- (1.) ORDER
(2.) DELAY condoned. Impleadment is allowed. Leave granted. We have heard the counsel on both sides. The admitted facts are that the respondents are promotee Extra Assistant Directors (Class III) in central Water Commission Engineering Class I Service. Rules were made w.e.f. 15/10/1965. The tribunal in the earlier litigation had found that V.P. Misra, Extra Assistant Director was promoted on ad hoc basis on 31/3/1978 and he was required to be confirmed w.e.f. the date on which vacancy was available to him in the quota of 15 promotees. It is not in dispute that vacancy had arisen in the quota of promotees on 3/5/1979 and he was Fitted into that vacancy. While doing so, the appellants had applied the principle of rota and quota and determined inter se seniority of the promotees and the direct recruits. Consequently, the promotees were pushed down in the order of their seniority. That led to the second round of litigation. In the impugned order dated 20/4/1995 made in OA No. 1050 of 1994, the CAT at Delhi had directed the appellants to determine the seniority in the light of the directions issued by this court in civil appeal arising out of Special Leave Petition (Civil) No. 14389 of 1988 on 23/4/1991 and the relevant rules applicable to the candidates. Since it created confusion in the implementation of the order, the appellants have come before us by special leave. The tribunal in paragraph 5 has stated thus: "We find substance in the submission of the learned counsel for the applicants that the intention of the judgment of the Supreme court was to ignore the ad hoc period prior to the occurrence of vacancy. The continuous officiation period was, therefore, to count only from the date a vacancy in the promotees' quota arose. This principle has not been observed while preparing the impugned seniority list, which, therefore, has to be quashed." In ultimate paragraph 7, this was held thus: "In view of the above, the original application is allowed and the impugned seniority list dated 19-1-1994 is hereby quashed. The administration shall redraw the seniority list taking into account the observations made."
(3.) THE question, therefore, is what will be the principle applicable to the respondent and the direct recruits, in appeal arising out of Special Leave Petition (Civil) No. 2293 of 1996. It is not in dispute that as on 3/5/1979 the Rules applicable to the candidates were as under: "5. Promotees.- (i) THE relative seniority of persons promoted to the various grades shall be determined in the order of their selection for such promotion: Provided that where persons promoted initially on temporary basis are confirmed subsequently in an order different from the order of merit indicated at the time of their promotion seniority shall follow the order of confirmation and not the original order of the merit. (ii) where promotions to a grade are made from more than one grade, the eligible persons shall be arranged in a separate list in the order of their relative seniority in their respective grades. THEreafter, the Departmental Promotion Committee shall select persons for promotion from each list up to the prescribed quota and arrange all the candidates selected from different lists in a consolidated order of merit which will determine the seniority of the persons on promotion to the higher grade. Note.- If separate quotas for promotion have not already been prescribed in the relevant recruitment rules, the Ministries/Departments may do so now, in consultation with the Commission wherever necessary. 6. Relative seniority of direct recruits and promotees.- THE relative seniority of direct recruits and of promotees shall be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on the quota of vacancies reserved for direct recruitment and promotion respectively in the Recruitment Rules." 16 A reading thereof would clearly indicate that the seniority of the persons promoted to the various grades shall be determined in the order of the selection for such promotion and the relative seniority of the direct recruits and the promotees shall be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on the quota of various vacancies reserved for direct recruits and promotees respectively in the recruitment rules. THE rules were made in 1959 which would indicate the fixation of the quota-rota as available. THEy read thus: "THEse Rules provided for filling up of 60% of posts in the grade of Assistant Directors by direct recruitment, 25% of posts by promotion and 15% of posts by deputation. THE seniority of Assistant Directors was being fixed as rota-quota system as per provisions of erstwhile Department of Personnel and Administrative Reforms OM No. 19/11/55-RPS dated 22/12/19599. While fixing the seniority of Assistant Directors, the deputationists were not coming to the picture and the vacancies were rotated between the direct recruits and the promotees in the following manner: JUDGEMENT_14_8_1996Html1.htm It is contended by Shri Krishnamani. learned counsel for the respondent promotees that 1982 statutory rules have been made regulating the service conditions of the candidates holding the post under the service at the initial constitution of the service and the existing candidates became members of the service. Rule 8 thereof prescribes the inter se seniority of the candidates. Those who are substantively appointed to the posts would be juniors to those continuing at the initial constitution of the service. So direct recruits are not seniors to the promotees. Consequentially, the direct recruits must be considered to be juniors to the promotees since the direct recruits were admittedly recruited from 1982 onwards after the statutory rules came into force. It is contended by Shri Sitaramiah, learned Senior Counsel for direct recruits and for the Union of India that the contention is not correct. So long as the rota and quota is available, the interpretation should be such that both rota and quota should be allowed to operate in their respective fields; if so operated, the direct recruits, though recruited later, are entitled to be fitted into the vacancy to which they were recruited. Consequentially, they may become seniors in the seniority list though they were appointed later to the promotees who are to be fitted in the very respective quota as and when vacancy arises within the quota. Thus construed, it must be held that the direct recruits would gain seniority over the promotees. 17;