Kapadia, J. - (1.) (for himself and on behalf of V. N. Khare, C.J.I.) (Majority view) :- The civil appeals herein raise a common point of law i.e. fitment of the promotees in the integrated seniority list. The posts of Assistant Traffic Manager (for short "ATM") and Assistant Mechanical Engineer (for short "AME") are Class I Junior Scale Officers posts. It is the case of the appellants that for several years, due to ban on recruitment, promotions were made from lower feeder posts even in excess of the ratio of 1:1 under A.P. State Road Transport Corporation Employees (Recruitment) Regulations, 1966 (hereinafter referred to as "the recruitment regulations). It is the case of the appellants that whenever direct recruitment was not possible within a short period and when administrative exigencies warranted the filling of posts, like the one in the instant case, promotions were made either on ad hoc or on temporary basis and in course of time they were regularised. M. Subba Reddy, appellant herein, was appointed as a Traffic Apprentice on 10-8-1971 in the Corporation. He was promoted temporarily on 31-1-1983 as ATM vide office order dated 10-1-1983 and regularised on 27-12-1986 vide order dated 9-9-1988. He was confirmed on 1-4-1987 as ATM. It is the case of the appellants that while they were senior to direct recruits, who entered the above posts in 1988, 1990 etc., in the impugned integrated seniority list dated 10-11-1994, they have been placed below the direct recruits. The appellants contend that when their promotions were regularised, the direct recruits were not even born on the cadre of ATMs/AMEs, and, therefore, there was no reason for placing them below the direct recruits. Per contra, it is the case of direct recruits that the integrated seniority list is in consonance with the quota rule of 1:1 under the statutory rules mentioned supra.
(2.) Before coming to the arguments advanced on both sides, we notice the relevant provisions of recruitment regulations framed by the Corporation under S. 45 of the Road Transport Corporation Act, 1950. For the purposes of deciding this matter, we quote hereinbelow the relevant provisions of the recruitment regulations :- "3. Appointment and qualifications : 1) Appointment to the posts in the Corporation shall be made- a) by direct recruitment; or b) by promotion; or c) by transfer or deputation of an official already in the service of a Department of the Central or State Government or a State Transport Undertaking. 2) The method of recruitment to each post specified in column 2 of Annexure-A shall be as shown in the corresponding entry in column (3) thereof and the qualifications prescribed for each such post shall be as shown in the corresponding entry in column (4). 3) Notwithstanding anything in Cl. (2) the Corporation may at any time, appoint suitable officers of the State or Central Government or any State Transport Undertaking to any of the posts specified in Annexure-A on Foreign Service terms. 4) Where suitable departmental candidates are not available for promotion to any of the posts specified in Annexure-A where the posts are to be filled by promotion only, such posts may be filled by direct recruitment by selection provided that recruitment to all the higher posts from the lower posts shall be made by way of promotion and resort had to direct recruitment only when suitable and qualified persons are not available for promotions. 17). Temporary appointment : (1) Where it is necessary in administrative interests owing to an emergency which has arisen, to fill immediately a vacancy in a post borne on the cadre of a service and if it is likely that there would be undue delay in making any appointment in accordance with these regulations, the appointing authority may appoint a person temporarily otherwise than in accordance with these regulations, until a person is appointed in accordance with these regulation, provided the post is not one which is reserved to be filled by promotion. (2) No appointment under Cl. (1) shall ordinarily be made of a person who does not possess the qualifications, if any, prescribed for the said post. Every person who does not possess such qualifications and who has been or is appointed under this clause shall be replaced as soon as possible by an approved candidate. (3) Where it is necessary to fill a short vacancy in a post borne on the cadre of a service and the appointment of the person entitled to such appointment under the regulations or orders in force would involve excessive expenditure on travelling allowance or exceptional administrative inconvenience, the appointing authority may appoint any other person who possesses the qualifications, if any, prescribed for the said post. (4) A person appointed under Cl. (1) shall, whether or not he possess the qualification prescribed for appointment to the post to which he is appointed, be replaced as soon as possible by an employee or an approved candidate as the case may be, who is qualified to hold the post under the regulations or orders in force. (5) A person appointed under Cl. (1) or Cl. (3) shall not be entitled by reason only of such appointment to any preferential claim to future appointment to such post or category of posts. (6) Notwithstanding anything in these regulations, if and when a temporary post is created as an addition to the cadre of a service and the holder thereof is required by the Corporation to possess any special qualifications, knowledge or experience, any person who possesses such qualifications, knowledge or experience, and is considered to be the best suited to discharge the duties of such post may, irrespective of other considerations, be appointed to that post by the appointing authority but the person so appointed shall not by reason only of such appointment be regarded as a probationer in such service, class, category nor shall he acquired thereby any preferential right to future appointment to such service, class, category or posts. 18). Date of commencement of probation of persons appointed temporarily : If a person, having been appointed temporarily under Cl. (1), (3) or (6) of Regulation 17 to a post borne on the cadre of any service, or having been appointed to any services otherwise than in accordance with the regulations governing appointment thereto is subsequently appointed to the service in accordance with these regulations, he shall commence his probation from the date of such subsequent appointment or from such earlier date (not being earlier than the date of his first appointment on a temporary basis) as the appointing authority may determine. He shall also be eligible to draw increments in the time scale of pay applicable to him from the date of commencement of his probation but shall not be entitled to arrears of pay unless otherwise ordered by the Corporation. 30). Temporary promotion : (1)(i) Where it is necessary in the administrative interest to fill emergently a vacancy in a post borne on the cadre of a higher category in a service or class by promotion from lower category and if the filling of such vacancy in accordance with these regulations is likely to result in undue delay, the appointing authority may promote a person temporarily otherwise than in accordance with these regulations. (ii) No person who does not possess the qualifications, if any, prescribed for the said service, class, or category shall ordinarily be promoted under sub-clause (i). Every person who has been or is promoted under sub-clause (i) shall be replaced as soon as possible by promoting a person possessing such qualifications. (2) Where it is necessary to fill a short vacancy in a post borne on the cadre of a higher category in a service or a class, by promotion from lower category and the appointment of a person who is eligible for such promotion under these regulations, would involve excessive expenditure on travelling allowance of exceptional administrative inconvenience, the appointing authority may promote any other person possessing the qualifications, if any, prescribed for the post. (3) A person promoted under sub-clause (i) of Cl.(1), whether or not he possesses the qualification prescribed for the service, class or category to which he is promoted shall as soon as possible be replaced by a member of the service who is eligible to hold the post under the regulations or orders in force. (4) A person promoted under Cl. (1) or (2) of Regulation 30 shall not be regarded as a probationer in the higher category or be entitled by reason only of such promotion to any preferential claim to future promotion to such higher category. (5) The appointing authority shall have the power to revert to a lower category or post any person promoted under Cl. (1) or (2) of Regulation 30 at any time without assigning any reason and without notice. (6) If any person referred to in Cl. (4) is subsequently promoted to the higher category in accordance with these regulations, he shall commence his probation in such category from the date of such subsequent promotion or from such earlier date as the appointing authority may in its discretion determine. He shall also be eligible to draw increments in the time scale of pay applicable to him from the date of commencement of his probation but shall not be entitled to arrears of pay unless otherwise ordered. 34. If in any of the following categories a sufficient number of approved candidates who have successfully completed their training is not available for filling posts reserved to be filled by direct recruitment such posts may be filled temporarily by departmental promotion until approved candidates who have successfully completed their training become available to replace the promotees and the reverted person shall subsequently be considered for repromotion against the quota of vacancies reserved for being filled by promotion. (a) Asstt. Mechanical Engineer and Asstt. Works Manager. (b) Asstt. Traffic Manager. (c) Chargeman. (d) Traffic Inspector Grade II and Head Depot Clerk. (e) Artisans. Item 3 of Annexure A (Section B) Class I Jr. Scale Service : "3. Assistant Traffic Manager.- In a unit of four :- 1) The first and third vacancy shall be filled in by appointing of an officer under training, who has successfully completed his training and the second and fourth by promotion of a Chief Inspector. 2) If a suitable candidate is not available in a particular category for filling up a vacancy reserved for that category, the vacancy may be filled in by a suitable candidate from the other categories. 3) If no suitable candidate is available in any of the categories mentioned above, the post may be filled in by direct recruitment by selection. Qualifications : 1) For promotion : The Chief Inspector must have put in not less than 5 years of service as such. For Direct Recruitment : The candidate- a) must hold a degree in Mechanical Engineering from a recognised University or have passed Sections A and B of the Associate Membership Examination of the Institution of Engineers (India) or hold a diploma or a certificate recognised by the Institution of Engineers (India) as exempting him from Sections A and B of their Associate Membership Examination. b) must have had experience for not less then four years as Traffic Executive in large size passenger road transport organization exclusive of the period of training, if any, preference will be given to a candidate who is a graduate member of the Indian Institution of Road Transport or any other recognised Institution of Transport; and c) must not be above 30 years of age as on 1st July of the year in which the recruitment is made."
(3.) We also quote hereinbelow Regulation 3 of Employees Service Regulations, 1964 (hereinafter referred to as "the service regulations") :- "3. Seniority : (a) The "seniority" of a person in service, class, category or grade shall unless he has been reduced to a lower rank as a punishment, be determined by the date of his first appointment to such service, class, category or grade. If any portion of the service of such person does not count towards probation his seniority shall be determined by the date of commencement of his service which counts towards probation. (b) The appointing authority may, at the time of passing an order appointing two or more persons simultaneously to a service fix the order of preference among them; and where such order has been fixed seniority shall be determined in accordance with it. (c) The transfer of a person from one category or grade of a service to another category or grade carrying the same pay or scale of pay shall not be treated as a first appointment to the latter for purposes of seniority and the seniority of a person so transferred shall be determined with reference to the date of his first appointment to the category or grade from which he was transferred. Where any difficulty or doubt arises in applying this regulation, seniority shall be determined by the appointing authority. (d) Where a member of any service, class, category or grade, is reduced to a lower service, class, category or grade, he shall be placed at the top of the latter unless the authority ordering such reduction directs that he shall take rank in such lower service, class, category or grade next below any specified member thereof." ;