BHAGWAN DAS AND OTHERS versus INDIAN COUNCIL OF AGRICULTURAL RESEARCH AND OTHERS

This writ petition involves the familiar rivalry between promotees and direct recruits. Normally a resolution of such a dfopute these' two well known groups ·of service employees would necessitate con.sld~reaiion of various decisions relating to the quota and rota rule and such other allied matters. We have been relieved of ·this exercise because we feel that the dispute in this case can be resolved 'onfacts,'nnaided by precedents on such matters. The counsel on boih sides advisedly, therefore, restrained themselves from citing the rekv,ant authorities before us.

p. 1066

· 2! Now the facts: !~

p. 1066, margin F

All the 39 petitioners, are promotees to the post of Assistant in the1Indian Council of Agricultural Research (for short 'the societi') the •!st respoadent herein. The second respondent i!i the Uniori'bf India and respondent Nos. 3 to 31 are direct recruits to the. sable post. Respondent Nos. 32 to 88 are also promotees and have been impleaded as proforma respondents. ·

p. 1066, margin F

·"'' 3.''Tlie petitioner originally belonged to. t_he service of. the Centr~l' Secretariat, Government of India, Mm1stry of Agncul-. ture. ''The''society was a part of that department tilll. 4. 1965 on wliicll !l~ie · ihe Government· of India decided to re-organise the .. lillAGWAN v, (Khalid, J.) loid Society into a fully autonomous organisation with its own secretariat. The petitioners opted to join the service in the Society on such re-organisation. Respondent Nos. 3 to 31 were directly recruited after an·open competitive test, held bj the Society iii 1967 and 1971.. A seniority list was prepared by the Society in 1976 showing the relative positions of the promotees and the direct ·reoruits. The provocation for filing the writ petition was the publishing , of a second seniority list, by the Society by its Memorandum No. ·27 (5)/81-Estt. II dated 7.4.1981. This list brought changes in the earlier list and pushed down the. promotees from the positions

pp. 1066–1067, margin G

they occupied in that list. The prayer in the writ petition. \s to "' quash this seniority list on the ground that it violates Article 14 ~nd 16 of the Constitution of India and to stay its implementation.

p. 1067

The Petitioners' case is that they cank into the Sosiety by virtue of the option exercised by them and that they are entitled to seniority on the basis of the length of their service from the date of option. According to them, recruitment rules, laying dowff the terms of serivce in the Society, were not avilable then and as such seniority had to be fixed on length of service. The case. of the contesting respondents is that seniority has to be fixed not with reference to the date of the reorganisation of Society and the· · date 'of option exercised by the petitioners but from the date of their appointment on a regular basis. They seriously disputed the case of the petitioners that they were entitled to senjority from' the date they exercised their option. According to them the petitioners have to establish that they were duly appointed in the service on a regular basis, when they exercisd their option, to claim seniority on the strength of length of service from the· date of their option.

p. 1067

We· must confess that there was consid~rable confusion · both on the side of the petitioners and on the side of the Sodeif and the Government regarding the existence of rules, iegulatillg;· ' the conditions of service in the Society. Things proceeded iii the' Society on the basis that there were no recruitment rules in exili~ tence till 1974, while the factual position is thai rules were in exis~ tence from 1964. It was on this wrong aasumption the that seniority · list was prepared on .2nd February, 1979. ·In that list, senioriiy was reckoned with reference to length of service. It was after" realising that a mistake had been committed and that rules, in fact; · existed that the impugned list was drawn up on 7th April, 198L

p. 1067, margin F

T:1e potitioners have given a comparative statement as An· nexure-9, showing the m1naer .in which the new list bas worked fo theif db'ifim~nt. This Annexure show.< the 'relative postioils orthe· proinoie€s a~d the dir~ct recruits in the 1976 list and in ,the 19&1 Iist.''To '~itb. two .or'three examples ; <lirecfrecruits were pla~ed at sefia!Nos. 4, 20 & in the 1976 list; have gone up as seria Nos~ 2, '10 and 22o' respectively, in the 19&1 list. While preparing the 1976 1ist, a deemed date of appointment in the grade was aclopted to' calculate the length of service, The petitioners, case is ~ that the direct recurits never questioned their placement in this · lisfarid 'therefore cannot oppose with any justification the' petitioners' ·req'ues( for quashing the impugned list. Though this submission is' wholly not unfounded,. the petitioners cannot succeed merely'on/ the inaction on the part of the direct zecruits but have to satisfy the Court of a right in them to entitle them to seniority from the date they:opted and came into the Society's service. ·11 is this aspect of the case.that needs examination by us in this writ petition . · ' 7.' In this case we do not have the u_sual picture o(great injustice 'glafing in the face, of promotees being eased out of their plices by direct recruits after a long lapse of time. Here w'e are dealing with a small Society with a limited number of employees and the· dispute relates to a short period from 1965 to 1973. ·1rhe pe\itioners cannot, in this case, put forward either the 'case of a ' . wholesal~ reduction of their places, legitimately due io them or the'"i:ollapse of the quota and rota system as was the case in some of the decided cases. The short point here is as to when the petitioners were regular appointed in the grade of Assistants and as to ' wlfether the petitioners'· rightful places have been ·robbed' by the SoCiety :ind the direct recruits by the impugned senicirity list. ,,.,,8.,,,,The .petitioners .were originally Upper Division Clerks with ;the :Agricultural Department of Goverment of India. _They came to, Court with the definite plea that the.ir seniority.,was, fixed on .the basis of the principles applicable to Government service in th~ absence of any rules framed by the Society, regulating' their service .conditions. ~j It is stated in the petition that they made representations to the authorities for laying down of dear principles to determine the inter-se seniority between them and the direct recruits and as a conseque.nce, the Government. oflndia iss~ed. a°ifomorandum dated 20th Apirl, 1970, asking the Government employees to give their option by 30th April, 1970 a!1d reiterating at the same time that the inter-se seniority of the ministerial staff under the reorganised Council would be fixed on the basis • of the date of appointment made on a regular basis. H is significant to. note that the petitioners. have not produced a single of their appointment orders for this Court to be satisfied as to when they were appointed as Assistants on a regular basis while a ·specimen appointment order of direct recruits has been produced. Still the petitioners insist that the crucial date for determining the inter-se seniority is 1-4-1965, the date on which the Society was reorganised. We find it difficult to accept the contention that the length of service has to be reckoned from 1.4.1965 or from the respective dates when they entered the service of the Society on exercise of their option when the Memorandum, produced by them, has clearly stated that the inter·se seniority will be fixed on the basis of tlie date of appointment in the grade on the regular basis. We have looked into the Memorandum Annexure-4, dated 20th April, 1970. It clearly states that the date for exercise of option has been extended to 30th April' 19,70 and that the principles determining the inter-se seniority of the ministerial staff in the reorganised Council was considered by the Society in consultation with the Ministries of Law and Home Affairs and Finance and that it was decided that the seniority of the ministerial staff in the reorganised Council would be fixed on the basis of "date of appointment to the grade on a regular basis." This statement in the Memorandum which finds a place in paragraph 8 of the Writ Petition also shows, according to us, the hollowness of the contention of the petitioners that seniority has to be fixed wit_h reference to the date on which option was exercised by them. '· Direct recruitment to the post of Assistants in the Society was made by holding competitive examination in 1967 and 1971. Upper Division Clerks, like the petitioners who were working with the Agricultural Dept., Govt. of India, could very well have appeared for this competitive examination and got themselves directly recruited as Assistants on successfully passing the competitive examination. We are told that some of the petitioners in fact, 'appeared for the competitive test without success. Though this statement made by the counsel for the respondents at the bar was not disputed by the petitioners' counsel, we do not propose to rely on it since it is not a matter on record. Those who were successful at tbe competitive examination and the interview were offered the posts of Assistant by regular appointment as per appointme.nt order produced as Annexure-5, issued by the Society, containing the terms of appointment. As already indicated, the petitioners .have either by design or by oversight failed to make available to us their orders of appointment on a regular basis in the grade when they exercised option, It is against this background that the challenge to the 1981 list has to be considered.

pp. 1068–1070

.If the petitioners can satisfy us that they had greater. length of service in equivalent grade than the direct recruits, tbiey are entitled to succeed. If they fail, the list has to stand despite the fact that the earlier list was not challenged by the direct recruits. We do not have on record anything to show when· the petition.:rs . were regularly appointed in the grade of Assistants. In the absence of this evidence, can the petitioners succeed ? As already stated the Society and· the Union Government were originally under a misapprehension that no rules existed governing the service conditions in the Society. The petitioners have produced a Memorandum Annexure 3 dated 21st August, 1967 which throws· considerable light on the dispute involved in the case. It is stated therein that the Governm(:nt of India have approved of the reorganisation of the Indian Council of Argicultural Research into an Office wholly controlled and financed by the Indian. Council of Agricultural Research, with effect from a date to be appointed shortly. As a consequence of the above decision t:he various posts existing as Government posts in the said Secretariat, will be abolished with effect from the aforesaid date. and corresponding number of posts in various cadres will be created as nongovemment posts under the Society.

p. 1070, margin B

Paragraph 2 of this Memorandum reads : "The Indian €ouncil of Agricultural Research has, however, agreed to take over such officers as belong to the C.S.S. (holding posts of SectionOfficer's grade and Grade IV only), C.S.S.S. and C.S.C.S., employed on date in the Dep~rtment of Agriculture and its attached offices (including the Indian Council of Agricultural Research) as are willing to serve the Council. The Indian Council of Agricultural Research will, of course, select from amongst the persons opting for its service only the number of persons . required by them, keeping in view the total. number of existing posts in the various cadres borne on the Govern- ~HRGWAN fiAS v. COtlNdiL AFOICtlLnlRAt RESEMl.CH (Kha/id, J.) 1011 ment side of the Indian Council of Agricultural Research." Clause VI of Para 2 reads as follows : "The iriter-se seniority of the staff in Indian Council of Agricultural Research shall be determined in accordance with the rules. to be framed for the purpose taking into account, among others, the principles governing the seniority under the Central Government." From the passages extracted above, it becomes clear that appointments are to be regularly made to various grades only with effect from a date to be appointed after 21st Angllst, l967, the date of the Memorandum,. which means that the deemed date of appofotment mentioned in the 1976 list cannot b.e relied upon by tire petitioners to project a case of their lenght of service from that date. The petitioners placed strong reliance on the · Memorartdum1 Annexure-4 dated 20th April, 1970, and in particular to the following : ''It has also been decided that !st April, 1965 shall constitute the crucial date for determining the inter-se seniority of the staff finally merging into the reorganised Council. Accordingly, a combined inter-se seniority list will be prepared for each grade of the persons on the basis of the above principle in accordance with the position obtaining in respect of each individual as on !st: April, 1965 and all regular vacancies arising in the Council with effect from !st April, 1965 upto date, meant to be filled by promotion (including those which have been filled up on ad hoc basis) will be filled up on a regular basis from the inteMe seniority list drawP, up in the manner indicated above."

pp. 1070–1071, margin E

Relying on this, the petitioners attempt to contend that their seniority should start from the date they exercised option and that this is correctly refiected in 1976 list. This submission overlooks ~he fact th~t even at that time, there were rules in existence prescribmg a ratio of I : I between promotees and direct recruits. fa additio.n to this, it has to be noted that here also, filling up of vacancies on a regular basis is emphasised.

p. 1071, margin F

The Petitioners cannot therefore seek support from this to press a ca'se of seniority from the date of exercise their options or from the deemed date of appointment. .Rights .can accrue to them as members of the new service only from the .date they are regularly appointed in 'the grade. The impugned list instead of continuing the mistake committed in the 1976 .list, ha~'only corrected the mistake.

p. 1072, margin A

We find from the records that the Union Government and the Society were originally in error in their assumption that no rules existed.for regulating the service conditions in.the Society.• We have at page .91 as Annexure'6, · rules relating to the Indian Council ot'.Agricultural Research before its· reorganisation. The said rules show that the posts of Assistants can be fill d up 50% by direct · recruitment . and 50% by promotions. Jn other words, for every pr,omotee · there should be a direct recruit also. As is seen. in the Handbo.ok · for personnel· officer, 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 quotas of vacancies reserv.ed for direct recruitmenJ and promotion respectively.in the Recruitment Rules.

p. 1072, margin B

New recruitment rules for verious posts in the Society including Assistants with whicli we are concerned, came into force with effect· from 1.9.1974. Under these rules, in the number of posts available for Assistants 50% was .to be by way of promotion from amongst the U.D.Cs. having . rendered at least 5 years approved service in the grade on the basis of seniority,cum-fitness subject to rejection of the uiifit on the recommendations of the D.P.C.'·and '50% by direct recruitment on the basis 'of the results of competitive examination held by the ICAR.

p. 1072, margin E

This method of recruitment was. to be with effect from 1.L1976> The method of recruitment before this date is also indicated ·iri these rules. ·His provided 'in these rules that vacancies, arising between 29.SJ973 and 31.12.1975, will be filled wholly · (IOO%)by promotion. This means that vacancies prior to 2.9.19_73 will be·fil!ed ·up in accordance with tlre 1964 rules and vacancies between 29.!b973 and 3!.12.1975, will be filled by the promotees alone and thereafter in the ratio 1 :I. From these ru'.es it is evident that the Society was ·conscious of the claims of the promotees and hence safeguarded their interests by providing 10J% posts for them· between 29.8.1973 and 3l.12.1975. By doing so, justice waq done to them in a great measure. T.he petitioners have no grievance that in preparing the 1981 list, which is .impugned in this writ petition, a departure has bem made to their detriment, .without adhering·to the quota provided in the rules. Their only grievance is that the earlier li>t was changed without taking into account the deemed · dates of appointment. We have already indicated that in the absence of satisfactory proof of the date of appointment of the petitioners in the grade as assistants in the Society, the petitioners cannot successfully urge before us a violation of Article 14 and ~ 16 of the Constitution of Inclia. A look at the list prepared in accords " ance with the above rules, fortifies our conclusion that no great injustice was done to the promotees in the preparation of the list. As one goes through the list, one finds that the Kap between the promotcei <J(ihe direct recruits _is of a very s~ort durati~n and not wide :fas . m other cases. It 1s true that direct recruitment was made first only in 1967. However, to work out the quota system an. earlier date of appointment bad to be given to the direct recruits. This could not be avoided. This according to us, has not done any great injustice to pursuade us to give relief to the petitioners. The dislocation was limited only to a period between 1965 to 1967 and 1967 to 1971 aod not to a fairly long period of time. In our Judgment, therefore, the petitioners are not entitled to succeed. The writ petition fails and is dismissed. The parties are directed to bear their costs, N.V.K. Petition dismissed.

pp. 1072–1073, margin F