DESAI, J. - (1.) THE Judgment of the court was delivered by
(2.) WE are back to square one. The same rigmarole of unending disputes as to inter se seniority between promotees, direct recruits and recruits as per the result of the limited competitive examination with quota-rota as the guiding star for determining inter se seniority are put in the lap of the court. 608 This time the service is the Indian Foreign Service Branch 'B' (Indian Foreign Service 'B' for short). This service was constituted by the memorandum of government of India, Ministry of External Affairs dated 16/07/1956. The service consisted of two cadres; a general cadre and two sub-cadres (1) Stenographer sub-cadre and (2) Cypher sub-cadre forming what is styled as special cadre. The general cadre comprises 6 grades. Various provisions were made in the memorandum for recruitment to various grades. Para V provided for general conditions of eligibility for appointment in the service at the initial constitution. Para VI provided that recruitment to grades I, II and III of the general cadre will be made on the recommendations of the Senior Selection Board of which the Chairman will be the Chairman of the Union public service commission or his nominee. Selection to other grades will be made by the Junior Selection Board in consultation with Union public service commission. Para VIII provided for inter se seniority of persons selected for grades I, II and III of the general cadre. Appendix to the memorandum sets out sanctioned strength of posts in various grades of INDIAN FOREIGN SERVICE 'B' and the scales of pay attached to each grade. Petitioners were selected by the Union public service commission according to the merits obtained at the examination conducted for the purpose in 1955 for appointment to the post of Assistant, and were allocated to the Ministry of External Affairs. After the initial constitution of the service in 1956 petitioners were offered an option whether they would like to Join INDIAN FOREIGN SERVICE 'B' in grade IV at the time of its initial constitution. The memorandum constituting the service provided that future maintenance of the service would be governed by the rules to be promulgated for the purpose by the central government. Accordingly by is notification dated 6/05/1964. the government of India, Ministry of External Affairs in exercise of all the powers conferred by Article 309, promulgated Indian Foreign Service Branch 'B' (Recruitment, Cadre, Seniority and Promotion) Rules, 1964 ('1964 Rules' for short). By the aforementioned rules, grades II and III were integrated and the grade was styled as integrated grade II and III in general cadre.
(3.) PETITIONERS came to be promoted between 1976-1979 from grade IV to integrated grade II and III. The government of India published a seniority list of officers in the integrated grade II and III of the general cadre of INDIAN FOREIGN SERVICE 'B' as on 25/06/1979. PETITIONERS contend that the seniority list is violative of the constitutionally guaranteed equality of opportunity in the matter of public service inasmuch as direct recruits who came into service long after the departmental promotees were regularly promoted to the aforementioned grade have been assigned seniority over the earlier promoted departmental promotees. 609 Before objections taken by the petitioners to the seniority list were dealt with the central government in supersession of seniority list dated 25/06/1979 published another seniority list of the officers in integrated grade II and III of INDIAN FOREIGN SERVICE 'B' as on 30/06/1983. PETITIONERS contend that the seniority list dated 30/06/1983 suffers from the same vice and is all the more objectionable inasmuch, as it leaves blank spaces for future recruits either as direct recruits or by limited departmental examination and who are yet to come into service to be placed over promotees like the petitioners who have already been in service for a long time. The petitioners contend that the impugned seniority list appears to have been drawn up on the principle of quota-rota and that in the facts of this case and the relevant rules it is violative of Articles 14 and 16 of the Constitution. PETITIONERS also assert that if Rule 25 ( 1) (ii) is not construed harmoniously with Rule 21 of the 1964 Rules, Rule 25 (1) (ii) would be violative of the guarantee of equality enshrined in Article 16. To be precise, the contention is that where there is recruitment to a cadre from more than one source and the recruitment has to conform to the quota prescribed for each source, simultaneously inter-linking the inter se seniority in respect of recruits entering service from different sources to the quota for each source, if the quota reserved for any source is not filled in for a long time and the vacancies allotted to the source are carried forward and the later day recruits from that source are given deemed seniority over the earlier recruits from the other sources, it has the pernicious tendency to give an undeserved advantage to a later recruit over the earlier recruit and it would be violative of Articles 14 and 16. Kit is held that Rule 25 (1) (ii) has precedence over Rule 21, then Rule 25(1) (ii) is unconstitutional inasmuch as failure to recruit enough number of persons to the extent of the quota reserved for the source in a reasonable time, in the absence of any power to carry forward vacancies available to that source, the rota rule of seniority would be discriminatory in character and lead to denial of equality in the matter of appointment to public service. It was submitted in such a situation the rota rule would break down under the weight of massive departure from the quota rule, and the seniority rule being inextricably intertwined with the quota rule if given effect to would be unjust, unfair and iniquitous and would be violative of Article 14. The Under-Secretary in the Ministry of External Affairs filed an affidavit-in-opposition. Averment in Para II of the petition that petitioners were working as permanent S. Officers, in the integrated grade II and III in the general cadre of the INDIAN FOREIGN SERVICE 'B' was not controverted. After referring to Rule 13 of the 1964 Rules, it was stated that both the impugned seniority lists were drawn up in accordance with the principles governing seniority in the grade as per Rule 25. It 610 was stated that where recruitment to a service or cadre is from mere than one source and each source is assigned a quota of vacancies, in order to do justice to recruits from all sources, the seniority is to be determined according to rota keeping in view the available vacancies to each source. It was conceded that in integrated grade II and III, the recruitment is done from three different channels and quotas have been fixed for all these channels, but the recruitment is not done at the same time. While the departmental promotion is made after departmental promotion committee makes recommendations, the recruitment through examination is time-consuming because there is a time gap between publication of results and joining of candidates. It was further stated that it is not practically possible to strictly adhere to the quota in any particular year because candidates nominated by the Union public service commission may even decline to join service and additional candidates can be taken from subsequent examinations only. It was further submitted that the administration overcomes this difficulty by adhering to the quota by rotation of vacancies ensuring that over a period of time, the quota requirement is fully met. The two impugned seniority lists were sought to be sustained on the footing that by and large quota was adhered to and a slight delay or variation in time schedule would not permit an inference that as the quota rule was not adhered to, the rota rule of seniority cannot be given effect. Replying to the averments made in the petition that vacancies allotted to each source and not filled in at the relevant time were being carried forward for years and that when the carried forward vacancies were filled, the recruits were given retrospective deemed date for seniority relatable to the coming into existence of the vacancy for that source without such a provision being found in the relevant rules, it was stated that vacancies have been carried forward, if at all because of the non-availability of the candidates and in the absence of a stipulation in the relevant rules permitting diversion of vacancies from one quota to another, it was inevitable that the quota of vacancies allotted to a source have to be carried forward. Replying to the averments that in the impugned seniority list blank spaces have been left open for giving seniority to persons who have still not joined the service and are likely to join at some uncertain date, it was submitted that this process would not push down the seniority of the petitioners as they would occupy the same serial number in the seniority list.;