WRIT PETITION 7370/2010

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 31.07.2014Pronounced on: 17.11.2014

+W.P.(C) 7370/2010, C.M. NOS.6770/2014, 8140/2014,8169/2014

UNION OF INDIA AND ANR.

..... Petitioners

Through: Sh. Sanjay Jain, ASG with Sh.Jasmeet Singh, Sh. Ruchir Mishra and Sh.Mukesh Kumar Tiwari, Advocates, for UOI.

Versus

SUDHANSHU KUMAR KHARE AND ORS.

..... RespondentsThrough: Respondent No.1 in person.Sh. Sidharth Luthra, Sr. Advocate with Ms.SupriyaJunejaandSh.VirajGandhi,Advocates, for Resp. Nos.5 and 7.

Sh. G.D. Gupta, Sr. Advocate with Sh. PiyushSharma, Advocates, for Resp. No.4.

Sh. Naresh Kaushik, Advocate, for Resp.No.8/UPSC.

Sh. Darpan Wadhwa, Sh. Arun Khatri and Ms.Roshni Namboodiry, Advocates, for Sh. D.S.Shukla/Applicant.

Sh. Tarun Sharma with Ms. Boudh Prabha,Advocates, for Resp. Nos. 14, 33, 41, 47, 73and 84.

+W.P.(C) 7371/2010, C.M. NO.6771/2014BHUPINDER KUMAR AND ORS.

..... Petitioners

Through: Sh. Tarun Sharma and Ms. BoudhPrabha, Advocates.

Versus

UNION OF INDIA AND ORS.

..... Respondents

Through: Sh. Sanjay Jain, ASG with Sh.Vikram Jetly, Sh. Ruchir Mishra and Sh.Mukesh Kumar Tiwari, Advocates, for UOI.

Sh. Naresh Kaushik, Advocate, for UPSC.Sh. G.D. Gupta, Sr. Advocate with Sh. PiyushSharma, Advocates, for Resp. No.7.Sh. Sidharth Luthra, Sr. Advocate with Ms.SupriyaJunejaandSh.VirajGandhi,Advocates, for Resp. Nos. 8 and 10.Respondent No.4 in person.

Sh. Darpan Wadhwa, Sh. Arun Khatri and Ms.Roshni Namboodiry, Advocates, for Sh. D.S.Shukla/applicant.

CORAM:HON'BLE MR. JUSTICE S. RAVINDRA BHATHON'BLE MR. JUSTICE VIPIN SANGHI

MR. JUSTICE S. RAVINDRA BHAT

1.In these writ proceedings, the common grievance of thepetitioners (the "UOI", (referred to as such), in W.P.(C)7370/2010 and the promotees (referred to as such), in W.P.(C)7371/2010) is with regard to the order of the Principal Bench ofthe Central Administrative Tribunal (hereafter referred to as "theCAT") passed in O.A. No. 1281/2000, on 1.7.2010 . Therespondents in these proceedings were applicants before theCAT. They are hereafter referred to as "the direct recruits".

2.The controversy is with regard to the inter se seniority ofpromoteesanddirectrecruitsintheCentralBureauofInvestigation(CBI),establishedundertheSpecialPoliceEstablishment Act, 1952 ("the Act") in the cadre of DeputySuperintendent of Police (DSP). The Special Police (ExecutiveStaff) Recruitment Rules, 1963 (hereafter referred to as "the 1963Rules") were framed for appointment to various posts in the CBI,

witheffectfrom02.03.1963.Rule3providedfortheclassification, scale of pay, qualifications and other mattersrelating to the posts, in accordance with the provisions containedin the Schedule. The relevant entry pertaining to the DSPsprovided for 22 posts, classified them as "Non-MinisterialGazetted" and stated that the method of recruitment was:

(a) not exceeding 15% of the sanctioned strength from promotionfrom Dy. SP with at least 8 years service in the grade;

(b)The remaining 85% by transfer or deputation from amongstsuitable officers of state police force.

3.This position continued; by an amendment with effect from27.12.1972, change was brought about in the manner ofrecruitment.Thequotaprovidedforrecruitmentthroughpromotion was increased from maximum of 15% to 30%; thetransfer/deputation quota was reduced to 50%. In either category,if the quota could not be filled, direct recruitment would beresorted to; independently, 20% direct recruit quota "inconsultation with the UPSC" was provided for. The relevantextracts of the amendments are as follows:

"The Gazette of India: January 6, 1973, PAUSA-1,1894

New Delhi, the 27th December, 1972

G.S.R.2--In exercise of the powers conferred by theproviso to Article 309 of the Constitution, thePresident hereby makes the following rules furthertoamendtheSpecialPoliceEstablishment(Executive Staff) Recruitment Rules, 1963, namely:-

1.(1) These rules may be called the SpecialPolice Establishment (ExecutiveStaff)(Amendment) Rules, 1972.

(2) They shall come into force on the date oftheir publication in the Official Gazette.

2.IntheScheduletotheSpecialPoliceEstablishment (Executive Staff) RecruitmentRules,1963,fortheexistingentriesinColumns 10 and 11 relating to the post ofDeputySuperintendentofPolice,thefollowing shall respectively be substituted,namely:-

Column 10:

"(a) Promotion - 30 percent failing which bytransferondeputationfailingbothbydirectrecruitment.

(b) Transfer/deputation - 50 percent failing whichby direct recruitment.(c) Direct recruitment - 20 percent in consultationwith the Union Public Service Commission."

Column 11:

"Promotion:

Inspector of Police in the Central Bureau ofInvestigation with 5 years service in the graderendered after appointment thereto on regularbasis.

Transfer/deputation:

Suitable officers of the State or Central GovernmentDepartment who are holding equivalent posts orwho, though holding posts in the next lower grade,are officers approved for promotion to equivalentposts.

Deputation:

Deputationist Inspector in the Central Bureauof Investigation who have put in at least 5 yearsservice in the rank in the State/Central Bureau ofInvestigation out of which at least 3 years is in theCentral Bureau of Investigation.

(Period of deputation - ordinarily not exceeding 5years)."

4.On31.03.1987,theruleswereamendedyetagain(hereafterreferredtoas"the1987amendment").Theseamendments stipulated that the number of posts were 157; andthat the DSP post was to be "General Central Services Group-BGazetted Non-ministerial" one and that it was "Selection Post".Columns 10 and 11 provided for the method of recruitment andthe grades from which promotion/deputation are to be made.Here, the pre-existing quota for promotions and transfer bydeputation were maintained. The rule, while spelling out thequota (of 20%) for direct recruitment, provided that suchappointment would be through the Civil Services Examinationconducted by the UPSC. The relevant extracts of Columns 10 and11 read as follows:

5.With effect from 31.03.1997, fresh set of rules, titled"Central Bureau of Investigation Senior Police Posts RecruitmentRules, 1996 (hereafter referred to as "the 1996 Rules") werebrought into force; they replaced the 1963 Rules. Column 11provided the relative method of entry into the post of DSP whichreads as follows:

50% promotion failing which by transfer on deputation.30% transfer on deputation/transfer20% direct recruitment

Note 1-Above percentage shall apply to posts and not tovacancies.Note2-TheregularincumbentsofthepostofDeputySuperintendent of Police in the scale of pay of Rs.2000-3500 in(Rs.650-1200 pre-revised) (Gr.B. Gazetted) on the date ofnotification of the revised rules, will be deemed to have beenappointed to the post of Deputy Superintendent of Police in thescale of pay of Rs.2200-4000 (Group Gazetted) at initialConstitution.

6.On 06.08.1999, the CBI published Seniority List of DSPsas on 01.01.1999; the list contained 193 names of incumbentsholding the post as on date. The direct recruits/respondents inthese proceedings filed O.A. No.1281/2000 before the CAT,claiming the quashing of the Seniority List. direction to preparea fresh seniority list of DSPs, placing the promotees from Sl.Nos. 89 to 175 in the said impugned list, below the direct recruits,

and preparation of year-wise roster in the ratio of 2:3 till 1997and 2:5 after 1997, with consequential direction to hold areview DPC to grant promotion to the direct recruits, was sought.It was contended that the CBI was bound to follow the OfficeMemorandum dated 22.12.1959, governing the determination ofseniority - in terms of which (para No.2.4.4) the promotees wereto be treated as regular only to the extent of direct recruitmentvacancies that were reported, (in situation of under-reporting orsuppression of vacancies for direct recruitment), and that excesspromotions would be treated as ad-hoc appointees. It wascontended by the direct recruits that the CBI violated its rules aswell as the instructions of the Government. The applicants alsoalleged that the CBI had sought for diversion of 11 vacanciesfrom direct recruitment quota. The application further stated thatout of 170 promotee Group-B DSPs, only 86 promotees wereregular, holding that post within the 30% quota and could beupgraded as DSP Group-A as on 31.01.1997, and that the balanceDSPs were promotees without any vested legal right. The UOIobjected to the proceedings before the CAT, stating that thepromotees are likely to be affected. It is contended that theSeniority List of DSPs disclosed that large number ofincumbents had been promoted on regular basis which wouldresult in unsettling duly settled matter. The UOI stated that priorto 1988, there was no direct recruitment of DSPs and that theUPSC used to sponsor candidates on request of the CBI from theleft-over IPS officers. Furthermore, the UOIs stand was thatduring the period 1983 to 1985, out of 51 vacancies, 27 were

utilized by the promotees in accordance with relaxationcommunicated by the UPSC to CBI on 27.04.1984. Similarapproval for relaxation of rules to divert vacancies in the directrecruitment quota for promotion was given on 16.02.1988,29.08.1990 and 09.11.1993. It was submitted that these eventsshowed that there was, in fact, no violation of the Rules resultingin promotees exceeding the quota allocated to them. The UOIalso stated that - of the 50 posts of DSP filled during the period1988-90, the substantial part of the direct recruitment quota wasfilled through promotion on account of non-availability of thedirect recruits. Over that, though the UPSC sponsored the numberof candidates to join as direct recruits, at the same time, largenumber of candidates did not join; resultantly, the CBI wascompelled to fill the vacancies from available promotees afterdue approval of DOPT and the UPSC.

7.On 28.01.2002, the CAT, by its initial order, dismissed thedirect recruits' application as unmerited. They accordinglyapproachedthisCourtbyfilingW.P.(C)1823/2002.On27.05.2009, this Court remitted the matter for fresh considerationafter noticing that the promotees likely to be affected had notbeen impleaded and that the CAT, in its earlier order of28.01.2002, did not consider the direct recruits' contention thatthe 1987 Rules did not empower the CBI to relax its provisionsand divert the vacancies. It was in these circumstances that thematter was taken-up for consideration.

8.The CAT, by its impugned order, dealt firstly with theissue of power to relax. The UOI contended that even thoughexpress powers to relax the rules did not exist in the 1987 Rules,such power could be inferred by virtue of Section 21 of theGeneral Clauses Act. Although the CAT did not expressly stateso, it rejected the Union's contention with respect to its power torelax, holding that there was no such power under the 1987Rules. It was also noticed that the power to relax was included forthe first time in 1996 Rules. The CAT also agreed with thecontention that only promotees upto Sr. No.87 could be said tohave been recast in Group-A as result of the notification of the1996 Rules, and that promotee incumbents shown after thatposition ought to have been treated as ad-hoc appointees inexcess of their quota. The CAT rejected the contention of break-down of quota. Its operative directions in the impugned orderreads as follows:

"15.On the basis of above consideration, the OAsucceeds. The impugned seniority list of Dy. SPs ason 1.01.1999 is set aside to the extent that theApplicants have been placed below the promoteeDy.SPs from serial number 89 to 175 in theaforesaid seniority list. The official Respondentswould take steps to reconstitute the seniority list byfollowing the prescribed roster in the Rules of 1987and Rules of 1996. The aforesaid exercise would becompleted within period of four months from thereceipt of certified copy of this order. TheApplicants would be eligible for all consequentialbenefitsoccuringfromtheamendmentoftheaforesaid seniority list of Dy. SPs as on 1.01.1999.There will be no order as to costs."

Contention of UOI and the Promotees

9.It is submitted by the petitioners (i.e. the UOI and thepromotees) that the CAT erred in holding that promotions weremade in excess of the quota, in the circumstances of this case. Itwas submitted that between 1987 and 1996, the DOPT sanctioned122 posts of DSPs to cater to national exigencies, to meet urgentrequirements of handling important and sensitive investigationssuch as assassination of Shri Rajiv Gandhi, Babri Masjiddemolition etc. The UOI states that,

"….the CBI could not afford to resort to the process ofdirect recruitment through the UPSC as that was avery time consuming process. Moreover, the responsewas uncertain and even if people were appointed theydidnothavetheexperiencetohandlesuchinvestigations as against available Inspectors in thepromotee quota who had experience in investigations.Therefore, resort to direct recruitment would havedefeated the very purpose of creating these posts to setup Special Investigating Cell to investigate cases asmentioned above. In fact, 24 posts of DSPs wascreated on 18.12.1992 for investigation into the case ofBabri Masjid at Ayodhya and 65 posts were created tolook into the assassination of late Prime Minister Sh.Rajiv Gandhi. Likewise, there were other seriousscams like Animal Husbandry Scam in Bihar for which3 posts were created."

10.It was argued by the petitioners that the CAT was undulyswayed by the direct recruits' submissions with regard tounderreporting of their vacancies, to the UPSC. It was arguedfirstly that as matter of fact, this finding is untenable because 24vacancies had been notified during the period 1990-95; the CAT

itself noted in para 9 of its order - that for the period 1989-1995,as against 58 candidates sponsored by UPSC in the direct recruitquota, only 41 had joined (of them 25 between the period 1996-98) and 17 did not join. Consequently, the finding of suppressionor under-reporting was factually untenable.

11.It was submitted that the CAT's reliance on para 2.4.4 ofthe Office Memorandum dated 03.07.1986 was misconceived. Allthe facts and circumstances pointed to the application of para2.4.2 which stated that in case the direct recruits are not availablein any particular year, representation of quota to determineseniority would be only to the extent of available direct recruitsand promotees. Stating that para 2.4.2 elaborately provided forthe method of determining inter se seniority in the eventuality ofone or the other category of recruits being unavailable, the CATshould not have proceeded to reject the petitioner's contentions.

12.It was next argued that the direct recruits could not havequestioned the four orders diverting the vacancies for filling upby the promotees. It was submitted that besides the fact that whenthe actual diversion of the posts to be filled-up by promotionoccurred, none of the applicant/direct recruits were in the cadre,they entered it subsequently after 1995. The last of the orders ondiversion was made in 1993, recognizing the concurrent realitiesand having regard to the prevailing urgency to staff the newlycreated vacancies as well as those which had arisen previously.The procedure adopted for filling-up those vacancies throughpromotion was transparent; The DOPT's approval was sought and

granted after which the UPSC cleared the proposal. It was onlythereafter that eligible Inspectors who were already working inthe CBI for 8 years or more were promoted in accordance withthe provisions of the rules by selection. Their entry into the cadreof DSPs, therefore, could not have been characterized as irregularor contrary to the rules. The direct recruit applicants did not evenquestion the four relaxations/diversion orders - they could nothave done so, since they were appointed to the grade after 1995.In the circumstances, the CAT's findings with regard to thelegality of such orders was uncalled for. Learned counsel alsosubmitted that the CAT's order with regard to the lack of powerof the UOI or the CBI to relax the provisions of the 1987 Rules -for lack of express power in that regard as juxtaposed with theprovision for relaxation in the 1996 Rules - was again erroneous.Learned counsel highlighted that the CAT did not deal with theUOI's contentions with regard to the applicability of Section 21of the General Clauses Act. It was emphasized in this context thatthe rules framed under proviso to Article 309 of the Constitutionare law, and, therefore, Section 21 would apply. In the presentcase, the UOI had adopted the method of consulting the DOPTand thereafter obtaining the clearance of the UPSC - which wouldhave been the method adopted for amendments and relaxing theconditions, at the relevant time. In these circumstances, since theapplicant direct recruits could not have claimed any manner ofright towards such posts, their application alleging violation ofthe quota-rota rule ought to have been rejected.

13.The petitioners relied upon the decisions of the SupremeCourt reported as Direct recruit Class-II Engineering ServicesAssociation v. State of Maharashtra, 1990 (2) SCC 715 andMohd. Risul v.Gokul, AIR 2010 SC 3064, in making thesesubmissions.

Contention of the direct recruits

14.The direct recruit applicants submit that the impugnedorder does not call for any interference and contend that therecruitment rules as they stood on 31.03.1987 indicated that therewere 157 posts of DSPs. 47 fell to the promotee quota and 32 forthe direct recruits. With the gradual increase in the number ofvacancies by 1995, the total sanctioned strength had swelled to289. Only 86 posts could be filled by the promotees and 59 by thedirect recruits. 170 promotions were made.

15.Mr. Siddharth Luthra, learned senior counsel for directrecruits and Mr. Khare, one of the applicant/direct recruits,contend that with the promulgation of the 1996 Rules on 31.1.97,the quota for promotees was increased to 50% and 145 posts fellin their quota and 59 posts fell in the direct recruitment quota of20%. The direct recruits contend that they have no grievance inrespect of 86 promotee officers at serial No.2 to 87 of the saidseniority list who were promoted within their quota of 30%. 84promotees from SI. No.89 to 175 (except DRs at SI. Nos. 95, 125and 126), they allege, were promoted in excess of their quotaduring the years 1991 – 1996, and are adhoc and fortuitous andcannot be placed senior to the direct recruits.

16.It is argued that in terms of Clause II of the 1996 Rules,Clause VI of the said Rules would be applicable only in cases ofpersons who are holding Gr. 'A' posts in the CBI. Clause II of the1996 Rules provides that these rules shall apply to posts specifiedin Col. 1 of the said rules. Since the post of DSP has been re-classified as Gr.'A' under these rules, the provision regarding'power to relax' and the consequent deemed relaxation would beapplicable only in the case of members who are holding Gr.'A'posts. It would not be applicable to the excess Gr.'B' promoteesDSP and they cannot be deemed to be regularized. Further, thedirect recruits point out to Note 2 of Column 11 of the ruleswhich specifically mentions that "The regular incumbents of thepost of Deputy Superintendent of Police in the scale of Rs.2000-3500 in (Rs.650-1200 pre revised) (Gr.B. Gazetted) on the date ofnotification of the revised rules, will be deemed to have beenappointed to the post of Deputy Superintendent of Police in thescale of pay of Rs.2200-4000 (Group Gazetted) at initialConstitution." As such, the deemed relaxation of rules forappointment as Gr.'A' can only be in favor of the regularincumbents of the post of DSP Gr. 'B' as stipulated in the Rules.Had the intention been to give the benefit of deemed relaxationfor appointment as DSP Gr.'A' to all the appointees holding thepost of DSP Gr.'B', whether regular or adhoc, there would havebeen no need to specify the term 'regular incumbents' and theword 'incumbents' would have sufficed.

17.That, further, under the 1987 and 1996 Rules there is no'failing clause' in the mode of recruitment as regard the 20%

posts of DSP for direct recruits. In the absence of the 'failingclause' there can be no deemed relaxation of the rules in favor ofthe promotees to fill these posts.

18.The direct recruits urge that there is no power to relaxunder the 1963 Rules and the 1987 Rules. The power to relax forthe post of DSP came into effect for the first time on 31.1.97, i.e.the date on which the 1996 Rules came into force and cannothave retrospective effect. It would not be applicable to the excesspromotions which took place during the years 1991-1996 and theexcess promotees cannot be deemed to be regularized. The directrecruits also submit that even UPSC had treated the excesspromotees as ad-hoc promotees while giving the concurrence fordiversion of 11 vacancies falling under the direct recruitmentquota to the promotion quota vide its letter No.F.11/2/88-All-IVdated 16.2.88. This was dealt in paras 6 and 7 of CAT's orderdated 1.7.10. In support of the submission that rules can berelaxed only if provided in the recruitment rules and on the termsand conditions stipulated therein, reliance is placed on thejudgments of the Supreme Court reported as Suraj PrakashGupta and Others v. State of J&K 2000 (7) SCC 56; KeshavChandra Joshi v. Union of India 1992 Supp (1) SCC 272 andSyed Khalid Rizvi v. Union of India 1993 Supp.(3) SCC 575.

19.Refuting the arguments of the promotees and UOI, it issubmitted that Section 21 of the General Clauses Act does notbestow any inherent power on the Central Government to relaxservice rules, since it only provides that where the government

has the authority to enact rules or issue orders or notifications, italso has the authority to amend, add or vary the rules or orders ornotifications. However, for relaxation of service rules, an expressprovision of the clause 'power to relax' should be made in therelevant recruitment rules.

20.The direct recruits submit that the quota rule has notbroken down in this case and rely on the findings in paras 8 to 20of the impugned order. provision for direct recruitment throughCivil Services Examination was made for the first time in the1987 RRs which came into force on 31.3.1987. However,adequate vacancies were not sent by CBI to UPSC for directrecruitment and excess promotions continued to be made againstthe quota of direct recruitment and deputation even though therelevant recruitment rules did not permit diversion of thevacancies/quota of the direct recruits/deputation for promotion.The direct recruits rely on table given by the official respondentat page 18 of the writ petition, to say that 34 direct recruits weretaken in the years 1991, 1992, 1994, 1996, 1997, 1998, 1999 and2000 whereas 118 promotions were made during the years 1990-1996. This shows that many promotees were promoted on adhocbasis outside their quota of 30%. These facts, emphasize thedirect recruits, do not disclose case of break-down of the quotarule as direct recruitment and promotion both took place, but it isa case of suppression/under reporting of the vacancies of directrecruitment to UPSC and inaction/lethargy on the part of theGovt./Department to induct direct recruits through the Civil

Services Examination. The said table, relied on by the directrecruits, is extracted below:

21.The direct recruits rely on the rulings of the Supreme Courtin number of judgments that mere inaction/lethargy on the partof the government/employer to induct direct recruits would notamount to breaking down of the quota rule, i.e. N.K. Chauhanand Ors. v. State of Gujarat and Ors. (1977 (1) SCC 308); U.P.Secretariat U.D.A. Association and Ors. v. State of U.P. andOthers (1999 (1) SCC 278); M.S.L. Patil and Others v. State ofMaharashtra and Others (1996 (11) SCC 361);StateofMaharashtra and Anr. v. Sanjay Thakre and Others (1995 Supp.(2) SCC407 and Suraj Prakash Gupta (supra).22.Lastly, the direct recruits impeach the authenticity of thedata submitted by the UOI in WP. 7370 of 2010 by AnnexureNo.P-5 (Colly) regarding the number of vacancies sent to theUPSC for recruitment of direct recruit DSPs during the year 1990to 1993. They argue that these appear doubtful in view of thereply dated 9.7.2010 to the RTI application of the firstrespondent, (where the department stated that the concernedrecords regarding vacancies sent to the UPSC for recruitment ofDSPs in CBI during the period 1988 to 1993 had been destroyed).Further, as per UPSC letter No.F.11/2/88-All-IV dated 16.2.88the total strength of DSP cadre was 161 out of which 32 posts fellunder the direct recruitment quota against which 3 direct recruitswere in place. The same meant that 29 vacancies were existingunder the direct recruitment quota on 16.2.88 out of whichconcurrence was given for diversion of 11 vacancies to thepromotion quota. As such, 18 vacancies still remained for thedirect recruitment quota. However, in terms of the letter dated 6

Nov., 1990, only 05 backlog vacancies under 'Direct Recruitment'quota vacancies were notified to be filled on the basis of CivilServices Examination, 1991, under intimation to the UPSC by.This is, according to the direct recruits, clear-cut case of non-reporting/suppression of the vacancies for direct recruitmentbecause of which the quota rule cannot be said to have brokendown. The direct recruits point out to principle 2.4.4 of the Govt.of India instructions on Seniority as contained in DoPT O.M.dated 7.2.1986, in this regard, that

"with view to curbing any tendency of underreporting/suppressing the vacancies to be notified tothe concerned authorities for direct recruitment, it isclarified that promotees will be treated as regular onlyto the extent to which direct recruitment vacancies arereported to the recruiting authorities on the basis ofthe quotas prescribed in the relevant recruitment rules.Excess promotees, if any, exceeding the share falling tothe promotion quota based on the correspondingfigure, notified for direct recruitment would be treatedonly as ad-hoc promotees."

Analysis and Conclusions

23.As can be seen from the above narration of facts, the 1963rules understandably visualized and provided for recruitment tothe extent of 85% through deputation/transfer because theorganization was at its infancy; the balance 15% was throughpromotion. This position changed in 1972, with the amendmentincreasing the quota for promotees to 30%. For the first time, adirect recruitment channel (20%) after consultation with theUPSCwasprovided.However,nofurtherdetailswereprescribed. The 1987 amendment saw status quo with respect to

the quota for promotees and direct recruits. The only change itbrought about was that direct recruitment was to be from amongstcandidates to the Civil Services Examination.Post 1997, thequota for promotees swelled to 50%; the ratio for direct recruitsremained unchanged and the balance was to be filled bytransfer/deputation. Two notes were added; they read as follows:

"Note 1-Above percentage shall apply to posts and notto vacancies.

Note 2- The regular incumbents of the post of DeputySuperintendent of Police in the scale of pay ofRs.2000-3500 in (Rs.650-1200 pre-revised) (Gr.B.Gazetted) on the date of notification of the revisedrules, will be deemed to have been appointed to thepost of Deputy Superintendent of Police in the scale ofpay of Rs.2200-4000 (Group Gazetted) at initialConstitution."

Another new feature was the introduction of the power to relaxthe rules- which was not expressly provided in the original rulesor any amendment prior to 1997.

Under-reporting of direct recruit vacancies

24.Now the facts discussed above show that about 132 postswere created between 1987 and 1996. At this stage itself, thedirect recruits' argument on this aspect needs to be dealt with.Their contention is: given the quota (20%) falling to their share -which is post based- their share in the cadre would be 59. Thisargument, in the court's opinion, is flawed. The post basedvacancy concept was introduced for the first time in Note 1 to the1996 Rules (with effect from 1997); that note stated that "Above

percentage shall apply to posts and not to vacancies". This notecould not have been applied retrospectively. It is no one's casethat this provision – which provides that the quota is to beworked on post based vacancy cadre – existed previously. This isapparent from the decision of the Supreme Court in State ofPunjab & Others vs. Dr. R.N.Bhatnagar & Anr 1999 (2) SCC330, where it was held that:

" It has, therefore, to be appreciated that when posts ina cadre are to be filled in from two sources whetherthe candidate comes from the source of departmentalpromotees or by way of direct recruitment once both ofthementeracommoncadretheirbirthmarksdisappear and they get completely integrated in thecommon cadre. This would be in consonance with thethrust of Article 16(1) of (the Constitution of India. Noquestion of exception to the said general thrust of theconstitutional provision would survive as Article 16 (4)would be out of picture in such case. Consequentlythe decision rendered by the Constitution Bench inR.K. Sabharwal 's case (supra) in connection withArticle 16(4) and the operation of roster for achievingthe reservation of posts for SCs, STs and BCs as perthe scheme of reservation cannot be pressed in servicefor the present scheme of Rule 9(1) is not as per Article16(4) but is governed by the general sweep of Article16(1).Theattemptoflearnedcounselfortherespondent to treat quota rule as reservation rulewould result in requiring the State authorities tocontinuethebirth-marksofdirectrecruitsandpromotees even after they enter the common cadrethrough two separate entry points regulating theirinduction to the cadre. Therefore, the roster for 3promotees and one direct recruit is to be continuedevery time vacancy arises and there is no question offilling up vacancy arising out of retirement of adirect recruit by direct recruit or on the retirementvacancy of promotee by promotee. Consequently,the question of rotating the vacancies as posts or fortreating the posts mentioned in the rules of recruitmentas necessarily referable to total posts in the cadre at a'given point of time in the light of .R..K. Sabharwalsjudgment (supra), therefore, cannot survive for in thecase of quota rule between direct recruits andpromotees the same is to be judged on the touchstoneof Article 16(1) and the statutory rules governing therecruitment to the posts of Professor constituting the-Punjab Medical Education Service (ClassI) and noton the basis of Article 16(4).The Division Bench in theimpugned judgment with respect wrongly applied theratio of R.K. Sabharwal's case (supra) governingArticle 16(4) to the facts of the present ease which aregoverned by Article 16(1).."

(emphasis given)

This view was also followed inAll India Federation of CentralExcise vs. Union of India and Others,1999 (3) SCC 384.Resultantly, there is fallacy in the direct recruit officers'argument. This means that for direct recruits, there was farsmaller number of posts than 59. If one were to calculate these onthe basis of the number of posts between 1987 and 1997, it wouldbe about 26. The tabular statement relied on by the direct recruitsduring the hearing demonstrates that in fact, till 1995, 32vacancies (many of them unfilled and possible repeat vacancies)were notified to the UPSC. This undermines their argument aboutunder-reporting (of vacancies). The period subsequent to 1995(1996-98), saw 33 vacancies in the cadre of DSPs being reportedto UPSC and advertised. Intrinsically connected with these factsis the fact that several DSP posts (about 122) were created, during

the period 1990-93 to cater to national emergencies and eventssuch as Babri Masjid demolition, the Bombay blasts, scamswhich were unearthed, etc. Yet, before it is accepted and turnedinto finding, closer scrutiny is necessary. There is no doubtthat the 1996 rules came into force with effect from January1997.There is nothing in the express terms of these rules thatthey operate from retrospective date. If such is the inferencefrom the plain terms of the 1997 rules, there is no reason to “retrofit” their application – or for that matter, the amendment of 1987topreviousperiods.Whiledrawingsenioritylists,theadministrators have to keep in mind the quota position whichprevailed during the various periods when the rules underwentchanges. Thus, for the period 1963 onwards, the quota forpromotees was 15%; at the time there was no quota for directrecruitment. There is material on record to suggest that in 1972 anamendment, introducing direct recruitment quota was broughtin, to the extent of 20%, for the first time. However the importantfeature of this amendment was that it never indicated the mode offilling up those vacancies; apparently sporadic attempts weremade to fill them and the UPSC on certain occasions forwardednames of candidates who had appeared in the Civil Servicesexams but could not be selected to the IPS. This process was lastundertaken in 1978.

25.As noticed before, till 1987, there was no “fixed” orconstant direct recruit quota in the grade of DSP, in the CBI. Asand when requisitions were made to the UPSC, candidatesinterested to join the organizations were forwarded; those

candidates apparently had applied for and appeared, but could notbe selected to the Indian Police Service. The 1987 Rules changedthis; the recruitment was to be through the Civil Servicesexamination. This aspect is significant, because the four letters of1988, 1990, 1991 and 1992- which sought for relaxation of rules/diversion of posts from the direct recruit quota, assume that sucha quota was inflexible. The materials and evidence on the recordhowever, do not suggest this; yet the Court has to proceed withthe prevailing understanding within the organization at the time,that such vacancies (i.e those which were “diverted”) should havebeen filled by direct recruits. As discussed earlier, the 1987 rulessuggest that there were 157 sanctioned posts in the cadre of DSPas on that date. The CBI contends that 122 posts were createdafter the 1987 rules; the direct recruits also urge that the 1996Rules showed that there were total of 289 posts in the grade ofDSPs. The disputed letters placed on record by the UOI show thatapparently, about 26 candidates were selected and sponsored byUPSC. The direct recruits contested these letters on the groundthat they were produced for the first time in these proceedingsand that the reply to their RTI query stated that those recordswere not available. Even if this new material is to be ignored,several candidates accepted the offer and reported for work till1997. 32 vacancies were reported to the UPSC concededly, at therelevant period. In the opinion of this Court, even keeping asidethe issue of whether these vacancies were reported, the chartrelied upon, and produced before the CAT itself, reproduced inpara 9 of its order suggests that 26 candidates were in fact

sponsored for the period 1989-1995, against which 16 joined; 10did not join. The seniority list contains 193 incumbents in thepost of DSP. The applicant direct recruits do not challenge the listup to Sl. No. 53.

26.If these facts are kept in mind, especially that the directrecruitment quota – though defined, was not resorted to, and wasconditional upon the CBI filling it after consultation with UPSC,the background of the facts of this case become clearer. Thedirect recruitment quota, in sense crystallized (or became“fixed”) after the 1987 Rules. The materials suggest that 26 directrecruit vacancies were in fact notified; yet 10 went a-begging asthe selected candidates did not report for duty. If one were tokeep the block period 1987-1996 in mind (in fact supported bythe applicant direct recruits who do not question the promotion ofDSPs upto Sl. No. 53), the vacancies with which the CAT had todeal were 139. Twenty per cent of that number is in fact 28. TheCAT’s finding about under-reporting or suppression of directrecruit vacancies which arose therefore, was clearly erroneous.

Power to relax

27.The direct recruits’ case is premised upon Note 2, ofColumn 11 in respect of the entry pertaining to DSPs. Theargument here is that only “regular” entry would be respected forseniority.The first submission in this regard is that the“diversion” of vacancies to the promotee quota is unauthorized,because the rules did not admit of power of relaxation and thesecond is that the filling up of vacancies on account of diversion

is contrary to the rules and the incumbents cannot be treated as“regular” officers.

28.There is no doubt that the 1963 Rules did not contain apower to relax; this was introduced for the first time in 1997through the 1996 amendment. The argument on behalf of theUnion and promotees is that though such power was introducedlater, the general power of modification or alteration ofnotification, orders, etc. exists under Section 21 of the GeneralClauses Act, 1897. That provision reads as follows:

“Section21:"Where,byanyCentralActorRegulation, power to issue notifications, orders,rules, or bye-laws is conferred, then that powerincludes power, exercisable in the like manner andsubject to the like sanction and conditions if any, toadd to, amend, vary or rescind any notifications,orders, rules or bye-laws so issued..”

There is no dispute that Rules framed under proviso to Article309 of the Constitution of India are statutory in character andhave the force of law. Ram Autar Pandey v. State of UttarPradesh (1962) ILLJ 148 All (Full Bench) – is authority for theproposition that under Article 309 of the Constitution of Indiaread with Section 21 of the General Clauses Act, the Governor iscompetent to alter the rules regulating conditions of service ofGovernment servants from time to time; alteration of the rules tobe carried out under the same conditions under which originalrules can be framed. In Mohd. Yunus Saleem v. Shiv KumarShastri and Ors AIR 1974 SC 1218, 1974 (4) SCC 854 the datebefore which election was to be completed, was notified by the

Election Commission. Those dates were sought to be altered. Theargument made was that the Commission did not possess thepower to extend the date in certain constituencies, becauseSection153provided for extending "the time for completion ofany election by making necessary amendments in the notificationissued by it under Section30…” Section30(e)dealt with "thedate before which the election shall be completed". The last datefor completion of the election was fixed by the appropriatenotification to be 15th March, 1971 and the altered date of poll inthis case from 3rd to 9th March is within the last date forcompletion of the poll under Section30(e).Negativing thecontention about the Commission’s lack of power to alter thedate, it was held, by the Supreme Court, that:

“The Election Commission in this case exercisedpower under Section30of the Act and issued thenotification appointing the various dates mentionedtherein for the purposes specified. Once this power isconferredunderSection30upontheElectionCommission, the power to amend the same, which willinclude alteration of the dates of poll, can be exercisedunder section21of the General Clauses Act. There is,therefore, no merit in the contention that the ElectionCommission had no power or jurisdiction to alter thedate of poll from 3rd March to 9th March, 1971, in theremaining constituencies in this case.”

This court notices that Mohd. Yunus Saleem (supra) wasoverruled, though not on this point of law, by Umed Singh v. RajSingh, AIR1975SC43, (1975) 1 SCC 76. On Section 21, GeneralClauses Act, Umed Singh held that:

“41. We are, therefore, of the view that the words "towithdraw or not to withdraw from being candidate"inClause(a)ofSub-section(1)(A)ofSection123refertothestageofwithdrawalofcandidature under Section37and they do not apply toa situation where contesting candidate announcesthat he does not wish to contest the election or declareshis intention to sit down after the last date forwithdrawal of candidatures under Section37is pastand list of contesting candidates is published underSection38Mohd. Yunus Saleem's case, (supra) in sofar as it takes different view, must be regarded aswrongly decided.”

Jayantbhai Manubhai Patel and Ors v Arun Subodhbhai Mehtaand Ors. AIR1989 SC 1289 was case where the Mayor of aCorporation altered the date of meeting. Rejecting thecontention that he lacked power to do so, it was held that:

“In our view, the power of the Mayor conferred underClause 1 of Chapter II of the said Schedule must beregarded as statutory power as distinguished fromthe powers of directors of company which arederived strictly from the Articles of Association of theCompany which are contractual in nature. Thereappears to be no reason to take the view that theprinciplesunderlyingSection21oftheBombayGeneral Clauses Act would not apply to the saidpowers of the Mayor. In our view, appellant No. 1, theMayor of respondent No. 5, Corporation, had thepower to cancel the notice convening the meetingbefore the commencement of the meeting with view toconvene the meeting on later date. The question,however, whether he has exercised the power within itstrue ambit is different question altogether. In thisregard, in our opinion, although the Mayor had thepower to cancel the notice convening the meeting and

to direct the secretary to issue notice to that effect,the said power could be exercised only bona fide andfor purpose or purposes within the scope of the saidAct. If the power was exercised mala fide of for acollateral purpose, the exercise of the power wouldcertainly be bad. In the present case, there isconsiderable factual Controversy as to whether, evenon the footing that appellant No. 1 had, the power tocancel the notice convening the meeting, that powerwas exercised bona fide for purpose within the scopeof the said Act or whether it was exercised forcollateral or impermissible purposes. “

29.In the present case, considering the circumstances underwhich the posts were created, the consultation between UPSC andthe concerned departments of the Union of India revealedcompelling public interest for filing the vacancies. Furthermore,as discussed earlier, repeated requisitions were made to theUPSC; apparently they did not elicit whole hearted enthusiasticresponse from direct recruit candidates. It thus cannot be said thatthe invocation of power under Section 21 was precluded, orunreasonable. The insertion of the power to relax through lateramendment would at best be considered clarificatory. Notengrafting relaxation power under the Rules till 1997 did notmean that recourse to Section 21 of the General Clauses Act wasbarred. In this case, the diversion of vacancies was justified onthe basis that large number of new posts were sanctioned, onaccount of national exigencies and consequently the UPSC’sprior approval to fill them by promotion was sought and granted,given the imperative need to fill them expeditiously. Consideringthat the posts were to be filled normally after consultation withUPSC,whetherfordirectrecruitmentorpromotion,the

consultation process through which approval for the move wasgiven in this case, itself constituted sufficient compliance withSection 21. The findings of the CAT that the power of relaxationdid not exist, and could not have been resorted to, are therefore,erroneous.

Whether the promotee quota was exceeded

30.The issue of how vacancies are to be dealt with when thequotas for two channels of recruitment cannot be consistentlyfilledevenly,wasconsideredinthelightofprevailinginstructions of the Central Government, in Union of India v. N.R.Parmar, (2012) 13 SCC 340. The Supreme Court took note of theOMs of the Central Government, dated 22.12.1959, 07.02.1986,03.07.1986 and 03.03.2008 and held as follows:

"The O.M. dated 7.2.1986, was followed by anotherOffice Memorandum issued by the Government ofIndia, Department of Personnel and Training, dated3.7.1986 (hereinafter referred to as, "the O.M. dated3.7.1986").The purpose of the instant O.M., as thesubject thereof suggests, was to consolidate existinggovernmental orders on the subject of seniority.Paragraphs 2.4.1 to 2.4.4 of the O.M. dated 3.7.1986dealt with the issue of inter se seniority between thedirectrecruitsandpromotees.Thesameareaccordingly being reproduced hereunder:-

"2.4.1Therelativeseniorityofdirectrecruitsandofpromoteesshallbedetermined according to the rotation ofvacanciesbetweendirectrecruitsandpromotees which shall be based on the quotaof vacancies reserved for direct recruitment

andpromotionrespectivelyintheRecruitment Rules.

2.4.2 If adequate number of direct recruitsdo not become available in any particularyear, rotation of quotas for the purpose ofdetermining seniority would take place onlyto the extent of the available direct recruitsand the promotees.

In other words, to the extent direct recruitsare not available the promotees will bebunched together at the bottom of theseniority list below the last position uptowhich it is possible to determine seniority,on the basis of rotation of quotas withreference to the actual number of directrecruits who become available. The unfilleddirect recruitment quota vacancies would,however, be carried forward and added tothecorrespondingdirectrecruitmentvacanciesofthenextyear(andtosubsequentyearswherenecessary)fortaking action for direct recruitment for thetotal number according to the usual practice.Thereafter in that year while seniority willbe determined between direct recruits andpromotees, to the extent of the number ofvacancies for direct recruits and promoteesas determined according to the quota forthat year, the additional, direct recruitsselectedagainstthecarriedforwardvacancies of the previous year would beplaced en-bloc below the last promotee (ordirect recruit as the case may be), in thesenioritylistbasedontherotationofvacancies for that year. The same principleholds good for determining seniority in theevent of carry forward, if any, of directrecruitment or promotion quota vacancies(as the case may be) in the subsequent year.

ILLUSTRATION: Where the RecruitmentRules provide 50% of the vacancies of agrade to be filled by promotion and theremaining 50% by direct recruitment, and aassuming there are ten vacancies in thegrade arising in each of the year 1986 and1987 and that two vacancies intended fordirect recruitment remain unfilled during1986 and they could be filled during 1987,the seniority position of the promotees anddirect recruits of these two years will be asunder:

2.4.3In order to help the appointingauthorities in determining the number ofvacancies to be filled during year undereachofthemethodsofrecruitmentprescribed, Vacancy Register giving arunning account of the vacancies arising andbeing filled from year to year may bemaintained in the proforma enclosed.

2.4.4 With view to curbing any tendency ofunder-reporting/suppressing the vacanciesto be notified to the concerned authoritiesfor direct recruitment, it is clarified thatpromotees will be treated as regular only to

theextenttowhichdirectrecruitmentvacancies are reported to the recruitingauthoritiesonthebasisofthequotasprescribed in the relevant recruitment rules.Excess promotees, if any, exceeding theshare failing to the promotion quota basedon the corresponding figure, notified fordirect recruitment would be treated only asad-hoc promotees."

(emphasis is ours)

The following conclusions have been drawn byus from the O.M. dated 3.7.1986:-

(a) If adequate number of direct recruits (orpromotees) do not become available in anyparticular year, "rotation of quotas" for thepurpose of determining seniority, would stopafter the available direct recruits and promoteesare assigned their slots for the concernedrecruitment year.

(b) To the extent direct recruits were notavailable for the concerned recruitment year,the promotees would be bunched together at thebottom of the seniority list, below the lastposition upto which it was possible to determineseniority, on the basis of rotation of quotas. Andvice versa.

(c)Theunfilleddirectrecruitmentquotavacancies for recruitment year, would becarried forward to the corresponding directrecruitment vacancies of the next year (and tosubsequent years, where necessary). And viceversa.Inthisbehalf,itisnecessarytounderstand two distinct phrases used in the OMdated 3.7.1986. Firstly, the phrase "in that year"which connotes the recruitment year for whichspecific vacancies are earmarked. And secondly,

the phrase "in the subsequent year" whichconnotes carried forward vacancies, filled inadditionto,vacanciesearmarkedforasubsequent recruitment year.

(d) The additional direct recruits selected,against the carried forward vacancies of theprevious year, would be placed en-bloc belowthe last promotee. And vice versa.

It is, therefore, apparent, that the positionexpressed in the O.Ms. dated 7.2.1986 and3.7.1986, on the subject of inter se senioritybetween direct recruits and promotees, wasabsolutely identical. This is indeed how it wasintended, because the OM dated 3.7.1986 wasonlymeantto"consolidate"existinggovernmental instructions, on the subject ofseniority…

XXXXXXXXXXXX XXXXXXXXXXXXXXXXX

25. Reference necessarily needs to be made to yetanother office memorandum issued by the Governmentof India, Department of Personnel and Training, dated3.3.2008 (hereafter referred to as, "the OM dated3.3.2008". In view of the emphatic reliance on the OMdated 3.3.2008, during the course of hearing, the sameis reproduced hereunder, in its entirety:

"New Delhi, dated the 3rd March, 2008

OFFICE MEMORANDUM

Subject:Consolidated instructions on senioritycontained in DOP&TO.M.No.22011/7/1986-Estt.(D)dated

3.7.1986

Clarification regarding

TheundersignedisdirectedtorefertothisDepartment's consolidated instructions contained inO.M. No.22011/7/1986-Estt.(D) dated 3.7.1986 layingdown the principles on determination of seniority ofpersons appointed to services/posts under the CentralGovernment.

2. Para 2.4.1 and 2.4.2 of the O.M. dated 3.7.1986contains the following provisions:

2.4.1 The relative seniority of direct recruits and ofpromotees shall be determined according to therotation of vacancies between direct recruits andpromotees, which shall be based on the quota ofvacanciesreservedfordirectrecruitmentandpromotion respectively in the Recruitment Rules.

2.4.2 If adequate number of direct recruits does notbecome available in any particular year, rotation ofquotas for the purpose of determining seniority wouldtake place only to the extent of available direct recruitsand the promotees.

3.Somereferenceshavebeenreceivedseekingclarifications regarding the term "available" used inthe preceding para of the OM dated 3.7.1986. It ishereby clarified that while the inter-se seniority ofdirect recruits and promotees is to be fixed on the basisof the rotation of quota of vacancies, the year ofavailability, both in the case of direct recruits as wellas the promotees, for the purpose of rotation andfixation of seniority, shall be the actual year ofappointment after declaration of results/selection andcompletionofpre-appointmentformalitiesasprescribed.Itisfurtherclarifiedthatwhenappointments against unfilled vacancies are made insubsequent year or years, either by direct recruitmentor promotion, the persons so appointed shall not get

seniorityofanyearlieryear(viz.yearofvacancy/panel or year in which recruitment process isinitiated) but should get the seniority of the year inwhich they are appointed on substantive basis. Theyear of availability will be the vacancy year in which acandidate of the particular batch of selected directrecruits or an officer of the particular batch ofpromotees joins the post/service.4. Cases of seniority already decided with reference toany other interpretation of the term "available" ascontained in O.M.dated 3.7.1986 neednot bereopened…

The following conclusions, in our view, can be drawnfrom the OM dated 3.3.2008:

(a) The OM dated 3.3.2008 is in the nature of a"clarification", to the earlier consolidated instructionson seniority, contained in the OM dated 3.7.1986(referred to and analysed, in paragraph 21 above).

(b) The term "available" used in para 2.4.2 in the OMdated 3.7.1986 has been "clarified" to mean, both incase of direct recruits as well as promotees, for thepurpose of fixation of seniority, would be the actualyear of appointment "after the declaration of theresult/selection", i.e., after the conclusion of theselection process, and after the "completion of the pre-appointmentformalities"(medicalfitness,policeverification, etc.).

(c) As per the OM dated 3.7.1986, when appointmentsare made against unfilled vacancies in subsequentyear(s),thepersonsappointedwould"not"getseniority with reference to the year in which thevacancy arose, or the year in which the recruitmentprocess was initiated, or the year in which theselection process was conducted.

(d) As per the OM dated 3.3.2008, when appointmentsare made against unfilled vacancies in subsequentyear(s), the persons appointed would get seniority ofthe year in which they are appointed "on substantivebasis.

XXXXXXXXXXXXXXXXX

33. Having interpreted the effect of the OMs dated7.2.1986 and 3.7.1986 (in paragraphs 20 and 21hereinabove), we are satisfied, that not only therequisition but also the advertisement for directrecruitment was issued by the SSC in the recruitmentyear in which direct recruit vacancies had arisen. Thesaid factual position, as confirmed by the rival parties,is common in all matters being collectively disposed of.In all these cases the advertised vacancies were filledupintheoriginal/firstexamination/selectionconducted for the same. None of the direct recruitIncome Tax Inspectors herein can be stated to beoccupying carried forward vacancies, or vacancieswhichcametobefilledupbya"later"examination/selection process. The facts only reveal,that the examination and the selection process of directrecruits could not be completed within the recruitmentyear itself. For this, the modification/amendment in themanner of determining the inter-se seniority betweenthe direct recruits and promotees, carried out throughthe OM dated 7.2.1986, and the compilation of theinstructions pertaining to seniority in the OM dated3.7.1986, leave no room for any doubt, that the"rotationofquotas"principle,wouldbefullyapplicable to the direct recruits in the presentcontroversy. The direct recruits herein will thereforehave to be interspaced with promotees of the samerecruitment year.”

31.As held earlier, the contention- and consequent finding-about underreporting of vacancies cannot be sustained. Here, thedirect recruits’ argument is that promotees were not “regular”

officers, because their promotions were in excess of the quota.One part of this argument has been dealt with and the Court hasconcluded that the general power to relax, under Section 21 of theGeneral Clauses Act, 1897 could have been invoked in thecircumstances of the case. This part of the discussion relates tothe submission that the filling of diverted vacancies reallyamounted to promotions in excess of the quotas. Here, the directrecruits rely on the decisions reported as N.K. Chauhan and Ors.(supra); U.P. Secretariat U.D.A. Association (supra); M.S.L. Patil(supra); K.C. Joshi (supra) etc. Each of those decisions concerneditself with ad-hoc promotions of set of candidates, in excess ofthe quota set apart for the other category (direct recruits). It washeld that regularization did not mean that those promotees whosecured unjustified benefits at the cost of the other category,could also secure seniority. The Supreme Court ruled that forseniority the promotees would have to wait in queue for their turnin accordance with the rules. N.R. Parmar (supra) is the latestdecision on the subject; it had occasion to deal with allinstructions and Office Memoranda prevailing up to the point ofthe decision. The Supreme Court summarized its conclusions onthe reading of Para 2.4.2 and Para 2.4.4 of the OfficeMemorandum of 03.07.1986 and the subsequent OM of 2008 inthe following terms:

“The following conclusions, in our view, can be drawnfrom the OM dated 3.3.2008:

(a) The OM dated 3.3.2008 is in the nature of a"clarification", to the earlier consolidated instructions

on seniority, contained in the OM dated 3.7.1986(referred to and analysed, in paragraph 21 above).

(b) The term "available" used in para 2.4.2 in the OMdated 3.7.1986 has been "clarified" to mean, both incase of direct recruits as well as promotees, for thepurpose of fixation of seniority, would be the actualyear of appointment "after the declaration of theresult/selection", i.e., after the conclusion of theselection process, and after the "completion of the pre-appointmentformalities"(medicalfitness,policeverification, etc.).

(c) As per the OM dated 3.7.1986, when appointmentsare made against unfilled vacancies in subsequentyear(s),thepersonsappointedwould"not"getseniority with reference to the year in which thevacancy arose, or the year in which the recruitmentprocess was initiated, or the year in which theselection process was conducted.

(d) As per the OM dated 3.3.2008, when appointmentsare made against unfilled vacancies in subsequentyear(s), the persons appointed would get seniority ofthe year in which they are appointed on substantivebasis.

32.In Suraj Prakash Gupta (supra) the Supreme Court held

that:

“…we therefore hold that the ad hoc/stop gap serviceof the promotees cannot be treated as non-est merelybecause P.S.C. was not consulted in respect ofcontinuance of the ad hoc/stop gap service beyond sixmonths. Such service is capable of being regularisedunder Rule 23 of the J&K (CCA) Rules, 1956 andrectified with retrospective effect from the date ofoccurrence of clear vacancy in the promotion quota,subject to eligibility, fitness and other relevant factors.There is no 'rota' rule applicable. The 'quota' rule hasnot broken down. Excess promotees occupying directrecruitment posts have to be pushed down and adjustedin later vacancies within their quota, after dueregularisation. Such service outside promotee quotacannot count for seniority. Service of promotees whichis regularised with retrospective effect from date ofvacancies within quota counts for seniority. However,any part of such ad hoc/stop gap or even regularservicerenderedwhileoccupyingthedirectrecruitment quota cannot be counted. Seniority ofpromotees or transferees is to be fixed as per quotaand from date of commencement of probation/regularappointment as stated above. Seniority of direct recruitis from the date of substantive appointment. Seniorityhas to be worked out between direct recruits orpromoteesforeachyear.Wedecidepoint3accordingly.

Point 4 :

direct recruits cannot claim appointment from date ofvacancy in quota before their selection :

We have next to refer to one other contention raised bythe respond-ents- direct recruits. They claimed that thedirect recruitment appointment can be antedated fromthe date of occurrence of vacancy in the directrecruitment quota, even if on that date the said personwas not directly recruited. It was submitted that if thepromotees occupied the quota belonging to directrecruits they had to be pushed down, whenever direct

recruitment was made. Once they were so pusheddown, even if the direct recruit came later, he shouldbe put in the direct recruit slot from the date on whichsuch slot was available under direct recruitmentquota.

This contention, in our view, cannot be accepted. Thereason as to why this argument is wrong is that inService Jurisprudence, direct recruit can claimseniorityonlyfromthedateofhisregularappointment. He cannot claim seniority from datewhen he was not born in the service. This principle iswell settled. In N.K. Chauhan v. State of Gujarat,[1977] 1 SCC 308 (at p.321) Krishna Iyer, J. stated :

"later direct recruit cannot claim deemed dates ofappointment for seniority with effect from the timewhen direct recruitment vacancy arose. Seniority willdepend upon length of service."

Again, in A. Janardhana v. Union of India, [1983] 2SCR 936, it was held that later direct recruit cannotclaim seniority from date before his birth in theservice or when he was in school or college. Similarlyit was pointed out in A.N. Pathak v. Secretary to theGovernment, [1987] Suppl. SCC 763 (at p.767) thatslots cannot be kept reserved for the direct recruits forretrospective appointments.”

33.In Parmar (supra) the Supreme Court no doubt clarifiedand explained the meaning and effect of the two officememoranda; yet, it would be essential to again extract Para 2.4.2of the OM of 03.07.1986, with its illustration, which is telling forthe purpose of this case:

“2.4.2 If adequate number of direct recruits do notbecome available in any particular year, rotation ofquotas for the purpose of determining seniority would

take place only to the extent of the available directrecruits and the promotees.

In other words, to the extent direct recruits are notavailable the promotees will be bunched together at thebottom of the seniority list below the last position uptowhich it is possible to determine seniority, on the basisof rotation of quotas with reference to the actual numberof direct recruits who become available. The unfilleddirect recruitment quota vacancies would, however, becarried forward and added to the corresponding directrecruitmentvacanciesofthenextyear(andtosubsequent years where necessary) for taking action fordirect recruitment for the total number according to theusual practice. Thereafter in that year while senioritywillbedeterminedbetweendirectrecruitsandpromotees, to the extent of the number of vacancies fordirect recruits and promotees as determined accordingto the quota for that year, the additional, direct recruitsselected against the carried forward vacancies of theprevious year would be placed en-bloc below the lastpromotee (or direct recruit as the case may be), in theseniority list based on the rotation of vacancies for thatyear. The same principle holds good for determiningseniority in the event of carry forward, if any, of directrecruitment or promotion quota vacancies (as the casemay be) in the subsequent year.

ILLUSTRATION: Where the Recruitment Rules provide50% of the vacancies of grade to be filled bypromotion and the remaining 50% by direct recruitment,and assuming there are ten vacancies in the gradearising in each of the year 1986 and 1987 and that twovacanciesintendedfordirectrecruitmentremainunfilled during 1986 and they could be filled during1987, the seniority position of the promotees and directrecruits of these two years will be as under:

34.A proper application of the above condition, as explainedby the subsequent OM of 3.3.2008 would mean that the vacanciespermitted to be filled through promotion (by the UPSC) areactually so filled after following the conditions prescribed forpromotions (eligibility conditions, and criteria for promotion etc).As found earlier, the creation of these vacancies was to cater tonational exigencies and they had to be filled quickly and mannedbyexperiencedpersonnelhavingsomebackgroundininvestigation. The channel of promotion adopted to fill them wasnot irregular or illegal. At the same time, the CBI’s inability tofill vacancies to the direct recruit quotas meant that there wereunfilled vacancies in that channel, which kept getting rolled overand re-advertised. Interestingly, the seniority list impugned by thedirect recruits reveals that earlier direct recruits were interspersedon the basis of the same principle –at Sl. Nos 95, 125 and 126.The entry of direct recruits – contesting respondents in theseproceedings – at later date therefore meant that rotation ofvacancies could be resorted to the extent their numbers permittedit for the concerned year or years when the direct recruits joinedthe services; as far as others were concerned, they had to be

bunched together, below the promotees who entered the cadreearlier. Bunching or en-bloc placement of one or the othercategory of recruits (promotees or direct recruits) ipso factocannot be condemned, as is evident from the illustration to Para2.4.2 and the subsequent clarification. Therefore, the reasoningand order of the CAT in the impugned order cannot be sustained.

35.In view of the foregoing reasons, the impugned order of theCAT is set aside. The writ petitions are accordingly disposed of,without any order as to costs.

S. RAVINDRA BHAT(JUDGE)VIPIN SANGHI(JUDGE)NOVEMBER 17, 2014