PETITIONER:
CONAL BIHIMAPPA
Vs.
RESPONDENT:
STATE OF KARNATAKA & ORS.
DATE OF JUDGMENT11/08/1987
BENCH:
MISRA RANGNATH
DUTT, M.M. (J)
CITATION:
1987 AIR 2359 1987 SCR (3) 885
1987 SCC Supl. 207 JT 1987 (3) 321
1987 SCALE (2)323
ACT
Inter se seniority between direct recruits and promotees amongst the officers of the Karnataka Administrative Service--Dispute relating to.
HEADNOTE
Under the relevant Recruitment Rules relating to Class I junior scale posts, there was a quota system--two-thirds of the vacancies had to be filled up by promotion by selection from Class II officers and the remaining one-third by direct recruitment by competitive examination to be held by Public Service Commission.
When direct recruitment was not made timely as envisaged by the scheme in the Rules, officiating promotions were given in respect of the posts covered by the direct recruit quota. Such temporary promotions remained effective for a number of years and later when the vacancies within the direct recruitment quota were filled up, the appointments made in the later years were deemed to carry weightage for seniority on the footing of deemed filling up when the vacancies had arisen. Thus, the dispute as to seniority inter se between those who had manned the promotional posts beyond 2/3rds limit and the direct recruits subsequently appointed, arose for judicial determination. This Court in V.P. Badami, etc. v. State of Mysore and Ors., [1976] 1 SCR 313 had dealt with a similar situation with reference to the same set of rules, and with a view to implementing the rule of this Court in Badami’s case, the State government had issued an official memorandum on 5.7.75, laying down guidelines for determination of the seniority between the direct recruits and promotees, and accordingly, gradation list of the junior scale officers as on 30.6.73 was drawn up, and notified on 10.8.75. By a later notification dated 2.2.77, a further gradation list was published. Then, on a representation by the 1974 batch of direct recruits for refixation of inter se seniority in the gradation list taking into account the carried forward vacancies, the State Government made an order on 22.5.80 to the effect that the 1974 batch of direct recruits should be shown immediately below serial number 64 and above serial number 65 in the continuation gradation list published on 2.2.77. 886
Aggrieved by this government direction, some promotees moved the High Court under Article 226 of the Constitution for protection of their seniority, and aggrieved by the decision of the High Court, both, the direct recruits and promotees moved this Court for relief by appeals by special leave and writ petitions. The promotees challenged the propriety of the direction of the High Court to modify the gradation list by applying the quota rule, while the direct recruits sought to have full application of the quota rule instead of the limitation of three years, and the consequential benefits.
Allowing the appeals and the writ petitions of the direct recruits and dismissing the appeals by the promotees, the Court,
HELD: The rule of this court in V.P. Badami, etc. v. State of Mysore and others, [1976] 1 SCR 313 has to be given full effect. The appeals and writ petitions of the direct recruits have to succeed and those by the promotees have to fail. The Court hopes the State of Karnataka will not demote anyone who has been in a promotional post for several years in the Class II service as a consequence of this decision, but the gradation list has got to be adjusted to fit into the principles indicated in the judgment. No justification was shown as to why the State of Karnataka failed to comply with its obligation of making recruitments in accordance with the quota system. Once the State frames rules, the rules are binding on the State, and like individuals, the State has got to resulate its conduct in accordance with the rules; in fact, the State has to observe them all the more. The Court hopes that the State of Karnataka in the years ahead will comply with the quota rule with regularity so that a litigation of this type may not arise again. [907D-F]
Upon a suggestion of the Court, counsel for the parties filed charts, containing recast gradation list on the basis of the claims advanced before the Court---showing (1) how it would be when the full claim of the promotees was granted and (2) how different it would look when the total claim of the direct recruits was allowed, and the Court notices that the process of pushing up and down would be inevitable, but would be within reasonable limits and no irreparable prejudice was apparent. [907H; 908A-B]
OBSERVATION: The Court was struck by the innumerable rules framed within a period of about thirty years to cover the field relating to constitution, recruitment and provision for other conditions of service. It is proper that service rules should be simple, making
887 reasonable provision for necessary aspects. While framing such rules, the relevant provisions of the Constitution and the laws in force hove to be kept in view. There should be no frequent alteration of the service rules. Exigencies of circumstances and unforeseen situations will certainly justify alterations. Those would be indeed rare occations. [905H; 906A-B]
Experience shows that legal battles are fought in court between Government servants--whether an individual pitched against an individual or a group against a group; this embitters relationship inter se and often results in a switch-over of attention from public duty to personal cause. Frequent litigations against the State or the higher authorities in the hierarchies of administration wipe out reverence, loyalty and the sense of discipline, and substitute these by anger, disrespect and ram:our. In the process, fellow-feeling is lost and the sense of brotherhood vanishes. The net result of all this is the deprivation of the efficiency of the bureaucratic community to serve the society. The undue growth of service litigation within the four decades of independence clearly calls for these observations. As and when the occasion has arisen, the Court has sought to draw the attention of the State as the ’ employer as also the government servants to this aspect of the matter. This has been done not with a view to subjecting any litigant to undue criticism but with the fond hope that it would help the problem to receive adequate attention. The Court is surprised that the words spelt out in the different judgments have fallen on deaf ears. Thereby the most powerful wing in the administrative set up is gradually moving away from its designated path. There have been cases where officers have been in court, litigating over service disputes for about twenty-five to thirty years of their career, which would mean almost three-fourth of their service period. What would be the contribution of such officers to the public service, can be well imagined. Very often a public officer is forced into litigation as he gets no justice from his superior. There are also several instances where an officer drags the employee into litigation without a cause of action. These are matters which must be taken into account without further loss of time and with fortitude so that the most effective wing of the administration does not further lose its service ability. [906B-G]
A public servant is in the position of a trustee. Social power vests in him for rendering service to the community. Every public servant has to be cognizant to that obligation. Once the level of that consciousness grows up, there is bound to be a corresponding fail in the attitude 888 to litigate over small issues. It is for the privileged public servant as also his employer to share this philosophy. [906H; 907C]
V.P. Badami, etc. v. State of Mysore & Ors., [1976] 1 SCR 313; M.G. Kadali v. State of Karnataka & Ors., [1982] 2 K.L.J. 453; N.C. Sharma v. Municipal Corporation of Delhi & Ors., [1983] 3 SCR 372; S.G. Jaisinghani v. Union of India & Ors., [1967] 2 SCR 703; Bishan Sarup’s case, [1973] Suppl SCR 491; Bachan Singh & Anr. v. Union of India & Ors., [1972] 3 SCR 390; Sabraman’s case, [1972] 2 SCR 979; Col. A.S. Iyer & Ors. v. V. Balasubramanyam & Ors., [1980] 1 SCR 1036; P.S. Sahal & Ors. v. Union of India, [1983] 2 SCR 165; A. Janardhana v. Union of India & Ors., [1983] 2 SCR 165; S.S. Lamba and Ors. v. Union of India and Ors., [1985] 3 SCR 431; G.P. Doval and Ors. v. Chief Secretary, Government of UP and Ors., [1983] 1 SCR 70; O.P. Singla and Anr., etc. v. Union of India and Ors., [1985] 1 SCR 351; D.S. Nakara and Ors. v. Union of India, [1983] 2 SCR 165; N.K. Chandan & Ors. v. State of Gujarat, [1977] 1 SCR 1037; Karam Pal v. Union of India, [1985] 3 SCR 271 and Dr. T.C. Siddapparadhya
JUDGMENT
&
ORIGINAL/APPELLATE JURISDICTION: Writ Petition (Civil) No. 811 of 1986 etc. etc. (Under Article 32 of the Constitution of India).
F.S. Nariman, G.L. Sanghi, S.N. Kacker, R.C. Kaushik, D.K. Garg, Mohan Katarki, S.S. Javali, Ravi P. Wadhwani, C.S. Vaidyanathan, K.V. Mohan, S. Ravindra Bhatt, P. Chowdhry, S.R. Setia and Mukul Mudgal for the Petitioner/Appellant.
G. Ramaswamy, Additional Solicitor General, B.R.L. Iyengar, M. Veerappa and Ashok Sharma for the Respondents. The Judgment of the Court was delivered by
RANGANATH MISRA, J. The obstinate problem of inter se seniority, this time amongst officers in the Karnataka Administrative Service has fallen for determination in this group of appeals by special leave and writ petitions under Article 32 of the Constitution at the instance of both direct recruits and promotees.
It is not disputed that under the relevant Recruitment Rules of 1957 in regard to Class I Junior Scale posts there was a quota system--
889 two-thirds of the vacancies had to be filled up by promotion by selection from Class II Officers and the remaining onethird by direct recruitment by competitive examination to be held by the Public Service Commission. When direct recruitment had not been made timely as envisaged by the scheme in the Rules officiating promotions were given in respect of posts covered by the direct recruit quota. Such temporary promotions remained effective for a number of years sometimes varying between 5 and 8--and later when the vacancies within the direct recruitment quota were filled up, the appointments made in latter years were deemed to carry weightage for seniority on the footing of deemed filling up when vacancies had arisen. Thus the dispute as to seniority inter se between those who had manned the promotional posts beyond the 2 3rds limit and the direct recruits subsequently appointed has come for judicial determination.
A three-Judge Bench of this Court in V.P. Badami etc. v. State of Mysore & Ors., [1976] 1 SCR 315 dealt with a situation of this type with reference to the same set of Rules. A similar dispute came before the Karnataka High Court in a bunch of writ petitions filed both by promotees and direct recruits and in view of common questions of fact and law involved therein, the High Court disposed them by a common leading judgment in the case of M.G. Kadali v. State of Karnataka & Ors., [1982] 2 KLJ 453. The High Court noticed the ratio in Badami’s case and found that with a view to implementing the rule in Badami’s case, the State Government issued an official memorandum on 5.7.1976. laying down guidelines for determination of seniority between the direct recruits and promotees. The Gradation List of Junior Scale officers as on 30.6.1973 was drawn up following such guideline and was notified on 10.8.1976 with the following explanatory cover note:
(i) Between 2.12.1957 and 10.9.1959, the
number of substantive vacancies were thirty-
nine and of those, twenty-six were promotional
and thirteen were the share of direct re-
cruits. The first fifteen of the promotional
posts were given to allottees and the remain-
ing eleven to promotees. In the absence of
direct recruitment, these thirteen posts were
carried forward;
(ii) Between 11.9.1959 and 26.10.1964 (when
1962 direct recruits became due for
promotion), the vacancies were seventy-six, of
which fiftyone were available for direct
recruits and twentyfive for promotees in view
of the change in the proportion in the 1959
Rules. Twentythree substantive vacancies were
given to direct
890
recruits of 1962. The net result, therefore,
was 13 direct recruit posts of the earlier
period and twentyeight of this period were
carried forward;
(iii) After October 1964, the vacancies were
classified on annual basis. Upto 7.10.1971,
sixty vacancies were filled up by promotion.
As noticed earlier fortyone direct recruits
vacancies had been carried forward and thirty-
five fresh vacancies were available to direct
recruits. Eleven vacancies were filled up by
direct recruitment and sixtyfive were carried
forward.
By a latter notification dated 2.2. 197
1, when a further gradation list was pub-
lished, the following explanatory note was
added:
"(i) During the period 7.6.1974 to 15.7.76
(when direct recruits of 1974 were eligible
for confirmation), eleven substantive vacan-
cies were available on the basis of the perma-
nent strength of the cadre;
(ii) Out of one hundred and thirty-
three temporary posts available during that
period, eightynine posts were assigned to
promotees. The direct recruitment vacancies
carried forward from the earlier period. The
recruits of the 1964 batch were assigned ranks
taking into account the direct recruitment
vacancies carried forward for the previous
period."
On a representation by the 1974 batch of direct recruits for refixation of inter se seniority in the Gradation List taking into account only the permanent posts in the cadre and by taking into account the carried forward vacancies, the State Government made an order on 22.5. 1980, to the effect that the 1974 batch of direct recruits should be shown immediately below serial number 64 and above serial number 65 in the continuation Gradation List published on 2.2. 1977.
Certain promotees being aggrieved by this Governmental direction approached the High Court under Article 226 for relief claiming protection of their seniority. The High Court classified their contentions into the following five:
(i) The only basis for determination of inter
se seniority of officers in a cadre--whether
by promotion or direct recruitment-should be
the date of entry into the cadre and the quota
rule is
891
not available to be used for pushing up or
down officers of the cadre;
(ii) Even if there be any ’carry forward’ it
should not extend beyond three years;
(iii) Quota rule should be applied taking into
account both substantive as well as temporary
vacancies in the cadre;
(iv) The quota rule did no longer operate in
regard to the junior scale officers when the
1959 rules became operative; at any rate it
was clearly so when the 1966 Rules came into
force, and
(v) The impugned Government order of 1980 was
invalid and liable to be quashed on several
grounds, one of them being that it was made
without providing an opportunity to the promo-
tees who were adversely affected by it.
The High Court analysed the judgment of this
Court in Badami’s case and also referred to,
and relied upon, the observations in Col.
Iyer’s case and with reference to the issues
catalogued above came to the conclusion as
stated below in its own words:
(i) "If promotions have taken place in excess
of the quota for promotion, pushing down the
promotees promoted in excess of their quota or
if direct recruitment was done in excess of
the quota for direct recruitment, pushing down
direct recruits appointed in excess of their
quota in a necessary concomitant of the quota
rule. Carrying forward of direct recruitment
vacancies or promotional vacancies to the next
recruitment period is merely the consequence
of such pushing down. (What was perhaps in-
tended to be said was that pushing down was
the direct outcome of the mandate to carry
forward) we are unable to accept the conten-
tion of learned counsel for the promoteepeti-
tioners that there should be no such pushing
down or such carry forward."
(ii) "In the light of the above ruling of the
Supreme Court, it must be held that carry
forward of direct recruitment vacancies cannot
extend beyond three years. However, this
ruling of the Supreme Court (In A.S. Iyer’s
case) does not affect the finality and binding
character of the earlier judgment of the
Supreme Court in Badami’s case which specifi-
cally dealt with the Grada-
892
tion List of Junior Scale officers as on 1.1.
1972, and gave direction as to how a fresh
Gradation List should be prepared. Those
directions are bound to be obeyed while pre-
paring such Gradation List of officers who
entered that cadre upto 1.1.1972 without any
limitation as to the period upto which promo-
tional or direct recruitment vacancies should
be carried forward to the next recruitment
period. But such carry forward cannot exceed
three years after 1.1.1972."
(iii) "The above ruling of the Supreme Court
(Badami’s case) is binding on all courts under
Article 141 of the Constitution. It is not
open to us to speculate what would have been
the conclusion of the Supreme Court if it had
known the correct factual position that the
cadre of Junior Scale officers consisted both
of permanent and temporary posts. That the
promotee-petitioners in the present writ
petitions were not parties to Badami’s case,
in no way detracts from the binding character
of the law declared by the Supreme Court."
(iv) "Hence, we reject the contention that
1959 Rules abrogated the quota rule in regard
to recruitment to the cadre of Junior Scale
officers ...... We, therefore, reject the
contentions of learned counsel for promotee-
petitioners that after the 1966 Rules came
into force, the quota rule ceased to apply to
the recruitment to the cadre of Junior Scale
officers and that thereafter the date of entry
into the cadre, whether by direct recruitment
or by promotion, became the only basis for
determining the seniority in that cadre."
(v) "The High Court examined the individual
cases of both the groups and finally directed
dismissal of Kadali’s (or promotee) writ
application as also of the direct recruits of
1976 and 1977. It further quashed the Govern-
ment order dated 22.5. 1980 by which certain
modifications were made in the Gradation List
of 1976 and called upon the State Government
to make appropriate alterations in the Grada-
tion List of 10.8. 1976 and the continuation
list of 2.2. 1977 on the basis that the carry
forward rule should operate for a maximum
period of three years subsequent to 1.1.
1972." We have before us a batch of appeals by special leave and two writ petitions under Article 32. Both the writ petitions are by direct recruits; Civil Appeal Nos. 2906 and 2910 and 2911 of 1984 are by
893 promotees while Civil Appeal Nos. 2902 to 2905 to 2907 to 2909 of 1984 are by direct recruits. The promotees challenge the propriety of the direction of the High Court to modify the Gradation List by applying the quota rule while the direct recruits seek to have full application of the quota rule instead of the limitation of three years and have asked for consequential benefits.
This group of cases has been heard at great length and learned counsel for the parties have produced a lot of papers. On looking into the matter objectively in the backdrop of Badami’s decision we are of the view that if the following aspects are answered all that arose for judicial determination would be appropriately met. Those aspects are:
(i) What is the effect of the quota rule in
the matter of fixation of inter se seniority
in the Gradation List so far as recruits from
different sources are concerned?
(ii) Though admittedly in 1957 under the
relevant rule, a quota existed, was that basis
altered or given up during the relevant peri-
od?
(iii) What is the effect of this Court’s
judgment in Badami’s case? Was the High Court
correct in observing that this Court would not
have come to the conclusion that quota was
confined to substantive vacancies only if the
true state of facts was known?
(iv) What is the effect of the observation in
Iyer’s case and does it supersede the rule in
Badami’s case?
(v) Does the situation highlighted in this
case require any other direction?
It is a well-settled position in law that where recruitment is from two sources to a service, a quota rule can be applied fixing the limits of recruitment from the two sources. (H.C. Sharma v. Municipal Corporation of Delhi & Ors., [1983] 3 SCR 372. FIRST ASPECT
In S.G. Jaisinghani v. Union of India & Ors., [1987] 2 SCR 703 a Constitution Bench of this Court observed:-
"The Solicitor-General on behalf of respond-
ents 1, 2
894
and 3 submitted that the quota rule was merely
an administrative direction to determine
recruitment from two different sources in the
proportion stated in the rule and a breach of
that quota rule was not a justiciable issue.
The Solicitor-General said that there was,
however, substantial compliance with the quota
rule ............ We are unable to accept
the argument of the Solicitor-General that the
quota rule was not legally binding on the
Government. It is not disputed that Rule 4 of
the Income Tax Officers (Class I, Grade II)
Service Recruitment Rules is a statutory rule
and there is a statutory duty cast on the
Government under this rule to determine the
method or methods to be employed for the
purpose of filling the vacancies and the
number of candidates to be recruited by each
method. In the letter of the Government of
India dated October 1951 there is no specific
reference to rule 4, but the quota fixed in
their letter must be deemed to have been fixed
by the Government of India in exercise of the
statutory power given under rule 4, it is not
now open to the Government of India to say
that it is not incumbent upon it to follow the
quota for each year and it is open to it to
alter the quota on account of the particular
situation. We are of opinion that having fixed
the quota in exercise of their power under
rule 4 between the two sources of recruitment,
there is no discretion left with the Govern-
ment of India to alter that quota according to
the exigencies of the situation or to deviate
from the quota, in any particular year, act
its own will and pleasure. As we have already
indicated, the quota rule is linked up with
the seniority rule and unless the quota rule
is strictly observed in practice, it will be
difficult to hold that the seniority rule
i.e., rule 1(f)(iii) and (iv), is not unrea-
sonable and does not offend Article 16 of the
Constitution."
In Badami’s case (supra) this aspect was
examined by the Court. The learned Chief
Justice spoke for the three-Judge Bench thus:-
"In working out the quota rule,
these principles are generally followed.
First, where rules prescribe quota between
direct recruits and promotees, 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.
895
Third, as between persons appointed in offici-
ating capacity, seniority is to be counted on
the length of continuous service. Fourth,
direct recruitment is possible only by compet-
itive examination which is the prescribed
procedure under the rules. In promotional
vacancies, the promotion is either by selec-
tion or on the principle of seniority-cummer-
it. A promotion could be made in respect of a
temporary post or for a specified period but a
direct recruitment has generally to be made
only in respect of clear permanent vacancy
either existing or anticipated to arise at or
about 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. Promotees who were occupying the
vacancies within the quota of direct recruits
will either be reverted or they will be ab-
sorbed in the vacancies within their quota in
the facts and circumstances of a case.
The important principle is that as long as
the quota rule remains neither promotees can
be allotted to any of the substantive vacan-
cies of the quota of direct recruits nor
recruits can be allotted to promotional vacan-
cies. The result is that direct recruitment
vacancies between 11th September, 1959 and
26th October, 1964 cannot be occupied by any
promotees. The fact that direct recruits were
confirmed on 28th October, 1964 will not rob
the direct recruits of their quota which
remained unfilled from 2nd December,
1957 ............ In S.C. Jaisinghani v.
Union of India (supra) it was said that when
the quota was fixed for the two sources of
recruitments, 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 promot-
ed. In Bishan Sarup’s case [1978] SCR Suppl.
491 it was held that when it was ascertained
that not more than 1/3rd of the vacancies were
to go to the promotees and the rest to the
direct recruits the ratio was not mere depend-
ant on whether any direct recruit was appoint-
ed in
896
any particular year or not. The promotees were
entitled to 1/3rd 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 exi-
gencies of situation. Quotas which are fixed
can only be altered by fresh determination of
quotas under the relevant rules. The other is
that on the ground one group cannot claim the
quota fixed for the other group either on the
ground that the quotas are not filled up or on
the ground that because there has been a
number in excess of quota the same should be
absorbed depriving the other group of quota.
In Bachan Singh & Anr. v. Union of
India & Ors., [1972] 3 SCR 390 the two appel-
lants were promoted in the year 1958 and 1959.
The respondents were appointed by direct
recruitment in 1962, 1963 and 1964. The re-
spondents were confirmed in their posts before
the appellants. The appellants contended that
the respondents who were directly appointed
after the appellants had been promoted were
not to be confirmed in permanent posts before
the appellants. It was held that the direct
recruits were confirmed against permanent
vacancies within their quota. The earlier
confirmation of direct recruits though ap-
pointed later was upheld on the ground that
they fell within their quota of permanent
vacancies.
Subraman’s case [1975] 2 SCR 979 on
which the appellants relied also held that
each quota would have to be worked independ-
ently on its own force. In that case the
Assistant Executive Engineers who were ini-
tially entitled to 3/4th and subsequently to
2/3rd of the vacancies while Assistant Engi-
neers who were entitled initially to 1/4th and
subsequently to 1/3rd of such vacancies were
held to be entitled to their respective quotas
independent of the fact that whether any
person from one class or the other was promot-
ed or not. It was illustrated by saying that
if there were three vacancies in a year two
would go to the Assistant Executive Engineers
and one would go to the Assistant Engineers
and even if there were not eligible
897
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 belong-
ing to the quota of Assistant Executive Engi-
neers are to be filled by Assistant Engineers
for want of availability of eligible Assistant
Executive Engineers, the appointment of As-
sistant Executive Engineers have to be pushed
down to later years when their appointment
could be regularised as a result of absorption
in their lawful quota for those years."
Badami’s case referred to several authorities of the Court and clearly drew out the judicial consensus on the point in issue by concluding that the quota rule had to be strictly enforced and it was not open to the authorities to meddle with it on the ground of administrative exigencies.
The scheme in force relating to the services for fixing inter se seniority takes into account the filling-up of the vacancies in the service from the two sources on the basis of the quota and, therefore, fixation of inter se seniority in the Gradation List has to be worked out on the basis of quota. SECOND ASPECT
There was no dispute either before the High Court or before us that in the 1957 Rules there existed a quota for filling-up vacancies in the Class I Junior Scale posts. The High Court found that the quota continued throughout during the relevant period. Before us Mr. Nariman supported that finding while Mr. Kacker maintained that the quota had in later years been given up. Rule 3 of Mysore Recruitment of Gazetted Probationers Rules, 1959 made the following provisions:
"(1) The provisions of these rules shall be
applicable in respect of direct recruitment to
the cadres in State Civil Services Class I and
Class II specified in column 3 of the Schedule
to these rules relating to the Services speci-
fied in the corresponding entries of Column 2
of the said Schedule.
(2) These rules shall have effect notwith-
standing anything contrary contained (i) in
the Cadre and Recruitment Rules for the time
being in force applicable to the Cadres in the
898
State Civil Services referred to in sub-rule
(i) and (ii) in the Mysore State Civil Service
(General Recruitment) Rules, 1957.
(3) During the period of five years from the
date of commencement of these rules, as nearly
as may be two-thirds of the number of vacan-
cies arising in the cadres in the State Civil
Services referred in to in sub-rule (i) shall
be filled by appointment of candidates herein-
after in these rules referred to as probation-
ers selected in accordance with the provisions
of these rules and the actual number of vacan-
cies to be so filled shall be determined by
the Government." Admittedly these rules related only to direct recruitment and as it appears, in sub-rule (3) remained in force for five years (said to have been extended for one more year); with the lapse of a total period of six years from the date when these rules came into force, they cease to have effect. In 1966 rules were made under the proviso to Article 309 known as the Karnataka Government Gazetted Probationers Posts (Appointment by Competitive Examination) Rules, 1966 and sub-rule (3) of Rule 3 thereof provided inter alia:
"That notwithstanding anything contrary in the
rules of recruitment to the Karnataka Adminis-
trative Service the number of vacancies as
determined by the Government in that service
should be filled by direct recruitment after
holding a competitive examination by the
Commission."
On the 11th of August, 1977, the Karnataka Administrative Service (Recruitment) (Amendment) Rules, 1977 came into force. Rule 2 thereof provided: "Amendment to Schedule:-In the Schedule to the Karnataka Administrative Service (Recruitment) Rules, 1957 for the entries at the Item (b) the following entries shall be subsituted, namely:- ------------------------------------------------------- 1 2 3 -------------------------------------------------------- (b)All Class I (i)50%of vacancies to be Forpromotion;ClassII (Junior Scale) filled by promotion Officers must have 899 Posts. from Class II Officers; worked for at least a
and period of four years
(ii) 50% by Direct including the period of
Recruitment in accorofficiation or probation
dance with the Karnataka
Recruitment of Gazetted
Probationers (Appoint-
ment etc.) Rules, 1966. Unless the 1957 Rules remained in force till 1977, there would have been really no necessity to refer to them for the purpose of amendment; Badami’s case did proceed on the footing that the quota system in the Recruitment Rules continued till 1971-72. It is not Mr. Kacker’s case that anything happened after 1972 which brought about dissolution of the quota. We reject the contention of Mr. Kacker that the quota system had been abandoned and confirm the finding of the High Court in that regard. It is, however, a fact that the ratio has been changed from time to time. THIRD ASPECT
As already pointed out, Badami’s case was concerned with these very rules and a similar situation though for a different period. It is a decision of a three-Judge Bench and we proceed on the footing that it is binding on us. The High Court has pointed out in the leading judgment in Kadali’s case:-
"There are numerous Government orders sanc-
tioning, from time to time, temporary posts of
Assistant Commissioner which are the same as
the posts of Junior Scale Officers and extend-
ing the tenure of those temporary posts from
time to time ..........................
Though the Karnataka Administrative Service
Cadre Rules mention of only permanent posts
and not temporary posts in the cadre of Junior
Scale Officers, the material produced before
us clearly establishes that the cadre of
Junior Scale Officers consisted of a consider-
able number of temporary posts at all material
times. In para 6 of the statement of objec-
tions filed on behalf of the State in these
petitions, the State has admitted thus:-
"The cadre strength of KAS Class I Junior
Scale Officers had itself undergone revision
and figures
900
showed that 152 permanent posts and 133 tempo-
rary posts were available as is clear from the
notification No. GAD 590 SMC 74 dated 3.3.
1976."
However learned counsel for direct recruits on
the following observations of the Supreme
Court in Badami’s case at page 1564 of the
report:-
"In E.P. Royappa v. State of Tamii Nadu,
[1974] 2 SCR 348 this Court said on the con-
struction of Rule 2 of the relevant Cadre
Rules in that case that the State Government
might add for a period to the cadre one or
more posts. But, the posts so added could not
become cadre posts. The temporary posts which
are created due to exigencies of the service
are posts which are outside the Cadre."
From the above observations, it would appear
that the Supreme Court took the view that
temporary posts which were created due to
exigencies of service, were posts which were
outside the cadre. In other words, the Supreme
Court seems to have thought that temporary
posts added to the cadre were ex-cadre posts.
The attention of the Supreme Court does not
appear to have been drawn to Note 2 to R 49 of
the KCSR which classifies temporary posts into
two categories, namely, posts created to
perform the ordinary work for which permanent
posts already exist in the cadre, and isolated
posts created for the performance of special
task unconnected with the ordinary work which
a service is called upon to perform."
The conclusion indicated in the decision of the learned Chief Justice of this Court in Badami’s case had been supported by reasons. As it would appear at page 8 19 of the Reports, this aspect was raised as the first of the six contentions formulated for consideration of the Court. Keeping the facts of the case in the background, three reasons were indicated in the judgment for the conclusion that quota covered permanent posts. Reference was made to certain decisions of this Court as also. to Rule 9 of the Probation Rules of 1959. It was held that Rule 9 establishes the exclusion of temporary posts from the cadre. Royappa’s case (supra) was relied upon for the same conclusion by saying that posts temporarily added to the cadre by exercise of power under a permissive rule would not become cadre posts and temporary
901 posts created due to exigencies of the service should be treated as posts outside the cadre. The High Court in the judgment in Kadali’s case relied upon Note 2 of Rule 49 of the KCSR and thought that this Court was not properly informed of the factual situation when in Badami’s case it said that temporary posts were not to be taken into consideration for the purpose of working out the quota. The note to Rule 49 has indeed no bearing on the point and we are of the view that there was really no justification for the doubt indicated by the High Court. Apart from the fact that the conclusion of this Court in Badami’s case on this score is a binding authority on us, from an examination of the matter we also reiterate that conclusion to be correct. FOURTH ASPECT
The High Court in these cases has taken the view that the quota could be carried forward for a maximum period of three years and not beyond. This has been done by placing reliance on the Constitution bench judgment of this Court in the case of Col. A.S. Iyer & Ors. v. V. Balasubramanyam & Ors., [1980] 1 SCR 1036. Krishna Iyer, J. speaking for the Court at page 1058 of the Reports stated:-
"The total number of vacancies at the
DSS level for each year shall be divided in
the ratio of 2:1 (50% for the Army Corps and
25% for direct recruits). The 50% reserved for
the army corps shall be available to be filled
by those candidates. The 25% seats to be
filled by direct recruits shall be filled only
by such recruits. Even if enough direct re-
cruits are not available they will not be
filled by the army nominees but shah be kept
vacant to be carried forward and filled in
later years by such direct recruits. A reason-
able period for the carry forward scheme will
be three years, not more. Likewise, military
vacancies at the DSS level each year shall be
filled only by such nominees. If enough such
hands are not available, a similar procedure
of carry forward will govern. For the SS posts
25% belongs to promotees from Class II offi-
cers. The total number will be worked out by
adding all the posts of SS, Deputy Directors
and Directors and Surveyor General and allot-
ting 1/4th of it as the quota for Class
II promotees for appointment as SS. Such is
the reasonable interpretation of the rule." The Court in that case had been called upon to decide the dispute of 902 seniority between the direct recruits and promotees within the civilian quota in the Survey of India service. Survey of India (Recruitment) Corps of Engineer Officers, Rules, 1950 came for consideration of the Court. The opinion expressed by this Court in the extracted paragraph was with reference to the rules before the Court. The provisions as indicated in the extracted paragraph were somewhat peculiar. After the quota was provided, there was a prohibition against filling up of the vacancies in the respective quotas from other categories even when suitable candidates were not available from within the reserved sphere. This meant that the posts were allowed to go vacant even though in public interest the same should have been filled up on account of the bar in the rule. It is in that background that this Court indicated that a reasonable period for the carry-forward scheme would be three years and at the end of the paragraph indicated that that would be a reasonable interpretation of that rule. Obviously nothing of general application was intended to be said and this Court did not certainly intend to lay down a time limit of general application. The Mysore State Civil Service (General Recruitment) Rules, 1957 which admittedly applied to the services in question by Rule 17 provided:
"Notwithstanding anything contained in these
rules or in the rules of recruitment specially
made in respect of any service or post, the
appointing authority may--
(a) recruit by direct recruitment to a post
reserved to be filled by promotion when it is
satisfied that the person eligible to be
considered for appointment by promotion is not
fit to be also appointed, or
(b) fill up by promotion any vacancy relating
to a post which is required to be filled by
direct recruitment when such vacancy is not
likely to last for more than one
year ................ " In exercised of the powers conferred under this rule the appointments in excess of the quota limit appear to have been made. It is conceded that every appointment to the promotional post made in excess of the quota was at the commencement a temporary one. The 1957 Rules were substituted in 1977 by the Karnataka Civil Services (General Recruitment) Rules, 1977. As far as relevant Rule 17 thereof provides:
"Notwithstanding anything contained in these
rules or in
903
the rules of recruitment specially made in
respect of any service or post, the appointing
authority may--
(a)...............................................
(b)...............................................
(c) fill by promotion temporarily on the basis
of senioritycum-merit a vacancy required to be
filled by direct recruitment where selection
to the post has not been finally made and
there is likelihood of delay in making direct
recruitment. No such promotion shall be made
unless a requisition has been sent to the
Commission or to the appropriate recruiting
authority for selection of a suitable candi-
date. A candidate temporarily promoted under
this sub-rule shall not have any preferential
claim for regular promotion and also shall not
count the period of service in the promoted
post for seniority; he shall revert to his
original post on the expiry of one year or on
the appointment of a direct recruit whichever
is earlier ......................... " The scheme in the Rules of 1977 clearly indicates that the transgression of the quota rule was a deviation of a temporary nature and was intended to be balanced in good time. The conclusion of Ray, C.J. is fortified by the spirit of Rule 17 of the 1957 Rules as clarified in clause (c) of that rule in 1977. The presence of such a rule in the field excludes the application of the ratio of Col. Iyer’s case to the facts hereof. We do not think the High Court was right in overlooking the binding judgment of this Court in Badami’s case and preferring to apply the observations of Iyer, J in the latter decision made with reference to a different set of rules containing a different scheme of implementing quota. The rule on this aspect of Badami’s case was quoted with approval by a two-Judge Bench of this Court in P.S. Mahal & Ors. v. Union of India, [1984] 3 SCR 847.
A lot of argument was advanced at the Bar particularly on the side of the promotees that serious prejudice was being caused to them by enforcing the quota rule. Reliance was placed on a number of authorities of this Court beginning with the case of A. Janardhana v. Union of India & Ors., [1983] 2 SCR 165; G.S. Lamba & Ors. v. Union of India & Ors., [1985] 3 SCR 431; G.P. Doval & Ors. v. Chief Secretary, Government of U.P. & Ors, [1985] 1 SCR70; O.P. Singla &Anr. etc. v. Union of India & Ors., [1985] 1 SCR 351 and D.S. Nakara & Ors. v. Union of India, [1983] 2 SCR 165. 904
In Lamba’s case (supra) the Court found that the promotion was not styled as temporary or ad hoc or stop-gap; on the other hand, the Court at page 459 of the judgment in the Reports referred to the case of N.K. Chandan & Ors. v. State of Gujarat, [1977] 1 SCR 1037 where on the basis of a power of relaxation the Court had held such promotion to be regular. The Court further held:
"Once the promotees were promoted regularly to
substantive vacancies even if temporary unless
there was a chance of their demotion to the
lower cadre their continuous officiation
confers on them an advantage of being senior
to the later recruits under Rule 21(4). If as
stated earlier by the enormous departure or by
the power to relax, the quota rule was not
adhered to, the rota rule for inter se senior-
ity as prescribed in Section 25(1)(ii) cannot
be given effect. In the absence of any other
valid principle of seniority it is well-estab-
lished that the continuous officiation in the
cadre grade of service will provide a valid
principle of seniority................" This principle appears to have been followed in this Court in some cases during the last two years or so. The exceptional circumstances indicated in Lamba’s case for supporting the departure in the judicial opinion has been overlooked in some of these cases and the resultant benevolent approach to protect the promotees in their claim for seniority has been accepted without considering the special circumstances in which the ratio had been inducted in support of the departure.
In a precedent-bound judicial system binding authorities have got to be respected and the procedure for developing the law has to be one of evolution. It is not necessary for disposal of these matters before us to go into that aspect except noticing the existence of distortion in the field. The rationalisation of the view in a way known to law is perhaps to be attempted some day in future. In the present batch of cases the law being clear and particularly the mandate in the rule being that when recruitment takes place the promotee has to make room for the direct recruit, every promotee in such a situation would not be entitled to claim any further benefit than the advantage of being in a promotional post not due to him but yet filled by him in the absence of a direct recruit. One aspect which we consider relevant to bear in mind is that the promoted officer has got the advantage of having been promoted before it became his due and is not being made to lose his 905 promotional position. The dispute is confined to one of seniority only. The advantage received by the promotee before his chance opened should be balanced against his forfeiture of claim to seniority. If the matter is looked at from that angle there would be no scope for heartburning or at any rate dissatisfaction is expected to be reduced so far as the promotees are concerned. LAST ASPECT
In Karam Pal v. Union of India, [1985] 3 SCR 271 a three-Judge Bench of this Court to which one of us was a party indicated as follows:-
"In a vast country such as ours, strong and
independent bureaucratic set up is indispens-
able. At the same time it is equally necessary
that the service from top to bottom must be
alive to the fact that it is its obligation to
maintain proper attitudes, discipline and
duty-oriented working. While it is the right
of every person in the service set up to
expect just and fair treatment in regard to
his employment frequent litigation between him
and the State involving countless other co-
employees in the service in the battle is a
deviation from the right direction. It is true
that very often instances come to light where
the grievance is genuine and the treatment
meted is unwarranted and uncalled for. Govern-
ment in a democratic polity runs on impersonal
basis but on the cadinal code that everyone
shall perform his duty."
This Court further observed,
"There has been a phenomenal rise in service
disputes in the last three decades. It is time
that serious attention is devoted to discover
the reason for it and take effective steps to
ensure curtailment thereof. Whether such
litigations come before Courts or Tribunals is
of no consequence here. Frequent litigations
between the States and its employees ultimate-
ly affect the efficiency of service and bring
about indiscipline, lack of loyalty and an
attitude of indifference.’’ We are struck by the innumerable rules that have been framed within a period of about thirty years to cover the field relating to constitution, 906 recruitment and provision for other conditions of service. It is proper that service rules should be simple making reasonable provision for necessary aspects. While framing such rules, the relevant provisions of the Constitution and laws in force have to be kept in view. There should be no frequent alteration of the service rules through. Exigencies of circumstances and unforeseen situations will certainly justify alterations. Those will be indeed rare occasions.
Experience shows that legal battles are fought in court between government servants--whether individual pitched against individual or group against group; this embitters relationship inter se and often results in a switch over of attention from public duty to personal cause. Frequent litigations against the State or higher authorities in the hierarchies of administration, wipe out reverance, loyalty and the sense of discipline and substitute those by anger, disrespect and rancour. In the process fellow feeling is lost, the sense of brotherhood vanishes. The net resultant of all is deprivation of the efficiency of the bureaucratic community to serve the society. The undue growth of service litigation within these four decades of independence clearly calls for these observations. As and when, occasion has arisen the Court has sought to draw the attention of the State as the employer as also the Government servants to this aspect of the matter. This has been done not with a view to subjecting any litigant to undue criticism but with the fond hope that it would help the problem to receive adequate attention. We are surprised that the words spelt out in the different judgments have fallen on deaf ears and created no stir. Thereby the most powerful wing in the administrative set up is gradually moving away from its designated path. We have come across cases where officers have been in court litigating over service disputes for about twenty-five to thirty years of their career which would mean almost three-fourths of their service period. What would be the contribution of such officers to the public service can well be imagined. Very often a public officer is forced into litigation as he gets no justice in the hands of the superior. There are also several instances where an officer drags the employer into litigation without a cause of action. These are matters which must be taken into account without further loss of time and with fortitude so that the most effective wing of the administration does not further lose its serviceability.
A public servant--whatever his status be--is in the position of a trustee. Social power vests in him for the purpose of rendering service to the community. Every public servant has to be cognizant to that obligation. Once the level of that consciousness grows up there is 907 bound to be a corresponding fail in the attitude to litigate over small issues. What this Court said in the case of Dr. T.G. Siddapparadhya & Ors., [1971] 1 SCR 568 has to be borne in mind. These were the words then said:-
"The canker of litigiousness has spread even
to a sphere of life where discipline should
check ambition concerning personal preferment.
A teacher is justified in taking legal action
when he feels that a stigma or punishment is
undeserved but he is expected to bear with
fortitude and reconcile himself to his lot
suppressing disappointment when he finds a
co-worker raised to a position which he him-
self aspired after". What applies to a teacher may perhaps well apply to everyone in positions of social trust. It is for the privileged public servant as also his employer to share this philosophy.
The net result of the discussion above requires that rule in Badami’s case has to be given full effect. The appeals and writ petitions of the direct recruits have to succeed and those by the promotees have to fail. We hope and trust that the State of Karnataka will not demote anyone who has been in a promotional post for several years to the Class II service as a consequence of this decision but the Gradation List has got to be adjusted to fit into the principles indicated in the judgment. No justification was shown to us as to why the State of Karnataka failed to comply with its obligation of making recruitments in terms of the quota. Once the State frames rules they are binding on the State and like individuals the State has got to regulate its conduct in accordance with the rules--nay, the State has to observe it all the more. We hope and trust that the State of Karnataka in the years ahead will comply with the quota rule with regularity so that a litigation of this type may not arise again. If any party has to be directed for payment of costs in this bunch of litigation it must be the State. We, however, do not want to saddle the State with costs for two reasons-firstly, we do not want the employees to have a feeling that in the fight their employer has been vanquished and secondly we entertain a fond hope that there will be no reoccurrence.
In course of arguments we had suggested to learned counsel for the parties to furnish recast Gradation List on the basis of claims advanced before us---(1) showing how it would be when full claim of the promotees is granted and (2) how different it would look when the 908 total claim of the direct recruits is allowed. Such charts have been prepared and furnished and we find that the process of pushing up and down would be inevitable but would be within reasonable limits and no irreparable prejudice was apparent.
The appeals and writ petitions of the direct recruits are allowed, and the appeals by the promotees are dismissed. There shall be no order for costs throughout. S.L. Appeals and Petitions disposed of. 909