Full Judgment
2. The applicants pray of a direction to refix their seniority following the rota rule prescribed under the Recruitment Rules for the post of Sub-Inspector of Police and set aside the said Seniority List.
3. It is submitted that according to the Recruitment Rules framed for the post of Sub-Inspector of Police framed in G.O. Ms. No. 30 dated 11.6.1984 (Annexure A-3) the post of Sub-Inspector of Police is to be filled up by promoption/direct recruitment in the ratio of 1:1.
Promotion is to be made from regular Assistant Sub-Inspectors of Police/Assistant Sub-Inspector of Police (Cyber) who have completed three years of continuous service and regular Head Constables/Head Constables (Wireless and Driver) who have completed six years of continuous service or by transfer from regular Sub-Inspector (Cyber) subject to suitability to the post. In the batch of appointments made in the year 1991 both by promotion and direct recruitment upto the date of appointment of the applicants i.e. 13.4.1981 (applicant in O.A.452/2003) and 15.7.1991 (applicant in O.A. 453/2003), besides the applicant three persons were appointed by promotion as Sub-Inspector of Police, namely Munusamy, Radjou Kousalavan and V.K. Achuthan and five persons were appointed my direct recruitment namely, Chinta Kothandaraman, V. Balakrishnan, K. Murugavel, N. Selvam and C. Nallam Krishnaraya Babu in respect of O.A. 452/2003. Besides the applicant in O.A. 453 of 2003, five persons were appointed by promotion and nine persons were appointed by direct recruitment. It may thus be seen that appointments were made in the year 1991 by both the methods. The rules regulating fixation of seniority are contained in Govt. of India, Department of Personnel and Training Office Memo No. 22011/7/88-Estt(D) dated 3.7.1986 (Annexure A-6). According to which, the relative seniority of direct recruits and promotees shall be determined according to rotation of vacancies based on the quota of vacancies reserved in the Recruitment Rules. Paragraph 2.4.2 of the said O.M.provides that if adequate number of direct recruits do not become available in a particular year, rotation of quotas for the purpose of determining seniority would take place only to the extent of the available direct recruits and promotees. Having regard to the fact that the promotees and direct recruits have been appointed in the same recruitment year, namely 1991 the seniority of the applicants vis-a-vis the private respondents ought to have been fixed under the principle enunciated in Paragraph 2.4.2. of the above said O.M. The respondents without following the quota rule have bunched the direct recruits between S. Nos. 149 and 154 and between 158 and 160 and the promotees between S.Nos. 155 and 157, 161 and 162 in the impugned seniority list.
The respondents ought to have fixed the seniority of the promotees interlining them between the direct recruits shown at S. Nos. 149 to 154 and if it was done, the applicants would have got a seniority next above the third respondent herein. A tentative seniority list was issued on 27.2.2002 by the respondents whereupon, the applicants submitted their objection on 7.3.2002. Thereafter, the Department have issued a revised tentative seniority list on 14.4.2002 following the correct principle. For the reasons not known to them, in the final seniority list issued vide the impugned order, the respondents have fixed their seniority in an arbitrary and unfair manner. It is the case of the applicants that time and again, it has been held by the Apex Court that when quota is prescribed in the Recruitment Rules, a rule of seniority by rotating the vacancies is a valid rule of seniority, unless there is collapse of the quota rule in a particular year.
Therefore, it is absolutely no justification for deviation from the rota rule in fixation of seniority in the impugned seniority list.
4. The respondents in their reply admitted, the rule position and that the procedure according to the rule has been followed by maintaining a rotation roster upto seniority No. 109. Thereafter, they averred that the conduct of the direct recruitment and promotion did not take place simultaneously in the same recruitment year. Few vacancies that arose thereafter were filled up by direct recruitment in the years 1986 and 1987 and promotions were given only in the year 1988. Nine persons were appointed as Sub-Inspector of Police by direct recruitment in the year 1986 and eight persons were appointed as direct recruits in the year 1987 and sixteen persons were appointed by promotion in the year 1988.
It is stated that another final seniority list from S. Nos. 110 to 147 was issued vide order dated 3.9.2001 where the rule of rotation was not followed. The reason for this deviation was that the Department has failed to fill up the vacancies as per the quota rule continuously.
Therefore, the general principle of placing the persons appointed from earlier selection list over and above the persons appointed from subsequent list was followed. However, it is the contention of the respondents that the final Seniority List of Sub-Inspector of Police appointed from seniority Nos. 110 to 147 has not been challenged by any one. According to the respondents, the Department has taken steps to issue tentative seniority list of persons appointed after 1988 vide memo dated 14.5.2002 wherein the seniority has been assigned with reference to rotation roster upto 1991 and thereafter in the order of merit. Objections were filed by some of the Sub-Inspectors and were examined in consultation with the Law Department and the final Seniority List was issued assigning the seniority based on the date of selection and appointment/promotion vide order dated 22.8.2002 which is challenged in these applications. The respondents submitted that the Department could not follow the quota rule during the years 1986 to 1988 and therefore the seniority was fixed as per the direction of the Supreme Court in the case of Direct Recruitment Class II Engineering Officers Association and Ors. v. State of Maharashtra and Ors., AIR 1990SC 1607=1990(2) SLJ 40 (SC). The principle laid down in that case is that in case the quota rule is not followed continuously for a number of years because it was impossible to do so, the inference is irresistible that the quota rule had broken down. The same analysis was followed in fixing the seniority of Sub-Inspector of Police appointed during 1991 and thereafter, as year-wise vacancies for direct recruits and promotees were not filled up as per the quota rule. It is submitted that eight posts of Sub-Inspector were considered for direct recruitment on 14.3.1991 and eight posts by promotion for which the selection was conducted on 1.4.1991. Seven persons were selected and the DPC decided to keep one vacancy unfilled. Out of the eight persons selected by direct recruitment vacancies, five were appointed in March and remaining three in July 1991. Similarly, out of the 7 candidates selected under the promotion quota, three were appointed in April 1991 and four in July 1991. As such, the quota rule could not be followed in 1991 when appointments were made both by direct recruitment and promotion. As a consequence, the proposition laid down by the Supreme Court in the case of Direct Recruitment Class-II Engineering Officers Association's case has been followed for fixing the final seniority list. The same principle has been followed in the seniority list of 1986, 1987 and 1988 at S. Nos. 110 to 147 which has been accepted by the individuals. Having adopted the same principle for 1991 based on the direction of the Supreme Court, the respondents submitted that their action is valid and the applicants would not be entitled to the relief prayed for.
5. The third respondent has also filed a reply in which it is contended that the applicants having been appointed as ad hoc Sub-Inspectors of Police during the year 1991and subsequently regularised during 1993 cannot claim seniority over the direct recruits appointed in the year 1991. As such, these applications are not maintainable. Only the quota rule has been prescribed in the rules and no rota has been prescribed.
The Department has failed to fill up the posts as per quota rule, as the same had broken down, the seniority was assigned based on their selection and appointment i.e. persons selected by direct recruitment by the Department Recruitment Committee/Departmental Promotion Committee were placed over and above the persons promoted by the subsequent selection. It is also submitted that the earlier seniority list was also finalised without following the quota rule which was accepted by the concerned persons. The third respondent also submitted that they were selected against the vacancies notified in 1989 though the selection was completed on 14.3.1991, the date on which the DPC met and selected promotees. As such, it is submitted that the seniority list shows the correct position and prepared according to the judgment of the Supreme Court referred to after taking into consideration the objections raised. There is no arbitrariness or violation of rules and the applications have to be dismissed.
6. The fourth, fifth and sixth respondents have also filed their reply on the same lines that the seniority list that has been challenged is in the order of merit in which they were selected by the Departmental Recruitment Committee/Departmental Promotion Committee since the quota rule has broken down and that the action of the respondents is in accordance with the principles laid down by the Apex Court.
7. We heard the learned Counsel for the parties and perused the materials on record.
8. Learned Counsel for the applicants stoutly denied the contention of the respondents that the quota rule has broken down. Learned Counsel relied on the judgment of the Apex Court in the Direct Recruitment Class II Engineering Officers Association and Ors. v. State of Maharashtra and Ors. (supra) wherein the Apex Court laid down the principles regarding determination of seniority when recruitment is made from two sources according to the quota prescribed. The principles elucidated in the judgment are as follows: "Where appointments are made from more then one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly. But if it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down. Where the quota rule has broken down and the appointment are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees from the other source inducted in the service it a later date." Learned Counsel therefore argued that the ratio followed by the Supreme Court in the above judgment was that if rules are framed in this regard for determining seniority, they must ordinarily be followed strictly.
The second limb of the above judgment is that the quota rule can be inferred to be broken down only if it is not followed continuously for a number of years because it was impossible to do so. In the instant case, learned Counsel submitted that both these conditions are not satisfied. There are general orders issued by the Department of Personnel and Training regarding determination of relative seniority of direct recruits and promotees. These instructions have been consolidated and issued in the O.M. dated 3.7.1986 of the DOPT and are available in Swamy's Hand Book. According to Paragraph 2.4.1 of the above instructions, the relative seniority of direct recruits and promotees shall be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on quota of vacancies for the direct recruitment and promotions respectively in the Recruitment Rules. The Recruitment Rules of Government of Pondicherry, Police Department Group 'C' and Group 'D' posts, 1984 prescribe the method of recruitment /selection of Sub-Inspector of Police as by promotion/direct recruitment in the ratio of 1:1. Since the rules and instructions provide for quota and rota rules the Department should have followed the rules strictly. The Department has claimed that the quota rule could not be followed, but it is the responsibility of the department to establish that it was impossible to do so. Merely because, the Department did not follow the rules or Procedure, they cannot claim that the rule has broken down. This position has been further confirmed by the judgment of the Supreme Court in the case of U.P. Secretariat U.D.A. Association through its Joint Secretary, G.C.Srivastava and Ors. v. State of U.P. and Ors., 1997 Lab. I.C. 1021, wherein the Court held that "necessarily, the quota and rota require to be maintained so as to give effect to the object envisaged under the Rules. Mere inaction cannot be made the ground to contend that quota rule had broken down." In the instant case, the respondents could not take this plea as both direct recruitment and promotions were resorted to in the year 1991. As against the promotion quota, four persons were appointed by promotion and five persons by direct recruitment. If the entire strength of the cadre is taken into account, according to the information available with the applicants, there are 39 direct recruits and 38 promotees. Therefore, the argument of the respondents that quota rule has not been followed and therefore the rota could not be applied in seniority is not tenable. Learned Counsel relied on the judgment of the Supreme Court reported in AIR 2001 SC 1702=2001(3) SLJ 58 (SC) in the case of Union of India and Anr. v. Lalita S. Rao and Ors., wherein the question of inter se seniority between Medical Officers recruited by the Railways through UPSC and those who were appointed on ad-hoc basis and then regularised in consultation with the UPSC was considered. It was held that those Doctors who have been appointed by the Railway. Administration on ad hoc basis and got themselves regularised prior to a cut off date, the period prior to their regularisation should be counted on determining the seniority applying the principle (B) of the Direct Recruit Engineering Officers Association case. Principle (B) is that" if the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted." Learned Counsel further submitted that the instructions provided for determination of the relative seniority of direct recruits and the promotees and the principles that have been laid down are very clear in the Govt. of India order in Paragraphs 2.4.1. and 2.4.4. of the O.M. referred to above. The action of the respondents giving a go by to the instructions cannot be justified as per the relevant rules. Even if the argument of the respondents is that the vacancies filled up by direct recruitment are carry forward vacancies of promotion since the quota rule has broken down, the direct recruits selected against the carry forward vacancies have to be placed en block below the last promotee in the seniority list based on the rotation of vacancies for that year. This has been elaborately illustrated in Paragraph 2.4.2 of the said instructions. In short, the principle adopted by the respondents is against all principles eununciated in the orders of fixation of seniority of the Govt. of India and the law settled by the Supreme Court. Learned Counsel also brought to our notice that the Department is going ahead with the promotion to the rank of Inspector of Police from the impugned seniority list despite the pendency of the O.A. They have issued orders promoting five persons on ad hoc basis to the rank of Inspector of Police vide order dated 22.11.2004.
9. Learned Counsel for the official respondents refuting the arguments of the applicant's Counsel also relied on the judgment of the Supreme Court in the Direct Recruit Class II Engineering Service Association case to establish that when the vacancies are not filled up as per the quota rule, seniority also could not be fixed as per the rota rule.
Learned Counsel maintained the position that quota rule has broken down. Therefore, the action of the respondents in fixing the seniority was in accordance with the principles (E) enunciated in the above judgment, which is extracted below: "Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date." The quota rule was not followed in the Department during 1986 to 1988 and the same general principle of placing the persons appointed from earlier selection list over and above the persons appointed from subsequent selection was followed and the final seniority list of Sub-Inspector of Police appointed from seniority Nos. 110 to 147 in accordance with the above principle has not been challenged by any one.
The same analogy was followed in fixing the seniority of Sub-Inspector of Police appointed during 1991 and thereafter, thereby the direct recruitment were not filled up as per the quota rule. Learned Counsel for the official respondents relied on the recent judgment of the Supreme Court, 2004 LAB I.C. 2414=2004(3) SLJ 125 (SC) in the case of M. Subba Reddy and Anr. v. A.P. State Road Transport Corporation and Ors., wherein it has been held that when a quota is fixed for direct recruitment and promotees and the post which is reserved for direct recruits is filled by promotee, he cannot claim seniority from the date he was temporarily promoted and in view of the inbuilt quota rule contained in the regulations placing him below direct recruit in seniority was not invalid. Learned Counsel argued if any other principle is followed in subsequent promotion it would result in unsettling the settled seniority position of the cadre.
10. Learned Counsel for the private respondents also put forth their argument on the same line relying on the judgment of the Supreme Court in Direct Recruits Class II Engineering Service Association case.
11. We have considered the arguments of learned Counsel for the parties and perused the judgments relied on by them.
12. The principle of determination of seniority between direct recruits and promotees has been adjudicated at length in various Courts and Tribunals. Various judgments have followed the principle uphold by the Supreme Court in Direct Recruits case and applied to the particular facts of the cases. By and large, the same principle have been elaborated by Courts and Tribunals and thereby become settled law in the matter. Both parties in this case have relied on the Direct Recruits Class II Engineering Service Association case. We reproduce below the broad principle laid down in that case: (a) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stopgap arrangement, the officiation in such post cannot be taken into account for considering the seniority.
(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted.
(C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly.
(D) If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down.
(E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below appointees from the other source inducted in the service at a later date.
(F) Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule.
(G) The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the subject.
(H) If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the executive instruction has ceased to remain operative." The main point on which the respondents justified their action is that it is in accordance with the principle (D) namely that it was impossible to adhere to the existing quota rule and that quota rule has broken down since 1982. The applicants had attacked this position on the ground that the respondents have not produced any evidence to show that it was impossible for them to follow the quota rule. The mere fact that they did not choose to follow the quota rule cannot confer on them the right to disturb the seniority under the rota rule. They buttress their argument by quoting the judgment in the case of M. Subba Reddy and Anr. v. A.P. State Road Transport Corporation and Ors. (supra) wherein the Supreme Court held as follows: "It has been further held that the rule of quota is a statutory rule and must be strictly implemented. The result of punishing down the promotees may work hardship but it is unavoidable as it would nullify otherwise the statutory rules. In the case of U.P. Secretariat U.D.A. Association (supra), it has been held by this Court that mere inaction on the part of the Government cannot be made a ground to contend that the quota rule has broken down. In the present case, in the absence of direct recruitment, the appellants could not have got seniority over direct recruits. Where there is inaction on the part of the Government or employer or imposed ban on direct recruitment, in filling up the posts meant for direct recruits, it cannot be held that the quota has broken down." 13. In the light of the above submission, the main issue to be decided in this case is to examine whether the quota rule has actually broken down or not. As already stated earlier, Recruitment Rules for the post of Sub-Inspector of the Police was framed by the Police Department which states that the post is to be filled up by promotion/direct recruitment in the ratio of 1:1. There is no dispute regarding how the seniority to be followed since the Govt. of India O.M. dated 3.7.1986 is very clear in this aspect. Paragraph 2.4.1. of the said O.A. is reproduced below: "The relative seniority of direct recruits and promotees shall be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on the quota of vacancies reserved for direct recruitment and promotion respectively in the Recruitment Rules." According to the reply statement of the respondents it is admitted that the rotation roster was maintained in the Department and the vacancies were filled up against the respective quota. This procedure was continued upto the seniority No. 109 in the list published vide order dated 16.6.1988. In the year 1986, nine persons were appointed by direct recruitment and eight persons were appointed against direct recruitment in 1987. Sixteen persons were appointed by promotion in the year 1988. Another seniority list was issued on 3.9.2001 from the S.Nos. 110 to 147 and in this list direct recruits and promotees were not in the ratio of 1:1 but placing persons from earlier selection list over and above the persons appointed in the subsequent list. This list was not challenged by any one. Another tentative seniority list was published vide order dated 14.5.2002 for persons appointed after 1988.
This was with reference to the rotation roster. Objections were raised from some of the Sub-Inspector of Police and they were examined in consultation with the Law Ministry and the seniority assigned in the tentative seniority list was revised referring to the same principle above holding that the quota rule has broken down and the final seniority list was issued vide order dated 22.8.2002 which has now been challenged in this O.A.14. From the above narration of events given by the respondents, it is clear that the respondents have resorted to only one method of recruitment from the year 1986 onwards. Direct recruitment was resorted to in 1986 and 1987, by appointing nine persons in 1986 and eight persons in 1987. In 1988 sixteen persons were appointed by promotion and there was no direct recruitment. There is no information about the total number of vacancies year-wise and whether the respondents had filled up the vacancies by the single method of recruitment or carried forward the remaining vacancies. From the final seniority list issued on 3.9.2001 for the recruitments made upto 1988, the respondents did not follow the rota rule of seniority taking the plea that the quota rule has broken down. This decision was covered by the judgment of the Supreme Court in the Direct Recruit Class II Engineering Service Association case which deals with a situation where quota rule has broken down and regular promotees whose service are regularised are posted in the direct recruitment quota. Whereas in this case, the respondents have resorted to direct recruitment in two years and only promotion in the next year. There no indication whether the promotees of 1988 were posted in the direct recruitment vacancies of the previous year or they were carry forward vacancies of promotees in the previous year. It is not possible to arrive at any conclusion since the year-wise vacancy position has not been brought out. But from the facts that the said seniority list was not challenged, it can be inferred that there is no encroachment from the quota by one or the other. It cannot therefore be said that the quota rule has broken down. This was the peculiar situation relating to the previous recruitment. In this case we are concerned with the recruitment made in 1991. It is an admitted fact that both the Departmental Recruitment Committee and the Departmental Promotion Committee met in the same year and according to the submission of the respondents themselves, eight candidates were selected in the order of merit in the direct recruitment in which the respondents 3, 4 and 5 figured at S. Nos. 1, 2 and 3 and eight posts were filled up by promotion by the DPC in which the applicants figured at S. Nos. 2 and 4. The Departmental Recruitment Committee met on 14,3.1991 and the DPC met on 1.4.1991. The respondents state that even though the Departmental Recruitment Committee met on 14.3.1991, five candidates were appointed in March 1991 and the remaining three candidates in July 1991. In the case of promotees, there were given ad hoc appointment in April 1991 and the remaining were appointed in July 1991. Since the candidates joined on different dates, the respondents contended that the quota rule has broken down. This is a very frivolous argument. When both the Committees met in the same year within a gap of 15 days and had selected eight candidates each on the basis of the 50% quota of direct recruitment and promotees, it is not for the respondents to contend that the quota rule was not followed. When candidates were selected in the order of merit by a Selection Committee there are well established rule providing that their seniority will be on the basis of their merit indicated in the selection list and not on the date of joining. In fact, the Department had issued the tentative seniority list based on the correct principle but had later revised this seniority on the objection raised by the direct recruit candidates who had joined later in July 1991. Departmental files were produced by the respondents and we have perused the same. It is seen therefrom when the objections were filed by the direct recruits, the matter was referred to the Law Departmental and that Department had asked for clarification regarding the vacancy position and the reason for not appointing all the candidates immediately even though vacancies existed between the period 1989 and 2002. However, the Department did not submit the required clarification. As correct information was not available, the Law Department held that the quota rule has broken down even in the year 1991 and as a consequence the proposition laid down by the Supreme Court in the Direct Recruits case has to be followed in the present proposal also and the tentative seniority list was issued and then finalised. Then, again objections were received on the final seniority list and were referred to Law Department. They reiterated the position that their earlier advice pertains to the appointments made during the years 1986, 1987 and 1988 and for the appointment made in the year 1991, since the required information have not been forthcoming, they had no option than to advise that the same proposition may be followed and now that the matter has been challenged before the CAT, Madras it would be only prodent to await the findings of the Tribunal. Thus, it was clear that the respondents have not examined the issue properly in the light of the relevant rules and instructions and had mechanically applied the earlier advise of the Law Department given in a different context. The Supreme Court in Suraj Parkash Gupta and Ors. v. State of J.&K. and Ors., 2004(4) SLR 486 has elaborately dealt with the point concerning the question as to when the quota rule can be said to have broken down. Paragraphs 31 to 33 of the judgment are relevant in this regard are extracted below: "31. This point concerns the question as to whether the quota rule has broken down and whether there is a quota rota rule. The High Court Held it did not.
32. Reliance is placed by the promotees on the decision of the Constitution Bench in Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra, 1990(2) SCC 715. It was laid down in propositions D & E as follows: "(D) If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it is impossible to do so, the inference is irresistible that the quota rule had broken down.
(E) When the quota rules has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date." The above decision deals with a situation where the quota rule has broken down and regular promotees whose service are regularised are posted in the direct recruitment quota. In that event, it is permissible to count that service for purpose of seniority of the promotee. But, that is the position' when the quota rule breaks down.
33. On the question of breakdown of quota rule, except the lethargy of the State Government and its inaction and its not asking the Service Commission to make direct recruitment, no other cause is visible. The Cabinet not only stated that because reference to PSC would take a long time, the ad hoc services of promotees were to be regularised. The delay on part of the Government appears to us to be motivated for the purpose of blocking the quota of the direct recruits and giving a part of it to promotees. We have noticed that when a very belated decision was taken to make direct recruitment, the same was restricted to 10% rather than to the statutory quota of 20%. This attitude on the part of the State was not reasonable." Applying this observation in this case, it can be seen that there has been no break down of quota rule in the year 1991. The same appears to be the position prior to 1989 also but in the absence of any information regarding vacancy position etc., we do hot like to draw any conclusions for the above period. Moreover, the question here relates only to the year 1991. Even considering that the quota rule had broken down earlier, it is not necessary that it should always be construed as brokendown for ever. Once the rule has been prescribed, it is the responsibility of the Department to adhere to the same and as stated in proposition (D) by the Supreme Court in Direct Recruit Class II Engineering Service Association case.
If it becomes impossible to adhere to the existing rule, it should be substituted by an appropriate rule to meet the needs of the situation.
As long as the rule remains in the Statute Book, it has to be followed strictly. When this has not been done, mere inaction of the Department in not resorting to either direct recruitment or promotion does not entitle the respondents to give a go by to the rota rule of seniority.
The rules regarding seniority are clearly laid down and covers all situations including the contingencies. When the Department is not in a position to fill up the vacancies by either method or when vacancies have to be carried forward, the respondents should have applied all such instructions, which they failed to do. In fact, it comes to light from the record that the direct recruitment conducted in 1991 was for the vacancies of 1989. If it were so, these vacancies should have been added to the vacancies for the year 1991 and the additional direct recruits selected against the carried forward vacancies of the previous year would have to be placed en block below the last promotee or direct recruit in the seniority list based on the rotation of vacancies for that year as per Paragraph 2.4.2 of the Govt. of India instructions dated 3.7.1986.
15. The contention of the respondents regarding break down of quota rule is also not tenable on another ground as they have conducted direct recruitment in 1986 and 1987 and also in the year 1991. It was only in 1988 that they resorted to promotion alone. Even in that year, it is not the case of the respondents that promotions were given in the direct recruitment vacancies. The vacancies of direct recruitment of 1989 were carried over and filled up in 1991. Thus, if at all there was a backlog it has been more in the case of promotion than in direct recruitment. Normally, delay occurs in direct recruitment Which is to be conducted by other recruiting agencies like Public Service Commissioner etc. Since promotions have to be made within the Department itself, it is the responsibility of the Department to conduct the meetings of the Promotion Committees in time. Therefore, it is the mere inaction of the Department which is responsible for this state of affairs. As such the proposition of the Apex Court in the Direct Recruits case are not applicable for determination of seniority on the ground taken i.e. breakdown of quota rule. As stated earlier, a perusal of the Departmental files also makes it clear that there has been no proper application of mind in applying the principle of seniority in the instant case. Learned Counsel for the respondents argued that if the same principle that is adopted for the finalisation of the seniority list published in order dated 3.9.2001 is not adopted, it will result in unsettling the settled state of affairs. This argument cannot be accepted as the appointments made in the year 1991 are on a different footing when compared to the situation prevailing in 1988 which seniority also has since been finalised in 2001 only. If the respondents are of the view that quota rule is not implementable for any reason, they should have got the rule amended. This has not been done. It appears that there is no such difficulty in implmenting the rule. In fact, the 1991 recruitment was done in accordance with the quota rule and therefore, the respondents are bound to adopt the rota rule in seniority. As the seniority itself has been finalised after a period of ten years, the argument that the settled seniority position will be affected is not acceptable. The action of the respondents is in contravention of the Govt. of India instructions dated 3.7.1986 on determination of seniority between direct recruits and promotees and also not tenable in law. The applicants have made out a case for themselves and the relief prayed for has to be granted. Accordingly, we set aside the seniority list published in Order No.A.2/3-3/Estt.1/Pol/2002 dated 22.8.2002 and direct the first and second respondents to recast the seniority of the applicants following the rota rule enunciated in Paragraphs 2.4.1, to 2.4.4. of the Govt. of India, Department of Personnel and Training instructions dated 3.7.1986 after following due procedure by giving notice to the affected individuals.