Holding

The appellants were promoted under the 5% quota for the 1974‑75 vacancies, and the State Government’s gradation list showing them senior is legal and valid.

Summary

The case concerned the inter‑se seniority of Excise Inspectors in Bihar. The appellants were promoted to the post of Inspector of Excise in 1976 under a 5% quota reserved for promotion from Upper Division Assistants, which the State Government claimed applied to the 1974‑75 vacancy year. The respondents, promoted from Sub‑Inspectors in 1974, argued that the appellants were not promoted under the quota and that the State lacked authority to fix seniority, contending that the Excise Commissioner alone could do so. The Patna High Court held that the 5% quota was only notified on 31‑Mar‑1975 and therefore the appellants were not promoted under it, quashing the gradation list that showed them senior. The Supreme Court reversed, holding that the quota was created by a Board order on 20‑Mar‑1974 and, although notified later, applied to the 1974‑75 vacancies; the State Government had the power to determine seniority, and the promotions were valid, making the gradation list legal. Consequently, the High Court judgment was set aside and the petition was allowed.

Issues considered

The applicability of the 5% promotion quota to the 1974‑75 vacancy year for the appellants' promotion.
Whether the State Government, rather than the Excise Commissioner, has jurisdiction to determine inter‑se seniority of Excise Inspectors.
The validity of the gradation list showing the appellants senior to the respondents.
Whether the quota rule can be relaxed or altered in the circumstances of the case.

Legislation cited

Bihar Excise Act, 1915s. Section 2(7), s. Section 7(2)(a), s. Section 7(2)(f)
Excise Recruitment Rules, 1936s. Rule 1, s. Rule 6

Subjects

senioritygradation listpromotion quotaExcise Departmentinter se seniorityrecruitment rulesquota rulespecial leave petition

Judgment

AWADH PRASAD SINGH AND ORS.
v. A
STATE OF BIHAR AND ORS.

MARCH 27, 1990

[B.C. RAY AND K.N. SAIKIA, JJ.] B

Excise Recruitment Rules 1936: Rule 1(3)(2)-Bihar State-
t:xcise Department-Excise Inspectors promoted from Upper Division
Assistants in Excise Department and Excise Inspectors promoted from
Sub-Inspectors-Gradation list-Challenge to-Whether valid.

The subject matter of the Writ Petition is the gradation list dated c
9.1.1986 of the Inspectors of Excise by which the Government of Bihar
has finally fixed the inter se seniority of the Petitioners who were prom-
oted vis-a-vis th_e appellants in the present appeal who were promoted to
posts of Inspectors of Excise in 5% quota reserved for promotion from
........... the posts of Upper Division Assistants of Excise Department. D

In the gradation list the appellants who joined as Inspectors of
Excise on 7 .5. 76 were shown as senior to the Excise Inspector who were
promoted from Sub-Inspectors on 24.4. 74 in the vacancies of direct
recruits.
E
The gradation list was challenged in the High Court by the Re-
spondents on two grounds i.e., (I) the State Government has no jurisdic-
tion to_ determine the seniority or gradation list of the Excise Inspectors,
the competent authority is the Excise Commissioner (2) The Respon-
dents in the present appeal have been continuously officiated for years
togath"! in the vacancies of direct recruits and thus could not be pushed F
down for determining tbe seniority and shown as juniors to the contest-
ing appellants.

The High Court allowed the Writ Petition in part. It was held that
5% quota to be filled up by promotion from Upper Division Assistants of
Excise Department was notified only on 31st March 1975, whereas the G
appellants have been promoted in the 5% quota of vacancies of the year
1974-75 .. Hence they have not been promoted in the 5% quota. The
Respondents in the present appeal were promoted as Excise Inspectors
on 24.4. 74 in the quota of direct recruits and thus they could not be
'( shown as juniors to those who were promoted and joined on 7.5.76 from
5% quota of the 1974-75 year vacancies. The High Court quashed the H

193
194 SUPREME COURT REPORTS [ 1990] 2 S.C.R.

gradation list and directed the State Government to draw up a fresh list
A
in the light of the observations made. Further it held that State Govern-
ment is the competent authority to determine inter se seniority, because
no where in any provisions of Bihar Excise.Act 1915 government has
vested the Exci•e Commissioner with the power of determining the
seniority of the Excise Inspectors. Hence the gradation list prepared by
B the State Government is legal and vr\id.

The appellant• filed Special Leave petition in this Court against the
High Court Judgment and Order. .l;
Allowing the Special Leave Petition, this Court,
c HELD: The appellants claimed to be promoted to the posts of
Inspectors in the 5% quota set apart for promotion from the Upper
Division Assistants against the vacancies of the year 1974-75. Since
under Bihar Excise Act 1915 vide notification No. 417 of 15.1.1919 .A.
clause (iv) the Excise Commissioner was given only the powers to ap-
D point Excise Inspectors by promotions but no_t to determine inter se
seniority etc. Hence vide Excise Re<Tuitment Rules 1936; Rule No. I
vide notification No. 411 dated 31.3. 75, after clause (2) clause (3)
was added making provision for promotion from selected confirmed
Upper Division Assistants and Head Clerks of the District Excise Office
and also added at the end of the Rule I that at least 5% of the
E total vacancies shall be filled up by promotion from among the above
notified staff. In this rule the provision for relaxation of direct
recruitment quota was made but there was no relaxation of the quota of
promotees. [197G; I98C; 199EJ

The State Goverment made this decision and order on 20.3. 74 .J
F regarding reservation of 5% of the total vacancies to be filled by promo-
tion for the year 1974-75 but the notification to that effect was published
on 31.3.75. The promotion could not have been given unless the deci-
sion was confirmed by notification. It was only after the notification of
31.3. 75, that the Upper Division Assistants were promoted as Excise
Ins_pectors for the first time out of the 5% quota created in the vacancies·
G of 1'174-75, in the year 1976. [205G-H; 2068]

The Government has rightly promoted the appellants within their
quota in the vacancies occurred in 1974 by its orders. [211D]

When there is no relaxation in the quota vacancies as between
H the direct recruitment and promotees, the determination of inter se
A.P. SINGH '· STATE OF BIHAR 195

seniority shall be determined in the order of rotation of vacancies
reserved for both categories, the direct recruits made within their quota A
would always deemed to he senior to those promotees recruited in-
excess of their quota. [llOH; llJA)

V.B. Badami v. State of Mysore, AIR 1980 SC 1561; A.
Janardhana v. Union of India & Ors., AIR 1983 SC 769 and O.P. B
Sing/a & Anr. v. Union of India & Ors., AIR 1984 SC 1595, relied on.

It is only when the quota rule was not adhered to or followed for a
long time and the promotees are allowed to officiate in the quota of
direct recruits for a period of 15 to lO years, in such circumstances
Government is empowered to relax the quota rule and the promotees
will have seniority from the date of the continuous officiations in the c
cadre, grade or service. [210 F J

Narendra Chadha v. Union of India, AIR 1986 SC 638 and G.S.
Lamba & Ors. v. Union of India & Ors., [1985] 3 SCR 431
D
Quotas are fixed under the relevant rules of recruitments and can
he altered only by fresh determination of quotas under the relevant
rules of recruitments. [20 IC J

In the instant case. there was no rule for relaxation of the quota.
The respondent Nos. 3 & 4 who were pro1noted fro1n selected Excise E
Suh-Inspectors to the Inspectors of Excise in 1974, officiated till
7.5.1976 when the appellants joined as Inspectors of Excise from their
5% quota. It cannot he said in such circumstances that the quota was
not filled up for a long period nor can it he said that the respondents 3 &
4 who were promoted in excess of their quota have worked as inspectors
of Excise for long time and as such the respondents 3 & 4 cannot claim F
to be seniors to the appellants. LUOG-H; 21 IA)

The appellants being promoted as Inspectors of Excise from the
5% quota of vacancies of the year 1974-75, were rightly shown as seniors
in the gradation list prepared by the Government on 9.J.1986 whkh is
legal and valid. [2110] G

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1613
of 1990.
(
From the Judgment and Order dated 1.4.1987 of Patna High
Court in Civil Writ Jurisdiction Case No. 4097 of 1985. H
196 SUPREME COURT REPORTS I 1990] 2 S.C.R.

A R.K. Garg, Praveen Swarup and Pramod Swarup for the·
Appellants.

M.K. Rammurthi, L.R. Singh, B.B. Singh, D.P. Mukherjee r
and M.P. Jha for the Respondents.
B
The Judgment of the Court was delivered by

RAY, J. Arguments heard. Special Leave granted.

This appeal on Special Leave is directed against the Judgment
and Order dated April 1, 1987 passed by the High Court, Patna m
c C.W.J.C. No. 4097/1985 allowing the writ petition in part. The subject
matter of the writ petition is the gradation list dated 9 .1.1986 of tne
Inspectors of Excise by which the Government of Bihar has finally
fixed the inter se seniority of the petitioners (respondents in this Ap· ·
peal) who were promoted vis-a-vis the respondents Nos. 3 and 4 . _...._
l appellants in this appeal) who are promoted to posts of Inspectors of
D Excise in 5% quota for prom:>tion from the posts of Upper Division
Assistants of Excise Department in the said Civil Writ Petition ..

The matrix of this case in short is that the appellants Nos. 1 and 2
who were respondents 3 and 4 of the writ petition were promoted to
the posts of Excise Inspectors from among the Upper Division
E Assistants of the Excise Department against the vacancies of the year
1974-75 and they joined as Inspectors of Excise on May 7; 1976. The
respondent Nos. 3 and 4 who were Sub-Inspectors of Excise were
promoted on 24.4.74 in the vacancy of the year 1974-75 by the
Commissioner of Excise, Bihar. In the gradation list prepared by the
Government on January 9, 1986 the appellants were shown as seniors
F to the respondents even though ihe respondents were promoted from
selected Sub-Inspectors of Excise and they joined the posts of Excise
Inspectors earlier than the date_ when the appellants were promoted as
Excise Inspectors. This has been challenged by the respondents on the
ground that there is an apparent error commited by the State in show-
ing the respondents juniors to the appellants in the gradation list. The
G gradation list was challenged mainly on. two grounds namely:

( 1) the State Government has no jurisdiction to determine the
seniority of Excise Inspectors and the only competent authority
for determinging the same was the ExCise Commissioner who has
neither determilled the seniority nor prepared the gradation list.
H
A.P. SINGH v. STATE OF BIHAR {RAY, l.] 197

(2) The respondents (petitioners of the writ petition) have
continuously officiated for years together in the vacancy of direct A
·~
recruits and merely because the respondents were appointed
against the vacancy of direct recruits they could not be pushed
down for determining the seniority and shown junlor to the con-
testing appellants. The writ petition was allowed by the High
Court holding that the respondents were not appointed in the 5% B
quota set apart for being filed up by promotion from the posts of
Upper Division Assistants in the Excise Department inasmuch
as this quoa was notified by the Government on March 31, 1975
) even though the Government passed order providing 5% of the
total vacancies to be filled by the promotion from among the
selected Upper Division Assistants and selected Head Clerks. It
has, therefore, been contended that the petitioners Nos. 3 and 4 c
(respndents Nos. 3 and 4 in this appeal} cannot be shown as
juniors to the appellants. Moreover it has been alternatively
urged that these respondents having been promoted to the posts
of Inspectors of Excise in the quota of direct recruitment for
several years, they could not be pushed down and the appellants D
who joined on promotion to the posts of Inspectors of Excise
subsequently cannot be shown as senior to the respondents Nos.
3 and 4 in the said gradation list. The High Court, Patna after
hearing the parties held that the respondents Nos. 3 and 4 who
were appointed in the vacancies of the promotees of the year
1974-75 and who joined as Inspectors on 24.4.1974 cannot be E
made juniors to appellants Nos. 1 and 2 who were promoted and
joined two years later on 7.5.1976. The High Court allowed the
writ petition in part by quashing the gradation list (Annexure 15)
and directed the Government to draw up a fresh gradation list in
the light of observations made therein.
F
It is against this judgment and order passed in C.W.J.C.
No. 4097/85, the instant appeal on special leave has been filed by the
appellants.

The only question that falls for consideration in this appeal is
whether the appellants who claim to be promoted to the posts of G
Inspectors of Excise in the 5 % quota set apart for promotion to the
posts of Inspector of Excise from among the Upper Division Assistants
of the Excise Department against the vacancies of the year 1974-75 had
been promoted in this quota. In order to decide this. question, it is
relevant to refer to certain provisions of the Bihar Excise Act, 1915 as
well as Rules 1 & 4 of the Inspectors of Excise Recruitment Rules, 1936. H
198 SUPREME COURT REPORTS [1990] 2 S.C.R.

A Section 2(7) of the Bihar Excise Act, 1915 (hereinafter referred
to as Act) defines Excise Commissioner "as the Officer appointed
under Section 7 sub-section 2 clause (a) of the said Act". Section 7
Sub-Section (2)(a) provides that the State Government may appoint
an officer who shall subject to such control as the State Government
B may direct, have the control of the administration of the Excise
Department and the collection of the excise revenue. Section 7(2)(a)
further provides that the State Government may delegate to the
Board, the Commissioner.of a Division or the Excise Commissioner all
or any of the powers conferred upon the State Government by or
under this Act except the powers conferred by Section 89 to make
Rules. Section 7(2)(f) provides that the State Government may with-
e .draw from any officer or person all or any of the powers or duties
conferred or imposed upon him by or under this Act. By Notification
No. 417 dated January 15, 1919, in exercise of the powers conferred
under the Act, the Lt. Governor in Council was pleased to make in
clause (ii) of the Notification order to the effect that there shall be an
Excise Commissioner who shall subject to the control of the Board will
D
have throughout the province of Bihar the c_ontrol of the administra-
tion of the Excise Department and the collection of excise revenue. It
has also been provided in clause (iv) of the Notification that the power
to appoint by promotion Inspector of Excise was delegated to the
Excise Commissioner by the Government.
E
Thus, it is clear and apparent that the Excise Commissioner has
been delegated the powers by the State Government to appoint by
promotion from selected Sub-Inspectors of Excise, but nc<-1here it has
been mentioned in any of those provisions that the Excise Commis-
sioner has been vested with the power of determining the seniority of
the Inspectors of Excise. Therefore, the submission that the seniority
F
list or the gradation list prepared by the State Government is un-
authorised being beyond the powers of the State Government is unsus-
tainable and the gradation list that has been prepared on January 9,
1986 by the State Government is legal and valid as upheld by the High
Court. ·
G It is necessary to refer to the recruitment rules to dytermine
seniority. Rule 1 of Excise Recruitment Rules, 1936 reads as follows:
•
"l. Inspectors of Excise and Salt shall be appointed:

(i) by direct recruitment by the Board of Revenue, or,
H
A.P. SINGH v. STATE OF BIHAR !RAY, J.] 199

(ii) by promotion of selected Sub-Inspectors by the Com-
A
missioner of Excise and salt.

Not more than 25 per cent of the vacancies shall
ordinarily lie filled by direct recruitment; but with the
approval of the Board of Revenue on the recommendation
of the Commissioner of Excise this proportion may on any B
occasion, be increased to 50 per cent".

Later on by Notification No. 1451 dated 2.3.1945 published in
the Bihar Gazette on March 7, 1945, the expression "not more than"
in the last paragraph of Rule 1 has been deleted. Subsequently by
Government Notification S.O. 411, dated 3.lst March, 1975 published
in the Bihar Gazette, Extra-ordinary Issue on that day, after clause (2)
c
or rule l clause (3) has been added and it reads as follows:

"by promotion from among selected confirmed Upper Di-
vision Assistants of the Excise Commissioner's office and
selected confirmed Head Clerks of the District Excise D
Offices".

By the said notification the following has been added at the end
of rule l "Atleast 5 per cent of the total vacancies shall be filled by
promotion from among the selected Upper Division Assistants and
selected Head Clerks." E

Thus on a perusal of the said rule as amended clearly it indi-

-- cates that 25% of the total vacancies for the post of Inspectors of
Excise shall be filled by direct recruitment, 70% shall be filled by
promotion from among the selcted Sub-Inspectors and 5% shall be
filled by promotion from among the confirmed Upper Division Assistants of F
the Exc!se Commissioner's Office and confirmed Head Clerks of the
District Excise Offices. The 25% quota of direct recruits can be
rel.axed and increased to 50 per cent. It is significant to note in this
connection that no provision has been made in the said rules for rela-
xation of the quota of promotees. The necessary question arises if the
promotion from Sub-Inspectors of Excise to the post of Inspectors of G
Excise have been made in excess of the quota of the promotees in the
vacancy of direct recruits and later. on direct recruitment has been
made the promotees can in such circumstances be treated to be juniors
to the direct recruits or not. This question was under consideration
before this Court in the case of V.B. Badami v. State of Mysore,
A.l.R. 1980 SC 1561. In this case The Mysore Administrative Service H
200 SUPREME COURT REPORTS I1990] 2 S.C.R.
(Recruitment) Rules, 1957 classified class l posts into two categories:
A
senior scale posts and the junior scale posts. Two-thirds of the junior
class I posts were filled by promotion from Class II officers and the
balance one-third by direct recruitment by the Public Service Commis-
sion. By the Mysore Recruitment of Gazetted Probationers Rules,
1959, the quota for direct recruitment to the Mysore Administrative
B Service was increased from one-third to two-thirds for a period of five
years as a consequence of which the quota for promotees had been
reduced to one third, Rule 17(b) of the 1957 Recruitment Rules em-
powered the Government to fill up posts· temporarily by promotion
against vacancies fot direct recruits but such promotees were liable to
be reverted after the appointment of direct recruits.
c In January 1972, a Gradation List was published in which the
direct recruits (respondents) were shown as senior to the appellants.
The appellants challenged the seniority of the respondents in writ
petitions on the ground mainly that the respondents were recruited
only to the 20 temporary posts created and that the appellants and 51
D others were appointed to 59 permanent vacancies. The appeal was
dismissed by this Court and it has been observed as follows:

"The principles generally followed in working out the
quota rule are, (i) Where rules prescribe quota between
direct recruits and promotees confirmation or substantive
E appointment can only be in respect of clear vacancies in the
permanent strength of the cadre; (ii) confirmed persons are
senior to those who are officiating; (iii) as between persons
appointed in officiating capacity, seniority is to be counted
on the length of continuous service; (iv) direct recruitment
is possible only by competitive examination which iHhe
F prescribed procedure under the rules. In promotional
vacancies, the promotion is either by selection or on the
principle of Seniority-cum-merit. A promotion could be ·- ..
made in respect of a temporary post or for a specified
period, but direct recruitment has generally to be made
only in respect of a clear permanent vacancy, either exist-
G ing or anticipated to arise at or about the period of proba-
tion is expected to be completed; (v) if promotions are
made to vacancies in excess of the promotional quota, the
promotions may not be totally illegal but would be irregu-
lar. The promotees can not claim any right to hold promo-
tional posts unless the vacancies fall within their quota. If
H the promotees occupy any vacancies which are within the
A.P. SINGH v. STATE .OF BIHAR [RAY, J.J 201

quota of direct recruits, when the direct recruitment takes
A
place, the direct rectuits will occupy the vacancies within
~ their quota. Promotees who. are occupying the vacancies
within the quoia of direct recruits will either be reverted or
they will be absorbed in the vacancies within their quota in
the facts and circumstances of the case; and (vi) as long as
the quota rule remains, neither promotees can be allotted B
to any of the substantive vacancies of the quota of direct
recruits nor direct recruits can be allotted to promotional
vacancies; and (vii) quotas which are fixed are unaltrable
l
--· according to exigencies of the situatibn. They can only be
altered by fresh determination of quotas under the relevant
rules. One group either on the ground that the quotas are
not filled up or that because there had been a number in
excess of the quota the same should be absorbed depriving
c
the other group of quota."
,..~.
~
It thus emanates from the said Judgment of this Court that when
promotion has been made in excess of the quota the promotees who D
have been promoted in the quota of direct recruits will be pushed
down and will be absorbed in the quota of promo tees of subsequent
years and the direct recruits made within their quota would-be deemed
to be senior to those promotees recruited in excess of their quota.

_... 'In the case of A. Janardhana v. Union of India & Ors., AIR 1983 E
" SC 769 the question of determination of seniority between the direct re-
cruits to the pdst of Assistant Ei\ecutive Engineer (AEE) and the
promotees from the post of Assistanl'Engineer fell for consideration. The
Military Engineer Services Class ·I (Recruitment, Promotion and
~
.... Seniority) Rules ( 1949 Rules for Short) were brought into operation
on or from 1.4.1951. Under Rule 3 and 4 of 1949 Rules the recruitment F
to MES Class I was to be made from two sources, namely, by competi-
tive examination in accordance with Part II of the Rules and by pro-
motion in accordance with Part III of the Rules. Rule 4 prescribed a
quota of 9: l between direct recruits and promotees. During the years
1962, 1963 and 1964 particularly and until the year 1969, the Class I
Service Rules were not statutory in character. The Union Government G
relaxed the Rules both in regard to recruitment by interview and in
regard to the quotas fixed by the Rules for direct recruitment and
recruitment by promotion to Class I Service. Th~ 1949 Rules and the
"t' subsequent amend.ments thereto acquired statutory flavour in charac-
ter by incorporation only in 1969 and til.l then they were mere ad-
'; ministrative instructions. H
202 SUPREME COURT REPORTS I1990] 2 s.C.R.
ft was -due· to emergency situation in the market of recruitment of
A engineers between 1959 and 1969 and the dire need of urgently recruit-
ing engineers which led the Government to make recruitmeq,t m rela-
xation of quota rule by foregoing the competifr e examinatlo11. jind
promoting subordinate ranks to Class I Service. Appellant and siriri"
Iarly situated persons were thus promoted to meet th_e dire need of
B service in relaxation of the quota rule.

It has been observed by this Court that when recruitment is from
two independent sources, subject to prescribed quota, but the power is ·
conferred on the Government to make recruitment in relaxation of the ..L
rules any recruitment made contrary to quota rule would not be invalid
unless it is shown that the power of relaxation was exercised IJ)a/a fide.
c It was also observed that the recruitment made to meet the exigencies
of service by relaxing the quota rule the promotion in excess of quota
would be valid. It had further been observed that once the quota rule
' was fully relaxed between 1959 and 1969 to suit the requirements of
service and the recruitment made in relaxation of .the quota rule and
D the minimum qualification rule for direct recruits was held to be valid,
no effect could be given to the seniority rule enunciated in Para 3(iii)
of Appendix V of the 1949 Rules, which was wholly interlinked with
the quota rule and could not exist apart from it on its own strength.
This was impliedly accepted by the Union Government and was
implicit in the seniority lists prepared in 1963 and 1967-68 in respect of
E AEE, because both those seniority lists were drawn up in accordance
with the rule of seniority provided in Army Instruction No. 241 of
1950.

It has been further held that there was no justification for
redrawing the seniority list affecting persons recruited m promoted
F prior. to 1969 when the rules aquired statutory character. Therefore,
the 1974 seniority list was liable to be quashed and the two 1963 and
1967 seniority lists must hold the field.

In Shri O.P. Sing/a and another v. Union of India & Ors., AIR
1984 SC 1595 the question of inter se seniority between promotees and
G direct recruits came up for consideration before this Court. Delhi
Higher Judicial Service was constituted on May 15, 1971. It was gover-
ned by the Delhi Higher Judicial Service Rules, 1970. Rule 7 provides
that the recruitment to the service will be made from two sources i.e.
by promotion on the basis of selection from members of the Delhi
Judicial Service, who have completed not less than ten years of service
H in the Delhi Judicial Service and by direct Recruitment from the Bar
A.P. SINGH v. STATE OF BIHAR [RAY, J.] 203

provided that not more than !/3rd of the substantive posts in the
service shall be held by direct recruits. The seniority of direct recruits A
vis-a-vis promotees shall be determined in the order of rotation of
vacancies between the direct recruit and promotees based on the
quota of vacancies reserved for both categories. Rule 7 provided that
the first available vacancy will be filled by a direct recruit and the"next
two vacancies by promotees and so on. B

It has been obse_rved that persons who are appointed or pro-
moted on an ad hoc basis or for fortuitous reasons or by way of a
) stop-gap arrangement cannot rank for purposes of seniority with those
who are appointed to their posts in strict conformity with the rules
of recruitment, whether such latter class of posts are permanent or
temporary. c
It has also been observed that persons belonging to the Delhi
Judicial Service who are appointed to temporary posts of Additional
District and Sessions Judges on an ad hoc basis or for fortuitous
reasons or by way of a stop-gap arrangement, .constitute a class which D
is separate and distinct from those who are appointed to posts in the
Service in strict conformity with the rules of recruitment. In view of
this, the former class or promotees cannot be included in the list of
seniority of officers belonging to the Service.

- It has, therefore, been held that those who are appointed to the
post of Additional District and Sessions Judges on ad hoc basis for
fortuitous reasons cannot be taken into consideration in determining
the seniority of the members of the Service.
E

.__ In the case of G.S. Lamba & Ors. v. Union of India & Ors.,
[ 1985) 3 SCR 431 the question of inter se seniority between direct F
recruits and promotees cropped up for consideration before this
_ Court. The Indian Foreign Service Branch 'B' was constituted in 1956.
The statutory rules Indian Foreign Service Branch 'B' (Recruitment,
Cadre, Seniority and Promotion) Rules·, 1964 were enforced on or
from May 6, 1964. It provided for recruitment from three sources;-
G
( 1) direct recruitment on the result of a competitive examination
held by the Union Public Service Commission

" (2) substantive appointment of persons included in the selective
list promoted on the basis of a limited competitive examination
held by the Union Public Service Commission and H
20_4 SUPREME COURT REPORTS I 1990] 2 S.C.R.

_(3) Promotion on the basis of seniority
A

By a notification dated February 12, 1975, Rule 13 was amended ,.---
to provide that recruitment to the three different sources of integrated
Grades II and III to be:

8 ( l) l/6th of the substantive vacancies to be filled in by direct
recruitment

(2) 33 1/3 % of the remaining 5/6 of the vacancies to be filled on
the basis of results of the limited competitive examination and J,
(3) the remaining vacancies to be filled in by promotion on the
c basis of seniority.

The petitioners were selected by the Union Public Service Com-
mission on the basis of the merit obtained at the examination of _ --'~
Assistants conducted for the purpose for appointment to the post and ~
D allocated to the Ministry of External Affairs. After the initial constitu-
tion of the service of 1956, they were nffered an option whether they
would like to join the I.F.S. Branch 'B' in grade IV. They opted and
were inducted into the service. Later they were promoted between
1976 and 1979 from Grade IV to the integrated Grades II and III. The
Government of Ir.dia published a seniority list of the integrated
E Grades II and III as on June 25, 1979 and before objections taken by
the petitioners to the seniority list were dealt with, another seniority
list was publised on June 30, 1983. This list was assailed by the
petitioners on the ground that it is discriminatory and is consequently
violative of Article 14 and 16 of the Constitution. This Court upheld
their contention and quashed the seniority list. The Union Govern- _.
F men! was directed to prepare a fresh seniority list. In the instant case
direct recruitment had not been_ presumably made in excess of the
quota and the promotees were appointed to substantive vacancies in
the service and they had been holding the posts for over 6 to 8 years. In
--
the seniority list that was prepared the direct recruits who were
promoted much later to the promotees in excess of their quota were
G shown senior to the promotees, it has be,en held that once the pro-
motees were promoted regularly and they have been officiating for a
number of years the continuous officiation confers on them an
advantage of being senior to the later recruits under Rule 21( 4). It has
been further observed that if there has been an enormous departure
from the quota fixed by exercising the powers to relax, the quota rule
H was not adhered to, the rota rule for inter se seniority as prescribed in
A.P. SINGH v. STATE OF BIHAR !RAY, J.] 205

Rule 25(i) and (ii) cannot be given effect. In tne absence of any other
A
valid principle of seniority it has been held that continuous officiation
in the cadre, grade or service will provide a valid principle of seniority.

It has been held that where the direct recruitment had not been
made according to the quota for years and promotions have been made
in excess of the quota and the promotees were appointed in the vacan- B
cies of the direct recruits and work for a number of years, the quota
rule cannot be given effect to and the promotees cannot be shown as
junior to the direct recruits in the seniority list. Continuous officiation
) in the cadre, grade or service will provide a valid principle of seniority.
Seniority List was, therefore, quashed and set aside.

In the case of Narendra Chadha v. Union of India, AIR 1986 SC
c
638 there was a quota rule for filling up the vancancies from two
sources-by direct recruitment as well as by promotion. The direct
__ >..._ recruitment was not made for number of years and the posts of direct
·- recruits were filed up by promotion. The promotees were allowed to
function in the promoted posts for 15 to 20 years. Thereafter direct D
recruitment was made. There was a rule which empowers the Govern-
ment to relax the quota. It was held that whenever a person is
appointed in a post without following the rules prescribed for that
appointment to the post, he should not be treated as a person regularly
appointed to that post. Such a person may be reverted from that post
but in a case where persons have been allowed to function in higher E
- ' posts for 15 to 20 years without due deliberation it would be unjust to
hold that they had no claim to such posts and could be reverted uncere-
moniously or treated as persons not belonging to the service at all

.
_.- particularly where government is endowed with the power to relax the
rules to avoid injustice. It has been held by this Court that continuous
t.. officiation of the promotees could be justified on the basis of the rule F
16 on the presumption that the Government had relaxed the rules and
_appointed the promotees to the posts in question to meet the
administrative requirements.

In the mstant case undoubtedly, the Government made an order
on 20.3, 1974 for reservation of 5% of the posts for recruitment by G
promotion from among selected confirmed Upper Division Assistants
of the Commissioner's Office and the selected confirmed Head Clerks
of the District Excise Offices. Pursuant to that order, the Govem-
·-y ment later on publised a Notification S.O. 411 in the Bihar Gazette on
March 31, 1975 stating therein about the quota of 5% of total vacan-
cies reserved for the promotion of the selected Upper Division H
206 SUPREME COURT REPORTS I 19901 2 S.C.R.
A Assistants to the post of Inspectors of Excise. It has been urged by the
learned counsel appearing on behalf of the respondents that the
respondent Nos. 3 and 4 being promoted and appointed as Inspectors
of Excise from the 75% quota for promotion from selected Sub-
Inspectors of Excise in April, 1974 they cannot be shown as junior to
the appellants, in the seniority list inasmuch as the appellants were
B appointed on 7.5.1976. It has been further submitted in this connec-
tion that the appointment of the appellants on promotion from the 5%
quota of the vacancies available in 1974 cannot be made. It has also
been submitted that the Notification referring to the 5% quota for
promotion of Upper Division Assistants cannot be deemed to be a
quota in respect of vacancies for the year 1974-75. As such quota
cannot be enforced unless and until the reservation of 5% quota of
c vacancies is published in the official gazette for information of the
public. In support of this submission the decision in Harla v. State of
Rajasthan, [1952] SCR 110 was cited at the Bar. In this case on
11.12.1923 the counsel passed a resolution which purported to enact a
law called The Jaipur Opium Act and the only question was whether
D the mere passing of the resolution without promulgation or publication
in the Gazette or by other means to make the Act known to the public
was sufficient to make it a law and enforce the same. There was an
amendment of Section 1 of the Jaipur Opium Act to the effect that it
shall came into force from 1.9.1924. The Act was never published in
the Gazette. It was held that the Jaipur Laws Act 1923 which required
E the whole of the Act to be published instead of publication of only one
section, will not validate the same. In the instant case, the Govern-
ment made an order reserving 5% of the total vacancies in a year for
being filled in by promotion from the selected Upper Division As-
sistants and Notification to that effect was published in the Gazette in
March, 1975. This Notification related to the vacancies for the year
F 1974-75 i.e. the year ends on March 31, 1975. It is pertinent to refer to
the specific averments made by Excise Commissioners, Government of
Bihar, on behalf of the respondent Nos. I and 2-The State of Bihar
and Commissioner-cum-Secretary, Excise and Prohibition, Govern-
ment of Bihar.

G It has been stated in paragraph 3 of the Counter Affidavit:

"That the promotion of the petitioners were caused in the
Quota of 5% which was given to the petitioner by a Notifi-
cation dated 31.3.1975 which is annexed in the petition as
Annexure-A but due to the noting given in the File, firstly
H by the Member of Board of Revenue on 20.3.1974 and the
A.P. SINGH v. STATE OF BIHAR (RAY, J.] 207

same has caused promotion to the petitioner which should
A
not have been done unless there is a notification in effect to
the noting given by the State Government."

Noting given by the Board is reproduced herein below:

"5% quota in the cadre of Excise-Inspector is given from B
the cadre of confirmed Upper Division Clerks, Excise
Commissioner's office and confirmed Head Clerks of Dis-
trict offices."
)
1t has been further stated that in the year 1976 the Secretary of the
Commission, Excise Department gave a note whose English transla-
tion is given below: c
"As stated at page 22 of the notesheet that the pay scale of
Upper Division Assistants is more than the Head Clerks
and therefore they will rank senior on that basis. So first of
all the question of promoting Sarvasri Awadh Prasad Singh D
and Ram Vriksh Pd. Singh's against the vacancy at Roster
67 and 68 has to be considered. The question of promotion
of Sarvasri Vidyadhar Ghatwari and Devendra Narain Pd.
would be considered against future vacancies and therefore
it is proposed to keep their names in the waiting list
E
Sd/-Ravikishore Narain
26.4.1976"

It has been further stated in paragraph 5 of the said affidavit that the
Excise Commissioner accordingly passed an order in the year 1976,
~ which is dated 5.5.1976, promoting the petitioner in accordance with F
the quota. The English translation of the same is as follows:

"So far the question of promotion of Assistants/Head
Clerks is concerned the rule has been framed in 1974 and
for the first time pror.iotion is being given on this account. I
have carefully gone through the above rules and from G
perusal of the file it would appear that only 5% of the total
vacancies shall be filled in by the promotion. Jn the rule,
the word 2% at least" has come perhaps inadvertantly in
"at least 5%:'.There is no such mention in the file. On this
basis, as has been mentioned in the note of the Secretary
only two posts have to be filled up from the quota of H
208 SUPREME COURT REPORTS [ 1990] 2 S.C.R.

Assistants. So far as the persons by whom the filling up of
A
the vacancies are concerned, I agree with the note of the
Secretary marked 'Kh' in the notesheet i.e. at present
'/"-
Awadh Prasad Singh and Ram Brikh Pd. Singh should be
promoted. The name of Vidyadhar Pd. and Devendra
Narayan Pd. should be kept in the waiting list."
B
It has been further stated that the Notification giving 5% quota
which is annexed in the petition as Annexure-A from the grade of
Assistant/Head Clerks came into picture only on 31.3.1975 on the
basis of order made by Government in March, 1974. However, the
petitioners were promoted on the vacancies caused in the year 1974-
75, because the decision was taken in the year 1974 itself and accord-
c ingly the Department carried out the same and accordingly a Grada-
lion List was prepared.

A counter affidavit has also been filed on behalf of the respon- - _,.,._
dent Nos. 6 & 7, that is, promotees, Inspectors of Excise. It has been
D stated in paragraph 6 that the rules of recruitment of Inspectors of
Excise were modified by Notification No. 411 dated 31.3.1975. There
was no provision in the Excise Act and Rules for appointment of
Inspectors of Excise from among selected Assistants of Commissioner's
office and Head Clerks of the District Excise offices prior to this
Notification. This Notification for the first time required the Depart-
E ment of Excise to fill at least 5% of the total vacancies by promotion
from among the confirmed Upper Division Assistants and selected
Head Clerks. The respondents were promoted as Inspectors of Excise
from Sub-Inspectors of Excise vide Order 2091 dated 24.4.1974 in
--
'

their own quota and joined the promotional posts on 1.5.1974. It has ~

also been stated that the appellants were appointed Inspectors of Ex-
,J
F cise in the year 1976 and joined on 7.5.1976. Apparently there was no
quota for appointment of Inspectors of Excise from among Assistants
and Head Clerks in the year 1974 and the averments made by the
respondent State or appellants to this effect is ma/a fide, ridiculous and
false. The appellants being appointed in the year 1976 by virtue of the
---
Notification which came into existence on 31.3.1975 cannot claim this
G vacancy of 1974 and hence seniority allotted to them by the respon-
dent-State was in flagrant, violation of law laid down by the Supreme
Court and hence the High Court rightly allowed the C.W.J.C.
No. 4097 /85 against the appellants herein.
y'

In the supplementary rejoinder affidavit on behalf of the appel-
H !ants it has been stated in paragraph 4 that the State of Bihar has
A.P. SINGH v. STATE OF BIHAR [RAY, J.] 209

proved the appellants, right to promotion on a vacancy that occurred
A
in 1974 by the following clear admissions made by the State of Bihar in
its counter affidavit.

"So far the question of promotion of Assistants or Head
Clerks is concerned, the rule has been framed in 1974 and
for the first time promotion is being given on this account." B

"However, the petitioners were promoted on the vacancies
) caused in the year 1974-75, because the decision was taken
in the year 1974 itself and accordingly the Deparment car-
ried out the same."

It has also been stated in paragraph 5 of the said Rejoinder: c
"That the Government who was clearly conscious of the
rights created by the decision to amend the Rules taken in
1974 and in accordance with the decision a Notification was
issued later in March 1975. But the ministerial failure to D
make the Notification conformed to the decisions taken in
1974 is no more than a clerical error and th" Government
therefore rightly promoted the petitioner within their
quota against the vacancies occurred in 1974 by its Order."

It has been further stated in paragraph 10 of the said rejoinder: E
"That there is a provision of seniority of Excise Inspector
in Rule 6 of Recruitment Rules vide notification no. 54
dated 3. I .1936 for Excise Inspector. It is clearly stated that
the seniority of all Inspectors on confirmation will be
determined in accordance with Government Order No. F
6509/A dated 12.12.1934 which is still in force. Besides
there are also Government instructions with regard to
seniority such as letter No. 15784 dated 26.8.1972. The
High Court ought to have considered the Rules of seniority
when the case related to the seniority of Excise Inspector."
G
In paragraph 11 it has been further averred:

"That in view of the clear admission of the Government the
petitioners are entitled to the benefit of promotion with
effect from as against the vacancies of 1974 as fixed by the
Government and the High Court order is liable to be set H
aside and the appeal may be allowed."
210 SUPREME COURT REPORTS I 1990] 2 S.C.R.

It thus appears from a perusal of the Affidavit-in-counter sworn
A by the Commissioner of Excise on behalf of the State of Bihar, the
respondent Nos. l and 2, that the order creating 5% of the vacancies
for promotion from the posts of confirmed Upper Division Assistants
and selected Head Clerks have been made by the Notification dated
31.3.1975, though according to the noting given in the File by the
Member, Board of Revenue on 20.3.1974 on the basis of the Govern-
B
ment Order the petitioners (appellants of this appeal) were promoted
in the vacancies of the year 1974-75' by order of the Excise Commis-
sioner dated 5.5.1976. Therefore, the argument on behalf of the
respondents in this appeal that the appellants were promoted against
the 5% quota in respect of the vacancies of the year 1975-76 is not
.sustainable. The appellants having been appointed in the quota of 5%
c out of the vacancies of 1974-75 are entitled to be shown as senior in the
gradation list prepared by the Government on 9 .1.1986. We have
already mentioned hereinbefore that the respondent Nos. 3 and 4 were
promoted from the selected Sub-Inspectors Excise, that is, in the 5%
quota reserved for promotion from the Upper Division Assistants of
the Excise Department. In accordance w~th the decisions rendered by
D this Court in the case of V.R. Badami v. State of Mysore, (supra) the
respondent Nos. 3 and 5 who were promoted to officiate in the 5%
quota of Upper Division Assistants and confirmed Head Clerks are to
be pushed down as soon as the appellants have been recruited in the
said quota to the posts of Inspectors of Excise in 1976 inasmuch as the
promotion though not illegal is irregular and the promotees are to be
E accommodated in the vacancies of subsequent years in their quota. It
is only in the case of Narendra Chandha v. Union of India, (supra)
exception was made by this Court to the aforesaid' decision on the
ground that the quota was broken down or not adhered to as there was
no recruitment from the quota of direct recruits for a period of 15 to 20
years and the promotees were allowed to officiate in the quota of
F direct recruits for a long period of 15 to 20 years, in such circum-
stances, it was held that in view of Rule 16 empowering the Govern-
ment to relax the quota rules, the promotees officiating in the vacan-
cies of direct recruits were presumable permitted to do so in relaxation
of the quota as such the seniority will be determined from the date of
their continuous officiating in the said posts. Similar view has been
G expressed in G.S. Lamba's case (supra). In the instant case there was
no rule for relaxation of the quota nor the respondent Nos. 3 and 4 ·
who were promoted from selected Excise Sub-Inspectors to the Ins-
pectors of Excise in the 5% quota of Upper Division Assistants in 1974
officiated. till 7 .5 .1976 when the appellants joined as Inspectors of
H Excise from their 5% quota. It cannot be said in such circumstances
A.P. SINGH v. STATE OF BIHAR !RAY, J.] 211

that the quota has not been filled up for a long period nor can it be said A
that the respondents 3 and 4 who were promoted in excess of their
quota have worked as Inspectors of Excise for long time and as such
the respondents Nos. 3 and 4 cannot calim to be seniors to the appel-
lants. Moreover, it is evident from the affidavit of the Commissioner
of Excise on behalf of the State of Bihar that the 5% quota of vacan-
B
cies were brought into being by the Board of Revenue of March 20,
1974 though there was delay in notifying the. same in the Gazette till
31.3.1975. Nevertheless, it has been subsequently averred that the
appellants were promoted from the said 5% quota of vacancies of the
year 1974-75.

In these circumstances on a conspectus of the decisions referred c
to hereinbefore as well as of the Government Order reserving 5%
quota of vacancies on 20.3.1974 and subsequent Notification of the
same on 31.3.1975 the only conclusion that follows is that the appel-
lants being promoted as Inspectors of Excise from the 5% quota of
vacancies of the year 1974-75, they were rightly shown as seniors in the
D
gradation list prepared by the Government on 9 .1.1986. The findings
of the High Court to the effect that the appellants were not promoted
in the 5% quota of vacancies for the year 1974-75 is wholly wrong.
Accordingly, the gradation list prepared by the Government on
9. 1. 1986 showing the appellants as seniors to the respondents are quite
legal and valid and so the same is upheld. We, therefore, set aside the
E
judgment and order passed by the High Court in C.W.J.C. No. 4097/
85. In the facts and circumstances of the case, there will be no order as
to costs.

S.B. Petition allowed.