madras tribunal) was promoted to the post of Chargeman Grade I on 5/1/1981 on a regular basis. Respondents 3 to 15 in the Original Application (who are Respondents 2 to 13 in this appeal one of them does not appear to have been impleaded as a respondent in this appeal) were appointed as direct recruits to the said post in December 1981. In the seniority list issued in the year 1982, while the third respondent in the Original Application was shown at Serial No. 37, the petitioner in the Original Application (first respondent in this appeal) was shown at Serial No. 141. The other respondents (direct recruits) were also shown as seniors to the first respondent. For further promotion to the post of Assistant Foreman, they were considered on the basis of the aforesaid seniority, with the result that the direct recruits, who were appointed in December 1981 came to be promoted to the post of Assistant Foreman earlier than the first respondent. Thereupon, the first respondent approached the central Administrative tribunal (Madras bench) by way of Original Application No. 731 of 1986 praying for a declaration that the seniority lists issued in the years 1982, 1983 and 1985 in respect of Chargeman Grade I be declared to be illegal and invalid and a further direction to promote him (petitioner in the said Original Application) to the post of Assistant Foreman with effect from 9/7/1984, the date on which the second respondent was promoted to that post. His submission was that inasmuch as there was a breakdown of the quota rule during the relevant years, the rule of rotation cannot be followed and hence the direct recruits appointed later cannot be made senior to him purporting to follow the rule of rotation. He submitted further that the injustice inherent in following the rule of rotation in spite of breakdown in the quota rule has been recognised by the central government which has issued a new set of principles in Office Memorandum dated 7/2/1976. If the principle of the said Office Memorandum is applied to the parties herein, the petitioner in the Original Application (first respondent in this appeal) is entitled to be treated as senior to Respondents 3 to 15 (direct recruits) in the Original Applica
