Holding

Direct recruits of the 1990 batch are senior to the 1991 promotees; the Government Order and seniority list are in accordance with Rule 28(iii) and are valid.

Summary

The case concerned the inter‑se seniority between the 1990 direct recruits and the 1991 promotees in the Tripura Civil Service (Grade‑II). The State Government had issued a Government Order (25 May 2000) and a seniority list (9 June 2000) placing the 1990 direct recruits senior to the 1991 promotees, which the promotees challenged as violative of Rule 28(iii) of the Tripura Civil Service Rules, 1967. The Division Bench of the Gauhati High Court had set aside the order, holding it contrary to the quota rule, while the Single Judge had upheld it. The Supreme Court examined the quota principle, noting that seniority is normally based on continuous service unless the quota of direct recruits or promotees is exceeded. Since the quota of direct recruits was not exceeded, the Court held that the direct recruits must retain seniority from their initial appointment and cannot be pushed down. Consequently, the Government Order and seniority list were held valid and the appeal by the direct recruits was allowed, restoring the Single Judge’s decision.

Issues considered

The Government Order dated 25 May 2000 and the seniority list dated 9 June 2000 are contrary to Rule 28(iii) of the Tripura Civil Service Rules, 1967.
Whether direct recruits of the 1990 batch are senior to promotees of the 1991 batch when the quota of direct recruits has not been exceeded.
Whether seniority should be determined on the basis of continuous service length unless the quota is exceeded.

Subjects

Service lawInter‑se seniorityDirect recruitsPromoteesQuota ruleTripura Civil Service RulesGovernment orderSeniorities list

Judgment

[2009) 10 S.C.R. 454

A RADHA MOHAN MALAKAR & ORS.
v.
USHA RANJAN BHATTACHARJEE & ORS.
(Civil Appeal No. 4157 of 2009)

JULY 7. 2'109
B
[R.V. RAVEENDRAN AND MARKANDEY KATJU, JJ.)

Service Law - Seniority- lnter-se seniority between direct
recruits and promotees - By Office Memorandum Promotees
C of 1989 batch placed en-bloc senior to direct recruits of 1990
batch cind promotees of 1991 batch placed enbloc junior to
the direct recruits of 1990 batch - Promotees of 1991 batch
claiming seniority over some of the direct recruits - Single
Judge of High Court negated the claim - Division Bench of
D High court accepted the claim, holding that the Office
Memorandum was contrary to r. 28(iii) of Civil Services Rules
- On appeal, held: Direct recruits have to be treated senior
to the promotees of 1991 batch - The quota of direct recruits
has not been exceeded, their seniority have to be taken from
E the date of their initial appointment and their seniority cannot
be pushed down - The Office Memorandum is not contrary
to r. 28 (iii) - Tripura Civil Services Rules, 1967 - r. 28 (iii).

A Notification dated 25.5.1981, issued by the State
Government, enunciating the principles governing inter-
F se seniority between direct recruits and promotees, was
challenged by promotees. The High Court quashed the
Notification and the same attained finality. State
Government by Memorandum dated 25.7.1997 issued a
draft seniority list in terms of decision of the High Court,
G comprising the seniority list for batches of 1989
(promotees), 1990 {direct recruits) and 1991 (promotees),
placing the promotees, irrespective of their individual
date of recruitment, to their respective slots in the
gradation list on the basis of quota Rota Rules. Thereafter
H 454
RADHA MOHAN MALAKAR & ORS. v. USHA 455
RANJAN BHATTACHARJEE
~

"" Government Order dated 25.5.2000 .governing the A
general principles of relative seniority, clarifying that
persons recruited in excess of the quota, shall not get
rotational seniority in the same calender year and shall
be reverted to the year where they could be
accommodated. The seniority list of existing officers in B
batches of 1989 (promotees) 1990 (direct recruits against
substantive vacancies in the cadre of 1987188) and 1991
t. (promotees) was published by Office Memorandum dated
9.6.2000. Thereby all 1989 promotees were placed en-bloc
senior over 1990 direct recruits and all 1990 direct recruits c
were placed en-bloc senior over 1991 promotees.

Promotees of 1991 batch filed writ petition
challenging the Government Order dated 25.5.2000 and
the Seniority List dated 9.6.2000. They contended that
seniority should have been considered between D
promotees of 1989 and 1991 batch on one hand and
direct recruits on the other hand. Single Judge of High
Court dismissed the petition. Division Bench of High
Court, in intra-court appeal, held the Government Order
and the Seniority List, contrary to the provisions of s. E
28(iii) of Tripura Civil Services Rules, 1967. Hence the
present appeal by some of the direct recruits of 1990
batch.

Allowing the appeal, the Court F
HELD: The Government's order dated 25.5.2000 and
Office Memorandum dated 9.6.2000 are valid and are in
accordance with the Tripura Civil Service Rules, 1967. The
ordinary rule that seniority will depend on the length of-
the continuous officiating service has to be followed G
""' v unless the quota of direct recruits or of the promotees has
been exceeded. It is only if the said quota is exceeded that
the appointees have to be pushed down in the seniority,
otherwise seniority has to be taken from the date of
continuous officiating service. In the present case it is H
456 SUPREME COURT REPORTS [2009] 10 S.C.R.

A admitted that the quota of direct recruits has not been
exceeded. Hence, the seniority of direct recruits
(appellant) has to be taken from the date of their initial
appointment and they cannot be pushed down in
seniority. The promotees (respondents) were appointed
B to the Grade II of Tripura Civil Services, after the
appointments of the direct recruits (appellants). Hence
the former have to be treated as junior to the latter. Since
the quota of direct recruits has not been exceeded, hence
the seniority has to be calculated from the date of the
c initial appointment and the said seniority cannot be
pushed down. [Para Nos.29, 31 and 33) [468·F-H:469-C;
469-F]
'
N. K. Chauhan and Ors. vs. State of Gujarat and Ors.
1977 (1) SCC308; B.S. Mathur and Anr. vs. Union of India
D and Ors. 2008 (10) sec 271, relied on. • .

Mervyn Coutindo vs. Collector of Customs AIR 1967 SC
52; S.G. Jaisinghani vs. Union of India AIR 1967 SC 1427;
V. B. Badami vs. State of Mysore 1967 (2) SCC 901; 0.P.
E Sing/a and Anr. vs. Union of India and Ors. 1984 (4) SCC 450;
Rudra Kumar Sain and Ors. vs. Union of India and Ors. 2008
(8) sec 25, referred to.

Case Law Reference: •
F 1977 (1) sec 308 Relied on. Para 27
AIR 1967 SC 52 Referred to. Para 28
AIR 1967 SC 1427 Referred to. Para 28
1967 (2) sec 901 Referred to. Para 28
G
2008 (10) sec 211 Relied on. Para 32 y ..
1984 (4) sec 450 Referred to. Para 32
2008 (8) sec 25 Referred to. Para 32
H
RADHA MOHAN MALAKAR & ORS. v. USHA 457
RANJAN BHATTACHARJEE
~ CIVIL AP PELLATE JURISDICTION : Civil Appeal No 4157 A
of 2009.

From the Judgment & Order dated 5.4.2006 of the High
Court of Gauhati in Writ Appeal No. 166 of 2004 and order
dated 18.9.2006 in Civil Misc. Application No. 84 of 2006.
B
Krishnan Venugop"al, Rakesh Dwivedi, Dharmendra
Kumar Sinha, Siddhartha, Abir Phukan, Ranjan Mukherjee,
~
Gopal Singh, Manish Kumar, Ritu Raj Biswas, Rahul Dua and
Ankit Dalela for the appearing parties ..
c
The Judgment of the Court was delivered by

MARK.AN DEY KATJU, J. 1. Leave granted.

2. This appeal by special leave has been liled against the
final judgment and order dated 5.4.2006 passed by the High D
Court of Gauhati in Writ Appeal No. 166 of 2004.

3. Heard learned counsel for the parties and perused the
record.
' 4. The dispute in this case is about relative seniority
E
between the direct recruits of 1990 and promotees of 1991 to
the Grade -II of the Tripura Civil Service which has been
~
constituted under the Tripura Civil Service Rules 1967. The
appellants in this case are direct recruits and the respondents
are promotees. F

5. The promotees filed a writ petition before the learned
Single Judge of the Gauhati High Court which was dismissed
on 23.4.2004, but against that judgment a writ appeal was filed
\ by the promotees which was allowed by the impugned G
_..
i judgment dated 5.4.2006 of the Division Bench of the High
Court. Hence this appeal by the direct recruits.

6. The fixation of the in'ter se seniority of the members of
the Tripura Civil Service (in short, 'the TCS') is governed by
H
458 SUPREME COURT REPORTS [2009] 10 S.C.R.

A Rule 28 of the Tripura Civil Service Rule, 1967 (in short, 'the
TCS Rules'). Sub-rule (iii) of Rules 28, which had been the
subject of repeated controversy, read as under:

"The relative seniority of direct recruits and of
promotees shall be determined according to the rotation
8
of vacancies between direct recrujts and promotees which
. shall be based on the quotas of vacancies reserved for
direct recruitment and promotion under rules 5"

7. The Government of Tripura had earlier issued a
C notification, dated 25.5.1981 enunciating the principles
governing the inter se seniority between the direct recruits and
promotees purportedly consistent with Rule 28(iii). The
notification dated 25.5.1981, aforementioned, is reproduced
herein below:-
D
"Government have observed that certain difficulties
have arisen in the implementation of the general principles
of determining seniority of various categories of persons
employed under the Tripura Government, as incorporated
in Tripura Administration's order No. F1 .(16)-GA/59 dated
E
12.7.1960.

2. It is clarified that the rotation and the fixation of relative
seniority of direct recruits and regular promotees shall be
done taking into account only such officers as are
F appointed from either source to the same grade and the
same cadre within any single calendar year.

3. Any final seniority list already notified by the
Government shall not be liable to revision merely because
G of the issue of the present order. (

By order & in the name of the Governor
Sd/- S.R. Sankaran
Chief Secretary to the
H Government of Tripura".
RADHA MOHAN MALAKAR & ORS. v. USHA 459
RANJAN BHATTACHARJEE [MARKANDEY KAT JU, J.]
~ 8. The notification dated 25.5.1981, aforementioned, A
came to be challenged in Civil Rule No. 204/81 by the
promotees of Grade-II of the TCS, who had formed an
association under the name and style of the Association of Civil
Service Officers, Tripura, Agartala. By judgment and order
dated 29. 7 .1992, a Division Bench of the High Court allowed B
the Civil Rule and quashed the impugned notification dated
25.5.1981, aforementioned.
l I

'-- 9. While quashing the said notification dated 25.5.1981,
the Division Bench observed and held inter alia, as follows:
""
c
"It is well settled in a catena of decisions by the
Hon'ble Supreme Court that when there are two sources
of recruitments to a service with a fixed quota, the quota
rule has to be followed and there should not be any
. --<
deviation in following the quota rules. It has also been well D
settled by the catena of decisions by the Hon'ble Supreme
Court that if the promotees happen to occupy the
vacancies which are within the quota of direct recruits,
when direct recruitment takes place, the direct recruits will
occupy the vacancies within their quota and the promotees E
who are occupying the vacancies within the quota of
direct recruits will either be reverted or be absorbed in the
II vacancies within their quota. So also when direct recruits
appointed in the vacancies, which are within the quota of
promotees after the recruitment by promotion taken place F
the promotees will occupy the vacant post within their quota.

It is apparent that by the impugned notification,
rotation and fixation of relative seniority of direct recruits
and promotees has been confined to the recruits of a
calendar year, even if in a calendar year recruitment is G
'
.~.· .. made from only one source or from a source in excess of
the fixed quota. Thus, the impugned notification confining
the fixation of relative seniority between the direct recruits
and promotees to the recruits of a calendar year purports
to frustrate and override the very tenet of quota rules and H
460 SUPREME COURT REPORTS (2009] 10 S.C.R.

A the well settled principles of fixation of relative seniority
between the direct recruits and promotees when the
recruitment to the service is made against the quota
vacancies reserved for the direct recruitment and
promotion.
B
On a bare reading of the provision of rules 28 of the
Tripura Civil Service Rules, 1967, and the impugned
instruction, it becomes apparent that the impugned order
1
dated 28.5.1981 is inconsistent with and violative of the
provision of rule 28 of the TCS Rules. It is well settled that
c provisions of statutory rules cannot be overridden or
violated by administrative instruction and that
administrative instruction which is inconsistent with and
violative of the Rules, is illegal and void. For the reason
stated above, we have no hesitation to hold that the
D impugned order dated 28.5.1991 being ex-facie
inconsistent with and/or violative of the provisions of Rules
18 of the Tripura Civil Service Rules, 1967 is illegal and
void. The petition is, therefore, allowed and impugned
notification dated 28.5.1981 is quashed. We make no
E order as to costs".

(emphasis supplied)

10. The said decision rendered by the Division Bench in
Civil Rule No. 204/1981 Clated.29.7.1992 remained
F unchallenged and accordingly attained finality. The Government
of Tripura prepared and published Office Memorandum dated
25.7.1997 which was a draft seniority list purportedly in terms
of the decision in Civil Rule No. 204/1981,by placing the
promotees, irrespective of their individual date of recruitment,
G to their respective slots in the gradation list on the basis of
Quota Rota Rule. Subsequent thereto, however, a Government
order dated 25.5.2000 was issued clarifying the general
principles for determination of seniority between the direct
recruits and the promotees with reference to the decision in
H Civil Rule No.204/1981.
.... RADHA MOHAN MALAKAR & ORS. v. USHA 461
RANJAN BHATIACHARJEE [MARKANDEY KATJU, J.]

"' 11. Acting upon the said order dated 25.5.2000, the State A
Government published afresh, vide order dated 9.6.2000 a
seniority list of the officers of the Tripura Civil Service Grade-I I
whereby the direct recruits of1990 were placed en-bloc over
the promotees of 1991. The Government order dated 25.5.2000
aforementioned as well as the seniority list dated 9.6.2000, B
aforementioned came to be challenged by some promotees of
1991, in two writ petitions, namely, Writ Petition Nos. 29.3/2000
and 294/2000.

12. While dismissing the two writ petitions on 23.4.2004,
the learned Single Judge concluded that since the direct recruits
c
had been recruited to Grade-II of the TCS prior to the promotion
of the writ petitioners thereto and that the direct recruitment had
remained confined within the quota meant for being filled up
by direct recruitment, the writ petitioners, on being subsequently
promoted to the Grade-II of the TCS, cannot be granted D
seniority over the direct recruits, for the promotees were not
even born in the cadre of the TCS on the dates when the private
respondents were directly recruited to Grade-II of the TCS. It
was the correctness of this conclusion, which was challenged
in writ appeal before the Division Bench of the High Court. E

13. The Division Bench by the impugned judgment has set
aside the judgment of the learned Single Judge and allowed
the appeal and set aside the judgment of learned Single Judge
dated 23.4.2004 as well as clf1rificatory order dated 25.5.2000 F
and the impugned gradation list dated 9.6.2000. The Division
Bench directed the authority to prepare a fresh gradation list
in respect of the Grade II of the Tripura Civil Services in terms
of the principles embodied in the unamended Rule 28 (iii) of
the Tripura Civil Services 1967 and in the light of its G
~
) observations. The order was restricted to the appellants and
private respondents before the Devision Bench.

14. The Division Bench held that the impugned clarificatroy
order da.ted 25.5.2000 and the impugned seniority list published
by order dated 9.6.2000 were contrary to the provisions of Rule H
462 SUPREME COURT REPORTS [2009] 10 S.C.R.

A 28 (iii) of the Rules. The Division Bench also held that the
impugned order dated 25.5.20.00 sought to achieve the same
object which the notification dated 25.5.1981 sought to realize,
and since the said notification dated 25.5.1981 has already
been quashed, the question of bringing in another notification
B having the same effect cannot arise and cannot be legally
permitted.

15. In the year 1989, 25 promotees were recruited in TCS.
32 direct recruits by way of competitive examination were
C recruited in TCS in the year 1990 against the substantive
vacancies in the cadre of 1987/1988 for which the
advertisement was issued in year 1988. The appellants herein
are some of the direct recruits belonging to 1990 batch. 52
promotees were again recruited in TCS in year 1991. Private
respondents no.1 to 12 are all promotees who belong to the
D 1991 batch. However, only these 12 respondents herein filed
the Writ Appeal No. 166/2004 whose judgment is impugned
herein. By the impugned judgment herein the seniority between
a handful of parties in this petition has been disturbed by the
High Court.
E
16. It is contended by the appellants that the High Court
ought to have considered the seniority between the 1989
promotees, 1991 promotees on the one hand and 1990 direct
recruits on the other hand. Many of the promotees belonging
F to the 1989 and 1991 batch have retired from service. However,
it is alleged by the appellants that in view of the impugned
judgment now the seniority is wrongly sought to be fixed qua
the 1990 (direct recruits) and 1991 (promotees) confined to the
parties in the present petition, which is erroneous.

G 17. The Association of Civil Service Officers in TCS
challenged the aforesaid notification dated 25.5.1981 in Civil t •
Rule No. 204 of 1981 before the Gauhati High Court Agartala
Bench. The Division Bench of Gauhati High Court Agartala
Bench vide final judgment and order dated 29.7.1992 quashed
H the notification dated 25.5.1981
RADHA MOHAN MALAKAR & ORS. v. USHA 463
RANJAN BHATIACHARJEE [MARKANDEY KATJU, J.]
:» 18. It was held by the High Court in the impugned judgment A
that the administrative order dated 25.5.2000 of rotation and
.... fixation of relative seniority of direct recruits and promotees has
been confined to the recruits of a calendar year, even if in a
calendar year recruitment is made from only one source or from
a source in excess of the fixed quota. Hence it was held that B
the administrative order dated..._25.5.2000 purports to fn.istrate
and override the very tenet of quota rules when the recruitment
t to the service is made against excess of quota of vacancies
reserved for direct recruitment and promotion.

19. The provisional draft seniority list was published by the c
Government of Tripura vide memorandum dated 25.7.1997
comprising of the seniority list for batches of 1989 (promotees),
1990 (direct recruits) and 1991 (promotees). True copy of the
draft seniority list published by Government of Tripura dated
25.7.1997 is produced as Annexure P-3 to the appeal. D

20. The appellants filed a Writ Petition No.110 of 2000
before the High Court, Gauhati challenging the aforesaid
seniority list dated 25.7.1997. It was subsequently withdrawn
in view of the administrative order dated 25.5.2000 and the E
seniority list dated 9.6.2000.

.. 21. The Government of Tripura issued the administrative

- order dated 25.5.2000 governing the general principles of
relative seniority between direct recruits and promotees in TCS.
It was specifically clarified therein that the persons recruited in F
excess of the quota from any source shall not get rotational
seniority in the same calendar year but shall be reverted to the
year where they can be accommodated in the respective quota
of that year, which was not clarified in the earlier notification
dated 25.5.1981 . G

-
........... )

22. The administrative order dated 25.5.2000 issued by
the Government of Tripura reads as follows :-

H
464 SUPREME COURT REPORTS [2009] 10 S.C.R.

A "No. F.23 (9)-GA (P&T)/2000
..
Government of Tripura ...
..,._
Central Administration (P& T) Department
25th May, 2000

B ORDER

Subje~t :- General Principles for determination seniority
1'
The State Govt. observed that certain difficulties had
ariser,i in the implementation of the general principles of
c determining seniority of various categories of persons
employed under the State Govt. as incorporate in Tripura
Administration's order no. F.1 (16)-GA /59 dated
12.7.1960.

D 2. To overcome the difficulties a clarification was
issued vide order No. F.1 (11 )-GA /59 dated
28.5.1981. According to that clarification rotation
and fixation of relative seniority of girect recruits and
promotees was to be done taking into ~ccount only
E such officers as were appointed from either source
to the same grade and the same cadre within any
single calendar year.

-
>
3. The Hon'ble Gauhati High Court in CR 204of1981
quashed the aforesaid order on the ground that it
F confined rotation and fixation of relative seniority,
even if in a calendar year recruitment from one
source is made in excess of the quota. Accordingly,
a formal order was issued vide No. F. 23 (47)-GA
/81 dated 8. 7.1993 for not giving effect to the former
G order.
I ~'

4. However, the difficulties as aforesaid, persist and
•
to over come the same it is clarified again, in
modified form in the light of the decision of the
H
Hon'ble High Court, that the rotation and fixation of
-
RADHA MOHAN MALAKAR & ORS. v. USHA 465
RANJAN BHATTACHARJEE [MARKANDEY KATJU, J.]
>I • relative seniority of direct recruits and the A
promotees shall be done taking into account only
such officers as are appointed from either source
to the same grade and the same cadre within any
single calendar year if the recruitment are made
within the respective quota. Persons recruited in B
excess of the quota from any source shall not get
rotational seniority in the s~me calendar year but
shall be reverted to the year where they can be
accommodated in the respective quota of that year.

5. Any final seniority list already notified by the Govt.
c
shall not be liable to revision merely because of the
issue of the present order.
By order of the Governor
(S.K. Roy) D
Secreta;j to the Govt. of Tripura
23. The seniority list of existing officers in Grade II batches
of 1989 (promotees), 1990 (direct recruits), and 1991
(promotees) in the Tripura Civil Services was published by the
'
Government vide office memorandum dated 9.6.2000. E
\

~ 24: It was submitted by the respondents-promotees before
~ us that in the seniority list as per Notification dated 9.6.2000,
....,.
,
all the 1989 batch promotees (25 in number) were placed en-
bloc senior over 1990 direct recruits. The 1990 direct recruits F
were placed en-bloc senior over 1991 promotees batch. It was
submitted that this was in violation of the judgment of the
Division Bench of the High Court dated 29. 7.1992. True copies
of the office memorandum and final seniority list dated 9.6.2000
is produced as Annexure P-5 to the appeal. G
..... )
25. The learned Single Judge before whom the writ petition
was filed held that the principle of determination of the seniority
contained in the memorandum dated 25.5.2000 does not

-
contravene Rule 28 (iii) of the Rules. However, the Division
Bench of the High Court has reversed the said judgment and H
466 SUPREME COURT REPORTS [2009] 10 S.C.R.

A hence this appeal.

26. In our opinion this appeal deserves to be allowed. ...:

27. In this connection reference may be made to the three
Judge Bench of this Court in N. K. Chauhan and Ors. vs. State
B of Gujarat and ors. 1977 (1) sec 308. In paragraphs 32 and
33 of the aforementioned decision this Court has observed:-

"32. We therefore reach the following conclusions: r

1. The promotions of mamlatdars made by Government
c between 1960 and· 1962 are saved by the ·as far as
practicable' proviso and therefore valid. Here it falls to be
noticed that in 1966 regular rules have been framed for
promotees and direct recruits flowing into the pool of
Deputy Collectors on the same quota basis but with a
D basic difference. The saving provision as far as
practicable' has been deleted in the 1966 rules. The
consequence bears upon seniority even if the year is
treated as the unit for quota adjustment.

E 2. If any promotions have been made in excess of the
quota set apart for the mamlatdars after rules in 1966 were
made, the direct recruits have a legitimate right to claim

-
that the appointees in excess of the allocable ratio from
among mamlatdars will have to be pushed down to later
F years when their promotions can be regularised by being
absorbed in their lawful quota for those years. To simplify,
by illustration, if 10 deputy collectors' substantive vacancies
exist in 1967 but 8 promotees were appointed and two
direct recruits alone were secured, there is a clear
transgression of the 50 : 50 rule. The redundancy of 3
G
hands from among promotees cannot claim to be regularly ( ....
appointed on a permanent basis. For the time being they
occupy the posts and the only official grade that can be
extended to them is to absorb them in the subsequent
vacancies allocable to promotees. This will have to be
H
RADHA MOHAN MALAKAR & ORS. v. USHA 467
RAN,!AN BHATIACHARJr=E [MARKANDEY KATJU, J.]

"' worked out down the line wherever there has been A
excessive representation of promotees in the annual
~
ihtake. Shri Parekh, counsel for the appellants has fairly
conceded this position.

3. The quota rule does not, inevitably, invoke the B
application of the rota rule. The impact of this position is
that if sufficient number of direct recruits have not been
t forthcoming in the years since 1960 to fill in the ratio due
to them and those deficient vacancies have been filled up
by promotees, later direct recruits cannot claim 'deemed'
dates of appointment for seniority in service with effect
c
from the time, according to the rota or turn, the direct

-.. recruits' vacancy arose. Seniority will depend on the length
of cohtihuous officiating service and cannot be upset by
· later arrivals from the open market save to the extent to
which any excess promotees may have to be pushed D
down as indicated earlier.

33. These formulations based on the commonsense
understanding of the resolution of 1959 have to be tested
in the light of decided cases. After all, we live in a judicial E
system where earlier curial wisdom, unless competently
overruled, binds the Court. The decisions cited before us
start with the leading case in Mervyn Coutindo vs.
,.,. Collector of Customs AIR 1967 SC 52, and closes with
the last pronouncement in V.B. Badami vs. State of F
Mysore 1976(2) SCC 901. This timespan has seen dicta
go zigzag but we see no difficulty in tracing a common
thread of reasoning. However, there are divergencies in
the ratiocination between Mervyn Coutindo and Govind
Dattatray Kelkar vs. Chief Controller of Imports and
G

-.-4
"
Exports AIR 1967 SC 839 on the one hand and S.G .
Jaisinghani vs. Union of India AIR 1967 SC 1427, Bishan
Sarup Gupta vs. Union of India 1973(3) SCC 1, Union
of India vs. Bishan Sarup Gupta 1975(3) SCC 116 and
A.K. Subraman vs. Union of India 1975(1) SCC 319 on
.:.. H
468 SUPREME COURT REPORTS (2009] 10 S.C.R.
'"I

A the other, especially on the rota system and the year being w

regarded as a unit, that this Court may one day have to
harmonize the discordance unless Government wakes up
to the need for properly drafting its service rules so as to
eliminate litigative waste of its servants' energies."
-
B
(emphasis supplied)

28. The aforesaid decision has considered the earlier
decisions of this Court including the Constitution Bench
decision in Mervyn Coutindo vs. Collector of Customs AIR
c 1967 SC 52, S.G. Jaisinghani vs. Union of India AIR 1967 SC
1427, V. B. Badami vs. State of Mysore, 1967 (2) SCC 901,

D
etc.

29. In our opinion the principle of the decision in N. K.
Chauhan's case (supra) can be illustrated by taking a •
-
hypothetical example. Suppose in a particular service 50% of
the vacancies are to be filled in by promotion and 50% by direct
recruitment, and suppose there is a rule that the inter se
seniority of direct recruits and promotees is to be fixed
according to the rotation of vacancies between direct recruits
E
and promotees in the manner that the first post will go to a
promotee, the second to a direct recruit, the third to a promotee,
the fourth to a direct recruit, and so on. Even here the ordinary
rule that seniority will depend on the length of the continuous
...,
officiating service has to be followed unless the quota of direct
F recruits or of the promotees has been exceeded. It is only if
the said quota is exceeded that the appointees have to be
pushed down in the seniority, otherwise seniority has to be
taken from the date of continuous officiating service. In the
present case it is admitted that the quota of direct recruits has
G not been exceeded. Hence, in our opinion, the seniority of direct
recruits (appellant) has to be taken from the date of their initial • ,_..
appointment and they cannot be pushed down in seniority. The
promotees (respondents herein) were appointed to the Grade
II of TCS after the appointments of the direct recruits
H (appellants). Hence the former have to be treated as junior to
RAbHA MOHAN MALAKAR & ORS. v. USHA RANJAN 469
BHATTACHARJEE [MARKANDEY KATJU, J.]
the latter. The earlier Division Bench decision of the High Court A
• dated 29. 7.1992 has to be understood in the light of the
.. decision of this Court in N.K. Chauhan's case (supra) .

30. The result of the impugned judgment of the Division
Bench will be that the 1990 direct recruits who were recruited B
against vacancies created before 1988 will be pushed below
the 1991 promotees in seniority. In our opinion such a view is
clearly erroneous in law.

31. In our opinion the Government's order dated 25.5.2000
and office memorandum dated 9.6.2000 are valid and are in c
accordance with the Tripura Civil Service Rules, and the view
of the Division Bench is not correct.
...
' 32. In B.S. Mathur and another vs. Union of India and
...... Others, 2008 (10) SCC 271 it was observed that ordinarily inter D
se st!niority is to be determined on the basis of continuous
length of service. The Court in the aforementioned decision has
referred to the earlier decision in O.P. Sing/a and Another vs.
i
~ Union of India and Others, 1984 (4) SCC 450 and Rudra

... Kumar Sain and Others. Vs Union of India and Others, 2008
(8) sec 25 .
E

33. Since the quota of direct recruits has not been
exceeded hence in our opinion the seniority has to be calculated
'
·- from the date of the initial appointment and the said seniority
cannot be pushGd down. F

34. For the reasons given above this appeal. is allowed,
the impugned judgment of the Division Bench is set aside and
judgment of the learned Single Judge is upheld. No orders as
\
to costs. G '
~""
- ) K.K.T. Appeal allowed.