Y. B. BADAMI ETC. versus STATE OF MYSORE & ORS.

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Y. B. BADAMI ETC.

STATE OF MYSORE & ORS.

September 17, 1975

[A. N. RAY, C.J., K. K. MATHEW ANDY. Y. CttANDRACHUD, JJ.J

M.vsore Administrative Service (Recruitment) Rules. 1951-Direct Recruits and prornotees-Quotas fixed-A promotee temporarily appointed against direct recruitn1ent vacancy-Whether could clailn riuht of ·seniority in the post as against direct recruit .

The I\1ysore Administrative Service (Recruitment) Rules, 1957 classified clas5 I posts into two categories : senior scale posts and the junior scale posts. 'fwo-thirds of the junior class I posts were filled by promotion from ClaS'5 II officers and the balance of one-third by direct recruitment by the Public Service Commission. The Mysore Administrative Service (Cadre) Rules, 1958 fixed the cadre strength at 12 senior 'Scale posts and · 135 junior scale posts, all of which were permanent. By the Mysore Recruitment of Gazetted Probationers Rules, 1959. the quota for direct recruitment to the Mysore Administrative Service Was increased from one-third to two-thir'ds for period of five years a·s consequence of which the quota for promotees had been reduced to one-third. Rule 17(b) of the 1957-Recruitment Rule•3 empowered the Government to fill up posts-temporarily by promotion against vacancies for direct recruits but such promotees were liable to be reverted after the appointment of direct re.:ru.its. In exercise of thi~ power, the eight appellants along with 51 other were promoted to officiate as junior ,Clas·s I officers in the 59 vacancies (39 for promotees <ind 20 for direct recruits). In 1962, the Government appointed direct recruits to 20 of the junior Class I posts but to avoid any hardship to the officiating promotees and to avoid audit objections, the Government sanc-tioned 20 ten1porary post.1· to accommodate the probationer for the two year period of their training. At the end of two years, and on completion of probation, in 1964 the Government terminated the probation of the ·direct recruits, as result of which they beca-me entitled, under Rule 9 of the Govern-ment Service Probation Rules. 1957. to be confirmed as full members of the service. They \Vere accordingly confirmed in the 20 substantive vacancies exis"-ing within their quota. The Government, however, did not renew the temporary vacan::ies after the direct recruit'5 had been confirmed in the permanent vacancies .

In January, 1972, Gardation List was published in which the direct recruits "F (respondents) were shown as senior to the appellants. The numbers of the respondents in the ]i'5t were 214 to 236 whereas those of the appellants were 273 to 280. The appellants challenged the seniority of the respondents in writ petitions on the ground mainly that the respondents were recruited only to the 20 temporary posts created and that the appellants and 51 others were appointed to 59 permanent vacancies. The High Court dismissed the writ petitions.

Dismissing the appeal to this Coµrt,

HELD : The contention of the appellants that the respondents were rec~uited to temporary vacancies i'l wrong. Respondents (direct re·:ruits) were entitled to the vacancies \Vithin their quota which had not been filled up and they were senior to the appellants. f821 D; 825Fl

(I) The principles generally followed in working out the quo~a rule are. (i) Where rules prescribe quota between direc· recruits and momotees_ confirma-tion or substantive appointment can only be in respect of ,:;tear vacancies in the permanent strength of the cadre; (ii) confirmed persons are senior to those who a-re officiating; (iii) as be ween person~ appointed in officiating capacity, seniority is to be counted on the length of continuous service: (iv) direct recruitment is possible only by compe~itive examination whi::h is the prescribed procedure under the rules. In promotional vacancie'l the promotion is either· 4-Lll27SCl/75by selection or on tho p;inciple of seniority.c;u1n merit. promotion could be made in respect of temporary post or for specified period, but direct recruit-ment bas generally to be made only in respect of clear permanent vacancy, either exi-.l1ng or ?nticipated to a·rise at or about the period of proba'.1on is ex.i"'Jected to be completed; (v) if promotions are made to vacancies in excess of the promotionul quota, the pi:omotions may not be totally illegal but v1oulU be irregular. 1 he promo tees cannot claim any right to bold promotional. posts unles'.> the vacancies fall within their quot<t<. If the pron1otees occupy an~ vacancies which ::He \vitbin the quota of direct recruits, when the direct rt·cruit-ment takes place, the direct rec1·uits will occupy the vacancies within th.:ir quota. Promotees who are occupying the vacancic9 within the quota of direct recruits will either be reverted or they will be absorbed in the vacancies within their quotct in the facts and circumstances of the case; and (vi) as long as the quota rule remains, neither promotees can be allotted to any of' the substantive vacancies of the quota of direct recruits nor direct recruits can be allotted to pron1otional vacancies; and (vii) quotas which are fixed are unalterable according to exigenc;es of the situation. They can only be altered by fresh deterrnin<ltion of quotas under the relevant rules. One group cannot claim the quota fixed for the other group either on the ground that the quotas are not filled up or that because there had been number in excess of the quota the same should be absorbed depriving the other group of quota. [822H; 823h-C; 824 C&GJ

Bish.an Sarup Gupta v. Union of India, A.I.R. 1972 S.C. 2627; S. C. Jai-singhanl v. Union of India [19671 2 S.C.R. 703; A. K. Subraman v. Union of India A.l.R., 1975 S.C. 483 and Bachan Singh & Anr. v. Union of India & Ors. [1972] 3 S.C.R. 898. referred to.

(2) The cadre, in the present case, consisted only of permanent posts through out the period. After the rules came into force the promotee& were in excess oi' the quota but when in 1962 direct recruitment was. made. there were 20 direct recruitn1ent vacancieSi in the quota which were not filled up, The promotee-s, ho\1.rever, being 20 in excess were not entitled. to confirmation again:.t the vacnncies within the quota of the direct recruits. The promotees were promoted on officiating basi·s. On the completion of the period of training of the 20 direct recruits. there was no renewal of the temporary posts and, therefore, the temporary po5ts which were created for the direct recruits during their period of probation could not be taken into account in workiiig out the Quota rule and for adjustment of seniority. In fact, they were created due to cert:.\in exigencies and' were outside the cadre. [821 D-G1

( 3) The pro1nolees had not been deprived of their appointment acd thev had not been subjected to any rever3ion. The implementation of the quota-rule has resulted in the adjustment of seniority consistent with the quota. The :.:onfirmations had been j<:._ued having regard to the pern1anent strength of the cadre and the quota. [821H; 822Al ( 4) It is impossible to hold that the direct recruits were ten1poran-emplO¥ee~ outside the permanent cadre of the service. Rule 9 of the Mysore Government Servan•s Probation Rules excludes tempo~ary posts from the .cadre. Tl al'>o pro-vides for confirmation of probationer as full m<:mber of the servi.:'~ i·~ ari:, substantive vacancy in the permanent cadre of such class. f822C-Dl

Bi.111an Sarup Gupta v. Union of India, A.LR. 1972 S.C. 2627; G. R. I.ud1td. Additionflf District Judge, Delhi v. l,t. G!;·verno.r, Delhi & Ors. A.LR. 1974 S.C. 1908 and A. K._ S11/J'·a111a11 v. Union of /nr/in, A.LR. 1975 S.C. 483. referred Li.

(5) There wa~ no quota rule for the period between 1 Novemb.:r. 1956 and l Dcccn1ber, 1957. During the period from 2 September, 1957 an<l 10 Septem-ber, 1959 (the dates on which the 1957 and 1959 Rules came into force) mlUlY per5on5 were promoted from Clas·~ II. Since two-thirds of the vacancies during this pe~iod were promotional vacancies, persons promoted to those vacanciei;; couid not be disturbed. However, those pron1otees who were in exce:is of the t'vo-th irtl vri.can:"rs wou.Jd be pushed down to the va-cancies in. the sub,'iequent

· i- ·A

period. Again, during the same period direct recruits equal in number to those one-third vacancies should be placed nex1: after the promotees placed in the first set of two-thirds vacancies. If the direct recruits were in excess of the quota they would be shifted to the subsequiont period. [8230-H; 824Al

(b) During the period 11 September, 1959, to 26 October,. 1964, direct re.:ruitment vacancies becatne t\vo-third and the promotional vac~ncies one-third, as result of which the excess promotees during the previous period \\ould be first absorbed in the promotional.vacancies and subsequent promotee5 \~·ould thereafter be absorbed. The resulting position was that direct re-.:ruitment vacancies between 11 September 1959 and 26 October, 1964, the date of confirmation of the respondents (direct recruits) could not be occupied by the promotees. T'he fact that direct recruits were confirmed would not, therefore, rob them of their quota which remained unfilled from 2. December, 19,57 onwards. The Government, th~refore, rightly confirmed the direct recruits and the appel-lates by adjustment of vacancies within their respective quotas and determined their seniority in accordance with Rule 2(b) of the Seniority Rules. [824 B.D.]

CIVIL APPELLATE JURISDICTON: Civil Appeal Nos. 1359 to 1365 of 1973.

From the Judgment and Order dated the 15th day of December, 1972 of the Mysore High Court in Writ Petitions Nos. 192, 193,. 478, 670, 940, 1303 and 1809 of 1972.

S. H. Gururaj Rao and S. Markendeya, for the appellants in all the appeals.

F. S. Nariman and Naraym, Nettar, for respondent No. 1 in all the appeals.

S.S. Javali, K. R. D. Karanth, A. K. Srivastava and B. P. Singh, for respondents Nos. 2, 3, 5, 6, 13 and 15 in C.A. 1359/73.

The Judgment of the Court was delivered by

RAY, C.J. : These appeals are by special leave against the judgment dated 15 December, 1972 of the High Court of Mysore.

The appellants in the writ petition asked for quashing the Grada-tion List of Officers published by the SU,te on 13 January, 1972. The coosequential prayer is for assigning correct ranks to the appellants.

The principal question is the relative seniority between direct recruits and promotees to the cadre of Assistant Commissioners of Mysore Ad-ministrative Service Class I (Junior Scal·e).

By notification dated 13 January, 1972 the Government published the Gradation List which was prepared as on 1 January, 1972. In the Gradalion List respondents No. 2 to 24 were placed at serial No. 214 to 236. The appellants ar·e placed in the Gradation List at seria·l No. 273 to 280. The appellants chaiienge the seniority of th~ respon-dents in the Gradation List.

On 2 December, 1957 the Mysore Administrative Service (Recruit-ment) Rules 1957 (hereinafter referred to as the 1957 Recruitment Rules) framed under Art1cle 309 of. the Constitution came into foree and the previous Rules were suoerseded. Under the 1957 Recruitment Rules Class I posts were divided into two categories. One was the senior scale post and the other was the junior post. The junior s<:ale

posts were to be filled up in the proportion of 66.2/3 per cent by pro-motion from Class II Officers and 33.l /3 per cent by direct recruitment by competitive examination to be held by the Public Service Com-n1ission.

By notification dated 23 January, 1958 issued under Article 309 of the Constitution the Governor constituted the Mysore Administrative Service (Cadre) Rules with effect from 1 November, 1956 (hereinafter referred to as the Cadre Rnles). The cadre consisted only of perma-nent posts comprising 12 Senior Scale posts and 135 Jnnior Scale Posts. The Cadre did not include temporary posts. It may be stated here that the initial cadre strength of Assistant Commissioners Class I Junior Scale posts was filled by persons allotted to the new State of Mysore on 1 November, 1956 when the new State of Mysore was formed. The allottees exceeding the strength of the cadre were gradually adjusted against substantive vacancies. Till 2 December, 1957 the Government did not frame special rules of recruit-ment applicable to the Mysore Administrative Service. Consequently all the vacancies arising until 2 December, 1957 were fi!led by promo-tion.

On 2 December. 1957 the 1957 Recruitment Rules came into exis-tence for filling 66.2/3 per cent posts by promotion and 33.1/3 per cent posts by direct recruitment. In Scutcmbcr. 1959 the Government issued the Mysore Recruitment of Gazetted Probationers Rnles, 1959 (hereinafter referred to as the 1959 Probationers Rules) whereby the quota for direct recruitment to the Mysore Administrative Service was increased from one-third to two-thirds for period of five years and the quota for promotion was reduced from two thirds to one-third. Pending finalisation of the inter-State seniority lists of Officers al-lotted to the new State of Mysore on 1 November, 1956 to the cadre of Assistant Commissioners the Government could not by reason of pend-ir•g proceedings in courts in respect thereof confirm officers working as Assistant Commissioners for long time. In order to meet the exi-gencies of service, Officers in Class II service were promoted on offi-ciating basis as Assistant Commissioners in Class I service (Jnnior Scale) from time to time Under Rule 17(b) of the•1957 Recruitment Rules the Government could fill up posts temporarily by promotion in varancies reserved for direct recruits but such promotees became liable to be reverted after appointment of officers by direct recruitment. The Government permitted many officers from Class II including the appel-lants to officiate as Assistant Commissioners in Class I service subse-qu·ent to 1 November, 1956. The earliest to be promoted on officiating basis among those promotees was Narsingharao Kallurkar on 30 November, 1959 who is numbered 268 in the Gradation List as on I January, 1972.

In September, 1959 the Government initiated steps for the first time for appointment of officers by direct recruitment to fill up the vacancies within the quota prescribed for direct recruits. The advertisement referred to 20 vacancies for the posts of Assistant Commissioners Class T and two vacancies for Assistant Controllers in the State Accounts

Service. These vacancies for direct recruits had arisen during the period immediately prior to the issue of the notification. These vacan-cies arose between 2 December, 1957 when the 1957 Recruitment Rules came into existence and 11 September, 1959 when the 1959 Probationers Rules came into force. The notification made it clear that the appoint-ment of probationers by direct recruitment was subject to the 1957 Re-cruitment Rules,, the Mysore Goverument Servants Probation Rules, 1957, and the 1959 Probationers Rules. The Public Service Commis-sion conducted the· competitive examination and selected 17 among res-pondents No. 2 to 24 for appointment as Assistant Commissioners Class I (Junior Scale) on probation. It may be stated here that the other six respondents were allottecl to the service as result of judgment of this Court. There is no dispute that all the 23 persons being respondents No. 2 to 24 are treated as direct recruits.

Respondents No. 2 to 24 ·were appointed on probation by order dated 26 October, 1962. They were required to undergo training and probation for period of two years. During the said period their ap-pointments were provisional and liable to termination on one month's notice, as was the case of recruitment of probationers. In order to cause minimum prejudice to the officiating promotees and in order to meet the audit objections by reason of Jack of provision in the 1957 Recruitment Rules for training reserves the Government sanctioned 20 temporary posts to accommodate the probationers for the period of their training.

On completion of the period of probation the Government issued declaration under Rule 5 of the Mysore Government Servants Proba-tion Rules 1957 that the respondents bad satisfactorily completed the period of probation on 26 October, 1964. Consequent upon such declaration each of the respondents became entitled under Rule 9 of the Government Servants Probation Rules, 1957 to be confirmed as full member of the service in the class or category for which he was selected at the earliest opportunity to any substantive vacancy which may exist or arise in the permanent cadre of such class or category. Respondents became entitled to be full members of the service and to confirmation in the permanent cadre against vacancies existing within their quota since the promulgation of the 1957 Recruitment Rules. The Government action declaring respondents to have satisfactorily completed the probation under Rule 5 of the Probation Rules resulted in the confirmation of the respondents in substantive vacancies with effect from 26 October, 1964. The creation of temporary posts for the duration of the training of respondents No. 2 to 24 as probationers was not renewed in 1964. The actual confirmation was delayed because of the finalisation of inter-State seniority lists of the allottees.

. The appellant~ contended first that the word "va~ancies occurring m the 1957 Recrmtment Rules means not only vacancies in the perma-H nent posts but also in temporary posts, and, therefore, the quota rnle applies to vacancies in alt posts whether permanent or temporary. On that construction it is said that upto 10 September, 1959 there were 59 yacancies and thou~ t!1e quota was for 39 promotions and 20 for

direct recruitment there were in fact 59 promotions and no direct re-cruitment with the· result that 59 promotees filled up all the vacancies permanent or temporary.

The second contention of the appellants was that the respondents were directly recruited as Assistant Gommissioners on 26 October" 1962 against temporary vac,ancies created with effect from 26 October, 1962 are not entitled to claim seniority over the appellants who had been promoted earlier than them and whose promotion was within the quota of 59 vacancies.

The third contention was that the direct recruits were not entitled lo count their seniority from date anterior to the date of their recruit-ment by taking advantage of the fact that the vacancies required to be filled up by direct reeruitment had not been actually filled up by direct recruitment, but had been filled up actually by promotion.

The fourth contention was that all the AssistanU Commissioners who were directly recruited or promoted to the posts of Assistant Commis-sioners formed one class and their inter-se seniority in the cadre of Assistant Commissioners has to be determined on the basis of length of service rendered by them in the category in order to have equality.

The fifth contention was that the respondents who were appointed on temporary basis and the appellants who were promoted on officiat-ing basis were entitled to have their seniority determined in accordance with the provisions of Rnle 2(c) of the Mysore Government Servant& (Seniority) Rules 1957, Rule 2(c) is as follows :-

"Seniority inter-se of persons appointed on temporary basis will be determined by the dates of their continuou& officiation in that grade, and where the period of officiation i& the same the seniority inter-se in the fuwer grade shall prc-vair'.

The sixth contention was that the respondents were appointed on temporary basis with effect from 26 October, 1962 against temporary posts created for them and they could not claim seniority to' appellants for these reasons. Under Rule 5 of the Mysore Government Servants Probation Rules, 1957 the probationers are deemed to have satisfac-torily completed their probation on the issue of an order to that effect. The respondents who were confirmed in substantive vacancies could be confirmed only in vacancies which might exist or arise after 26 Oc-tober, 1%4 and not earlier. The respondents were confirmed against substantive vacancies which arose .from 12 September, 1960 onwards. Both the 1957 Recruitment Rules and the 1959 Probationers Rules contemplate observance of quota rule at the time of appointment and promotion. . The question of enforcement of quota rules dQ\l~ not apply at the time of confirmation. The quota rule will only apply when the vacancies are filled up either by direct recruitment or pro-motion. The appellants are promoted prior to the direct recruitment of the respondents, and therefore, they arc entitled to c,laim seniority.

One of the most important matters to be kept in the forefront is that the permanent cadre strength of the Mysore Administrative Service is 147 of which senior duty posts are 12 and the junior posts 135,

The substantive vacancies which arose between 2 December,, 1957 and 10 September, 1959 were classified into vacancies which were re-quired to be filled up by direct recruitment and by promotion, in the ratio of 1/3 and 2/3 respectively in accordance with the 1957 Re-cruitment Rules which came into force on 2 December, 1957 .. The substantive vacancies which arose from 11 September, 1959 to 26 October 1964, the date when the direct recruits were confirmed were classified as direct recruitment and promotional vacancies on two thirds and one third basis respectively in accordance with the 1959 Proba-tioners Rules which came into existence on 11 September, 1959. The substantive vacancies which arose between 26 October 1964 upto 10 September, J 965 have been classified as direct recruitment and promo~ tional vacancies on two thirds and one third basis respectively in ac-cordance with the 1959 Probationers Rules which continued to be operative upto 11 September, 1965. From 11 September, 1965 to 8 October, 1971 the quota for direct recruitment became one third and for promotional vacancies it was two third.

The contention of the appellants·that the respondents were recruit-ed to temporary vacancies is wrong for these principal reasons.

First, the cadre here consists only of permanent posts. The cadre does not consist of any temporary post. The total number of vacan-cies between 2 December, 1957 and 10 September, 1959 were 59. llnder the quota 39 were promotional vacancies and 20 were direct recruitment vacancies. There were in fact 59 promotees. They were 20 in excess of their quota.. There was however no direct recruitmeat during that period. Again, between 11 September, 1959 and 10 Sej>-tember, 1965 the total number of vacancies were 208. Under the quota system 71 were promotional vacancies and 137 were direct re-cruitment vacancies. There were in fac.t 168 promotees during the period. Therefore 97 promotees were in excess of their quota. Out of the 13 7 direct recruitment quota only 20 were filled· up dnring the period. In this background it appears that when in 1962 direct re-cruitment was made there were 20 direct recruitment vacancies in the quota whic,h were not filled UJl. The promotees however, being 20 in excess were not entitled to coilfirmatio~ against the vacancies within the quota of the direct recruits. The promotees were promoted on otllciating basis. Therefore, When the respondents were appointed by direct recruitment on probation under order dated 26 October, 1962 they were required to undergo training and probation, for period of two years. In order to meet the audit objections by reason of lack of provisions in the Recruitment Rules for training reserves the Govern-G ment sanctioned 20 temporary posts to accommodate the probaiioners for the period of their probation. On the completiim of the period of training there was no renewal of the temporary pasts. Therefore. the temporary posts which were created for the direct recruits during their period of probation cannot be taken into account in working ant the quota rule and for adjustment of seniority. .

It may also be stated here that the promotees had not been deprived .of their appointment and they had not been subjected to any reversion. The implementation. of the quota rule has resulted in the adjusment of

seniority consistent with the quota. The confirmations had been issued in the cas,e of promotees and direct recxuits having regard to the per-manent strength of the cadre and . the quota. Se.cond, the advertisement of the Public Service Commission invit-ing dinect recruits stated that the posts "are likely to be made perma-nent". The order of appointment of the respondents as Gazetted Pro-bationers on selection by the Public Service Commission stated th_at the respondents were appointed as probationer Assistant Comm1s-·sioners. The order of appointment refers obviously to the 1959 Pro-bationers Rules.

Third, Ruk 9 of the Mysore Government Servants Probation Rules :states that probationer who has been declared to have satisfactorily -completed his probation has to be confirmed as full member of the service at the earliest opportunity in any substantive vacancy which may exist or arise in the permanent cadre of the service in respect of which he has been recruited as probationer. This Rule excludes tem-porary posts from the cadre. It is, therefore, impossible to hold that the direct recruits were temporary employees outside the permanent .cadre of the service.

Counsel on behalf of the appellants contended that the quota rule applies to vacancies in all posts, whether permanent or temporary and rnlied on the decisions of this Court in Bishan Sarup G~vta v. Union of India('), G. R. Luthra, Additional District Judge Delhi v. Lt. Governor, Delhi & Ors.([2 ]) and A. K. Subraman v. Union of India("). In all these cases the cadre comprised of both permanent and temporary posts. In Bishan Sarup' s case -(supra) the cadre consisted of perm a-nent and temporary posts. In Luthra's case (supra) cadre post as -defined in the Rules includes temporary. post. In Subraman' s case (supra) it was said that cadre might consist only of permanent posts or sometimes also of temporary posts. In the present case Rule 9 of the Probation Rules of 1957 provides for confirmation of probationer as full member of the service in any substantive vacancy in the perma-nent cadre of such class. This rule establishes the exclusion of tern-porary posts from the cadre.

In E. P. Royappa v. State of Tamil Nadu(') this Court said on the ·cons1ruclion of Rnle 4(2) of the relevant Cadre Rules in that case that the State Government might add for period to the cadre one or more posts. But the posts so added could not become cadre posts. The 1emporary posts which are created due to exigencies of the service are posts which ar·~ outside the cadre.

In working out the quota rule, these principles are generally fol-lowed. First, where rules prescribe quota between direct recruits and promotces. confirmation or substantive appointment can only be in respect of clear vacancies in the permanent strength of the cadre. ·Second, confirmed persons are senior to those who are officiating. "Third, as between persons appointed in officiating capacity, seniority ls

(I) A. I. R. 1972 S. C. 2627

(2) A.LR. 1974 S. C. 1908.

3) A. I. R. 1975 S. C. 483.

(4) [1974] 2 S. C.R. 348.

-,.- '''.. ..

to ?e counted on. the length of continuous service. Fourth, direct re-cruitment is possible only by competitive examination which is the prescnl>ed procedure under. the rules. In promotional vacancies, the promotion is either by selection or on the principle of seniority-cum- · merit. promotion could· be made in respect of temporary posts or for specified period but direct recruitment has generally to l>e made only in respect of clear permanent vacancy either existing or anticipated to arise at or about the period of probation is expected to be completed. Fifth, if promotions are made to vacancies in excess of the promotional quota, the promotions may not be totally illegal but would be irregular. The promotees cannot claim any right to hold the promotional posts unless the vacancies fall within their quota. If the promotees occupy any vacancies which are within the quota of direct recruits, when direct recruitment takes place the direct recruits will occupy the vacancies within their quota. Promo-tees who were occupying the vacancies within the quota of direct re-<:ruits· will either be reverted or they will be absorbed in the vacancies within their quota in the facts and circumstances of case.

The quota between promotees and direct recruits is to be fixed with reference to the permanent strength of 135 Jllnior Duty posts. Persons who were allotted the Junior Duty posts under the States Reorganisa-tion Act are to be accommodated within the permanent cadre strength of 135 posts. If they are in excess of the number then the excess will have to be accommodated in the promotional vacancies during the sub-sequent period commencing from 2 December, 1957 to 10 September, 1959.

Persons No. 1 to 164 in the Gradation List consist of persons who were allotted under the States Reorganisation Act on 1 Noveml>er, 1956. · The ranks of those 164 persons were determined in accordance with the final inter-State Seniority List. Persons No. 165 to 184 are promotees who were allotted to substantive vacancies arising from 1 November, 1956 to 1 Deceml>er, 1957 on the basis of their continuous service in the cadre.. There was no quota rule for the period 1 November,, 1956 to 1 December, 1957. Therefore, neither the promotions of those persons nor their relative seniority can l>e disturbed.

Persons No. 185 to 213 are promotees. Persons No. 214 to 236 are direct recruits. Persons No. 237 to 280 are also promotees. From 2 December, 1957 when the 1957 Recruitment Rules came ·into existence till 10 Septeml>er, 1959 when the 1959 Probafon Rules came into force the State prpmoted many persons from Class II. Two-thirds of the total vacancies for the period 2 December, 1957 to 10 September, 1959 weire promotional vacancies. Therefore, all persons promoted to those two-thirds vacancies cannot be disturbed. Those promotees who are in excess of the two thirds vacancies will be push_ed 'down to the vacancies in the .subsequent. period. _The remaining one-third vacancies were for d_1rect recr~1tment. Drrect recruits equal in number to those one-thrrd vacancies should · be placed next after the promotees placed in the first two-thirds vacancies

between 2 December, 1957 and 10 September. 1959. If direct re-emits are in excess of the quota they will similarly be shifted to the subsequent period.

The next period is from 11 September, 1959 to 26 October, 1964. From II September, 1959 the promotional vacancies became one-third and direct recruitment vacancies became two-thm:Is. The excess promotees during the previous period will be first absorbed in the proc10tional vacancies and thereafter promotees during the period will be absorbed. Again~ if there would be excess promotions they will be shifted to the following period. The important principle is .that as long as the quota rule remains neither promotccs can be allotted to any of the substantive vacancies of the quota of direct recruits .nor recruits can be allotted to promo-tional vacancies. The result is that direct recruitment vacancies between 11 September, 1959 and 26 October, 1964 cannot be occupi-ed by any promotees. The fact that direct recruits were confirmed on 26 October, .1964 will not rob the direct recruits of their quota which remained unfilled from 2 December, 1957. The Government confirmed. the direct recruits and the apflellants by adjustment of vacancies within their respective quota and deter-mined their seniority in accordance with Rule 2(b) of the Seniority Rules. Seniority is based on confirmation as full member of the service in the. substantive vacancy.

In S. C. Jaisinghani v. Union of India(1l) it was said that when the quota was fixed for the two sources of recruitment the quota could not be altered according to exigencies of the situation. It was held there that the promotees who had been promoted in excess of the prescribed quota should be held to have been illegally promoted. In Bishan Sarup's case (supra) it was held that when it was ascertained that not more than 1/3 of the vacancies were to go to th.e promotees and the rest to the direct recruits, the ratio was not made dependent on whether any direct recruit was appointed in any particular year or not. The promotees were entitled to 1/3 of the vacancies in any particular year, whether or not there was direct recruitment by competitive examination in that year.

Two principles are established in the decision referred to. One is that quotas which are fixed are unalterable .according to exigencies of situation. Quotas which arc fixed can only be altered by fresh determination of quotas under the relevant rule. The other is . that one group cannot claim the quota fixed for the other group either on the ground that the quofas are not filled up or on the ground that because there has been number in excess of quota the same shoul\:l be absorbed depriving the other group of quota. ·

In Bachan Singh & Anr. v. Union of.India & Ors.(2) the two appellants were promoted in the years 1958 and 1959: The respon-(1) [1967] 2 S. C. R 703. (2) [1972] 3 S. C.R. 898.

.dents were appointed by direct recruitment in 1962, 1963 and 1964 The respondents were confirmed in their posts before the appellants.· The appellants contended that the respondents who were directly ap· pointed after the appellants had been promoted werf< not to be confirm-ed in permanent posts before the appel!ants. It was held that the direct recruits were confirmed against permanent vacancies within their quota. The earlier confirmation of direct recruits though appointed later was upheld oi1 the ground that they fell within their quota of permanent vacancies.

Subraman:s case (supra) on which the appellants relied also held· that each quota would have to be worked independently on its own force. In· that case the Assistant Executive Engineers who were initially entitled to 3/4th and subsequently to- 2/3rd of the vaGUncie& while Assistant Engineers who were entitled initially to 1/4th and subsequently to l/3r\I of such vacancies were held to be entitled ta their respective quotas independent of the fact whether any person from one class or the other was promoted or not. It was illustrated by saying that if 'there were three vacancies in year, two would go to the Assistant Executive Engineers and one would go to the Assistant Engineers and even if there were not eligible Assistant Executive Engineers who could be promoted to fill in two vacancies. belonging to their quota, one vacancy is to be filled up by promotion of an Assistant Engineer, if he was eligible. Similarly, if two vacancies belonging to the quota of Assistant Executive Engineers are to be filled by Assistant Engineer for want of availability of eligible · Assistant Executive Engineers the appointment of Assistant Engineers to fill in those two vacancies would bei irregular because they would have to be pushed down to later years when their appointment could be regularised as result of absorption in their lawful quota for those years. · For the foregoing reasons, we hold th.at the respondents No. 2 to 24 were entitled to the vacancies within their quota which had not been filled up and they are senior to the appellants. We affirm the judgment of the High Court and dismiss the appeals. Parties will pay and bear their own costs in these appeals.

Appeals dismissed.