RADHA MOHAN MALAKAR & ORS. v. USHA RANJAN BHATTACHARJEE & ORS

Citation: [2009] 10 S.C.R. 454

Court: Supreme Court of India

Bench: R.V. RAVEENDRAN, MARKANDEY KATJU

Case summary

RADHA MOHAN MALAKAR & ORS. v. USHA RANJAN BHATTACHARJEE & ORS.pdf

Judgment text

[2009) 10 S. C. R. 454 RADHA MOHAN MALAKAR & ORS. v. USHA RANJAN BHATTACHARJEE & ORS. (Civil Appeal No. 4157 of 2009) JULY 7. 2'109 [R. V. RAVEENDRAN AND MARKANDEY KATJU, JJ. ) Service Law - Seniority- lnter-se seniority between direct recruits and promotees - By Office Memorandum Promotees of 1989 batch placed en-bloc senior to direct recruits of 1990 batch cind promotees of 1991 batch placed enbloc junior to the direct recruits of 1990 batch - Promotees of 1991 batch claiming seniority over some of the direct recruits - Single Judge of High Court negated the claim - Division Bench of High court accepted the claim, holding that the Office Memorandum was contrary to r.

28(iii) of Civil Services Rules - On appeal, held: Direct recruits have to be treated senior to the promotees of 1991 batch - The quota of direct recruits has not been exceeded, their seniority have to be taken from the date of their initial appointment and their seniority cannot be pushed down - The Office Memorandum is not contrary to r. 28 (iii) - Tripura Civil Services Rules, 1967 - r. 28 (iii). A Notification dated 25. 5. 1981, issued by the State Government, enunciating the principles governing interse seniority between direct recruits and promotees, was challenged by promotees. The High Court quashed the Notification and the same attained finality. State Government by Memorandum dated 25. 7.

1997 issued a draft seniority list in terms of decision of the High Court, comprising the seniority list for batches of 1989 (promotees), 1990 {direct recruits) and 1991 (promotees), placing the promotees, irrespective of their individual date of recruitment, to their respective slots in the gradation list on the basis of quota Rota Rules. Thereafter RANJAN BHATTACHARJEE ~ "" Government Order dated 25. 5. 2000 . governing the general principles of relative seniority, clarifying that persons recruited in excess of the quota, shall not get rotational seniority in the same calender year and shall be reverted to the year where they could be accommodated. The seniority list of existing officers in batches of 1989 (promotees) 1990 (direct recruits against substantive vacancies in the cadre of 1987188) and 1991 t. (promotees) was published by Office Memorandum dated 9. 6. 2000.

Thereby all 1989 promotees were placed en-bloc senior over 1990 direct recruits and all 1990 direct recruits were placed en-bloc senior over 1991 promotees. Promotees of 1991 batch filed writ petition challenging the Government Order dated 25. 5. 2000 and the Seniority List dated 9. 6. 2000. They contended that seniority should have been considered between promotees of 1989 and 1991 batch on one hand and direct recruits on the other hand. Single Judge of High Court dismissed the petition. Division Bench of High Court, in intra-court appeal, held the Government Order and the Seniority List, contrary to the provisions of s. 28(iii) of Tripura Civil Services Rules, 1967. Hence the present appeal by some of the direct recruits of 1990 batch. Allowing the appeal, the Court HELD: The Government's order dated 25. 5. 2000 and Office Memorandum dated 9. 6. 2000 are valid and are in accordance with the Tripura Civil Service Rules, 1967.

The ordinary rule that seniority will depend on the length ofthe continuous officiating service has to be followed ""' v unless the quota of direct recruits or of the promotees has been exceeded. It is only if the said quota is exceeded that the appointees have to be pushed down in the seniority, otherwise seniority has to be taken from the date of continuous officiating service. In the present case it is admitted that the quota of direct recruits has not been exceeded. Hence, the seniority of direct recruits (appellant) has to be taken from the date of their initial appointment and they cannot be pushed down in seniority. The promotees (respondents) were appointed to the Grade II of Tripura Civil Services, after the appointments of the direct recruits (appellants). Hence the former have to be treated as junior to the latter.

Since the quota of direct recruits has not been exceeded, hence the seniority has to be calculated from the date of the initial appointment and the said seniority cannot be pushed down. [Para Nos. 29, 31 and 33) [468·F-H:469-C; 469-F] ' N. K. Chauhan and Ors. vs. State of Gujarat and Ors. 1977 (1) SCC308; B. S. Mathur and Anr. vs. Union of India and Ors. 2008 (10) sec 271, relied on. • . Mervyn Coutindo vs. Collector of Customs AIR 1967 SC 52; S. G. Jaisinghani vs. Union of India AIR 1967 SC 1427; V. B. Badami vs. State of Mysore 1967 (2) SCC 901; 0. P. Sing/a and Anr. vs. Union of India and Ors. 1984 (4) SCC 450; Rudra Kumar Sain and Ors. vs. Union of India and Ors. 2008 (8) sec 25, referred to. Case Law Reference: • 1977 (1) sec 308 Relied on. Para 27 AIR 1967 SC 52 Referred to. Para 28 AIR 1967 SC 1427 Referred to. Para 28 1967 (2) sec 901 Referred to. Para 28 2008 (10) sec 211 Relied on. Para 32 y .. 1984 (4) sec 450 Referred to. Para 32 2008 (8) sec 25 Referred to.

Para 32 RANJAN BHATTACHARJEE ~ CIVIL AP PELLATE JURISDICTION : Civil Appeal No 4157 of 2009. From the Judgment & Order dated 5. 4. 2006 of the High Court of Gauhati in Writ Appeal No. 166 of 2004 and order dated 18. 9. 2006 in Civil Misc. Application No. 84 of 2006. Krishnan Venugop"al, Rakesh Dwivedi, Dharmendra Kumar Sinha, Siddhartha, Abir Phukan, Ranjan Mukherjee, ~ Gopal Singh, Manish Kumar, Ritu Raj Biswas, Rahul Dua and Ankit Dalela for the appearing parties.. The Judgment of the Court was delivered by MARK. ANDEY KATJU, J. 1. Leave granted. 2. This appeal by special leave has been liled against the final judgment and order dated 5. 4. 2006 passed by the High Court of Gauhati in Writ Appeal No. 166 of 2004. 3. Heard learned counsel for the parties and perused the record. ' 4.

The dispute in this case is about relative seniority between the direct recruits of 1990 and promotees of 1991 to the Grade -II of the Tripura Civil Service which has been ~ constituted under the Tripura Civil Service Rules 1967. The appellants in this case are direct recruits and the respondents are promotees. 5. The promotees filed a writ petition before the learned Single Judge of the Gauhati High Court which was dismissed on 23. 4. 2004, but against that judgment a writ appeal was filed \ by the promotees which was allowed by the impugned _.. judgment dated 5. 4. 2006 of the Division Bench of the High i Court. Hence this appeal by the direct recruits. 6. The fixation of the in'ter se seniority of the members of the Tripura Civil Service (in short, 'the TCS') is governed by Rule 28 of the Tripura Civil Service Rule, 1967 (in short, 'the TCS Rules').

Sub-rule (iii) of Rules 28, which had been the subject of repeated controversy, read as under: "The relative seniority of direct recruits and of promotees shall be determined according to the rotation 8 of vacancies between direct recrujts and promotees which . shall be based on the quotas of vacancies reserved for direct recruitment and promotion under rules 5" 7. The Government of Tripura had earlier issued a notification, dated 25. 5. 1981 enunciating the principles governing the inter se seniority between the direct recruits and promotees purportedly consistent with Rule 28(iii). The notification dated 25. 5. 1981, aforementioned, is reproduced herein below:- "Government have observed that certain difficulties have arisen in the implementation of the general principles of determining seniority of various categories of persons employed under the Tripura Government, as incorporated in Tripura Administration's order No. F1 . (16)-GA/59 dated 12. 7. 1960. 2.

It is clarified that the rotation and the fixation of relative seniority of direct recruits and regular promotees shall be done taking into account only such officers as are appointed from either source to the same grade and the same cadre within any single calendar year. 3. Any final seniority list already notified by the Government shall not be liable to revision merely because of the issue of the present order. ( By order & in the name of the Governor Sd/- S. R. Sankaran Chief Secretary to the Government of Tripura". RANJAN BHATTACHARJEE [MARKANDEY KATJU, J. ] ~ 8. The notification dated 25. 5. 1981, aforementioned, came to be challenged in Civil Rule No. 204/81 by the promotees of Grade-II of the TCS, who had formed an association under the name and style of the Association of Civil Service Officers, Tripura, Agartala. By judgment and order dated 29. 7. 1992, a Division Bench of the High Court allowed the Civil Rule and quashed the impugned notification dated 25. 5.

1981, aforementioned. l I 9. While quashing the said notification dated 25. 5. 1981, '-the Division Bench observed and held inter alia, as follows: "" "It is well settled in a catena of decisions by the Hon'ble Supreme Court that when there are two sources of recruitments to a service with a fixed quota, the quota rule has to be followed and there should not be any . -- 3. The Hon'ble Gauhati High Court in CR 204of1981 quashed the aforesaid order on the ground that it confined rotation and fixation of relative seniority, even if in a calendar year recruitment from one source is made in excess of the quota. Accordingly, a formal order was issued vide No. F. 23 (47)-GA /81 dated 8. 7. 1993 for not giving effect to the former order. I ~' • 4. However, the difficulties as aforesaid, persist and to over come the same it is clarified again, in modified form in the light of the decision of the Hon'ble High Court, that the rotation and fixation of - RANJAN BHATTACHARJEE [MARKANDEY KATJU, J.

] >I • relative seniority of direct recruits and the promotees shall be done taking into account only such officers as are appointed from either source to the same grade and the same cadre within any single calendar year if the recruitment are made within the respective quota. Persons recruited in excess of the quota from any source shall not get rotational seniority in the s~me calendar year but shall be reverted to the year where they can be accommodated in the respective quota of that year. 5. Any final seniority list already notified by the Govt. shall not be liable to revision merely because of the issue of the present order. By order of the Governor (S. K. Roy) Secreta;j to the Govt. of Tripura 23. The seniority list of existing officers in Grade II batches of 1989 (promotees), 1990 (direct recruits), and 1991 (promotees) in the Tripura Civil Services was published by the ' Government vide office memorandum dated 9. 6. 2000.

\ 24: It was submitted by the respondents-promotees before ~ ~ us that in the seniority list as per Notification dated 9. 6. 2000, , all the 1989 batch promotees (25 in number) were placed en- .... ,. bloc senior over 1990 direct recruits. The 1990 direct recruits were placed en-bloc senior over 1991 promotees batch. It was submitted that this was in violation of the judgment of the Division Bench of the High Court dated 29. 7. 1992. True copies of the office memorandum and final seniority list dated 9. 6. 2000 is produced as Annexure P-5 to the appeal. ..... ) 25. The learned Single Judge before whom the writ petition was filed held that the principle of determination of the seniority contained in the memorandum dated 25. 5. 2000 does not contravene Rule 28 (iii) of the Rules. However, the Division Bench of the High Court has reversed the said judgment and - [2009] 10 S. C. R. hence this appeal. 26. In our opinion this appeal deserves to be allowed. ... : 27.

In this connection reference may be made to the three Judge Bench of this Court in N. K. Chauhan and Ors. vs. State of Gujarat and ors. 1977 (1) sec 308. In paragraphs 32 and 33 of the aforementioned decision this Court has observed:- "32. We therefore reach the following conclusions: r 1. The promotions of mamlatdars made by Government between 1960 and· 1962 are saved by the ·as far as practicable' proviso and therefore valid. Here it falls to be noticed that in 1966 regular rules have been framed for promotees and direct recruits flowing into the pool of Deputy Collectors on the same quota basis but with a basic difference. The saving provision as far as practicable' has been deleted in the 1966 rules. The consequence bears upon seniority even if the year is treated as the unit for quota adjustment. 2.

If any promotions have been made in excess of the quota set apart for the mamlatdars after rules in 1966 were made, the direct recruits have a legitimate right to claim that the appointees in excess of the allocable ratio from among mamlatdars will have to be pushed down to later years when their promotions can be regularised by being absorbed in their lawful quota for those years. To simplify, by illustration, if 10 deputy collectors' substantive vacancies exist in 1967 but 8 promotees were appointed and two direct recruits alone were secured, there is a clear transgression of the 50 : 50 rule. The redundancy of 3 hands from among promotees cannot claim to be regularly ( .... appointed on a permanent basis. For the time being they occupy the posts and the only official grade that can be extended to them is to absorb them in the subsequent vacancies allocable to promotees. This will have to be RAN,! AN BHATIACHARJr=E [MARKANDEY KATJU, J.

] worked out down the line wherever there has been "' excessive representation of promotees in the annual ihtake. Shri Parekh, counsel for the appellants has fairly conceded this position. 3. The quota rule does not, inevitably, invoke the application of the rota rule. The impact of this position is that if sufficient number of direct recruits have not been t forthcoming in the years since 1960 to fill in the ratio due to them and those deficient vacancies have been filled up by promotees, later direct recruits cannot claim 'deemed' dates of appointment for seniority in service with effect from the time, according to the rota or turn, the direct recruits' vacancy arose. Seniority will depend on the length of cohtihuous officiating service and cannot be upset by ·later arrivals from the open market save to the extent to .. which any excess promotees may have to be pushed down as indicated earlier. 33.

These formulations based on the commonsense understanding of the resolution of 1959 have to be tested in the light of decided cases. After all, we live in a judicial system where earlier curial wisdom, unless competently overruled, binds the Court. The decisions cited before us start with the leading case in Mervyn Coutindo vs. ,. ,. Collector of Customs AIR 1967 SC 52, and closes with the last pronouncement in V. B. Badami vs. State of Mysore 1976(2) SCC 901. This timespan has seen dicta go zigzag but we see no difficulty in tracing a common thread of reasoning. However, there are divergencies in the ratiocination between Mervyn Coutindo and Govind Dattatray Kelkar vs. Chief Controller of Imports and . -4 Exports AIR 1967 SC 839 on the one hand and S. G. " Jaisinghani vs. Union of India AIR 1967 SC 1427, Bishan - Sarup Gupta vs. Union of India 1973(3) SCC 1, Union of India vs. Bishan Sarup Gupta 1975(3) SCC 116 and A. K. Subraman vs. Union of India 1975(1) SCC 319 on . :..

'"I the other, especially on the rota system and the year being w regarded as a unit, that this Court may one day have to harmonize the discordance unless Government wakes up to the need for properly drafting its service rules so as to eliminate litigative waste of its servants' energies. " (emphasis supplied) 28. The aforesaid decision has considered the earlier decisions of this Court including the Constitution Bench decision in Mervyn Coutindo vs. Collector of Customs AIR 1967 SC 52, S. G. Jaisinghani vs. Union of India AIR 1967 SC 1427, V. B. Badami vs. State of Mysore, 1967 (2) SCC 901, etc. - 29. In our opinion the principle of the decision in N. K. Chauhan's case (supra) can be illustrated by taking a • hypothetical example.

Suppose in a particular service 50% of the vacancies are to be filled in by promotion and 50% by direct recruitment, and suppose there is a rule that the inter se seniority of direct recruits and promotees is to be fixed according to the rotation of vacancies between direct recruits and promotees in the manner that the first post will go to a promotee, the second to a direct recruit, the third to a promotee, the fourth to a direct recruit, and so on. Even here the ordinary rule that seniority will depend on the length of the continuous ... , officiating service has to be followed unless the quota of direct recruits or of the promotees has been exceeded. It is only if the said quota is exceeded that the appointees have to be pushed down in the seniority, otherwise seniority has to be taken from the date of continuous officiating service. In the present case it is admitted that the quota of direct recruits has not been exceeded.

Hence, in our opinion, the seniority of direct ,_ recruits (appellant) has to be taken from the date of their initial • .. appointment and they cannot be pushed down in seniority. The promotees (respondents herein) were appointed to the Grade II of TCS after the appointments of the direct recruits (appellants). Hence the former have to be treated as junior to RAbHA MOHAN MALAKAR & ORS. v. USHA RANJAN 469 BHATTACHARJEE [MARKANDEY KATJU, J. ] the latter. The earlier Division Bench decision of the High Court • dated 29. 7. 1992 has to be understood in the light of the .. decision of this Court in N. K. Chauhan's case (supra) . 30. The result of the impugned judgment of the Division Bench will be that the 1990 direct recruits who were recruited against vacancies created before 1988 will be pushed below the 1991 promotees in seniority. In our opinion such a view is clearly erroneous in law. 31. In our opinion the Government's order dated 25. 5. 2000 and office memorandum dated 9. 6.

2000 are valid and are in accordance with the Tripura Civil Service Rules, and the view of the Division Bench is not correct. ... ' 32. In B. S. Mathur and another vs. Union of India and Others, 2008 (10) SCC 271 it was observed that ordinarily inter ..... se st! niority is to be determined on the basis of continuous length of service. The Court in the aforementioned decision has referred to the earlier decision in O. P. Sing/a and Another vs. i ~ Union of India and Others, 1984 (4) SCC 450 and Rudra Kumar Sain and Others. Vs Union of India and Others, 2008 (8) sec 25. ... 33. Since the quota of direct recruits has not been exceeded hence in our opinion the seniority has to be calculated ' from the date of the initial appointment and the said seniority ·cannot be pushGd down. 34. For the reasons given above this appeal. is allowed, the impugned judgment of the Division Bench is set aside and judgment of the learned Single Judge is upheld. No orders as \ to costs. ' ) K. K. T.

- Appeal allowed. ~""