UNION OF INDIA AND ORS.versusKISHORILAL BABLANI

                        UNION OF INDIA AND ORS.                                A
                                   v.
                          KISHORILAL BABLANI

                            DECEMBER 3, 1998

                                                                               B
   [MRS. SUJATA V. MANOHAR AND G.B. PATTANAIK, JJ.]


        Service Law :

      Indian Administrative Service-Class I and Class II service- C
Appointment to-Respondent qualified in l.A.S.-On the basis of available
vacancies appointed in class II service in Customs Depar71111rnt-Subsequently
representation mad{! by appellant for appointment to Class I service-Ground
of error in computation of vacancies-Non-compliance with rule providing
50% for direct recruits and 50% for promotees-Rejection ofrepresentation--
Application before Tribunal-Direction by Tribunal to consider the D
appointment of the respondent after adjusting the vacancies in strict
compliance of 50:50 quota-Appeal by Union of India-Held delay defeats
equity-Delay of I 5 and 20 years cannot be overlooked when an applicant
before the Court seeks equity-The applicants for all these years had no
legal right to any particular post-After more than JO years, the process of E
selection and notification of vacancies cannot be and ought not to be
reopened in the interest of the proper functioning and morale of the concerned
service-It would jeopardise the existing positions of a very large number of
members of that service-However, it would not be fair now to take away the
benefit which the respondent has actually obtained under the orders of the
Tribunal-But after this lapse of time, such relief cannot be granted to F
anybody else.

        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1328 of
1995.

     From the Judgment and Order dated 6.9.94 of the Central Administrative    G
Tribunal at Bombay in I.A.No. 11 of 1992.

        Anoop G. Choudhary, Hemant Sharma for V.K. Verma for the Appellants.

        G.D. Gupta and S.R. Setia for the Respondent.
                                     311                                       H
    312                        SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.

A         Pankaj Kalra and Vijay Kumar for intervenor.

          The following Order of the Court was delivered :

           The respondent appeared in the I.A.S. and Allied Services examination
    in the year 1974. He passed that examination and was placed at S.No.221 in
B   Category Ill. Candidates upto S.No.198 were accommodated in Class I service
    on the basis of the available vacancies. Since the respondent was at S.No.
    221·, he was accommodated in Class II service in the Customs Department.

           With effect from 10.11.1976, he was working as Customs Appraiser
    (Class II) in the Bombay Customs House. In 1983, the respondent made a
C   representation to the effect that in 1974, when the Department of Customs and
    Excise had notified available vacancies to be filled in by the candidates who
    qualified at the I.A.S. and Allied Services examination, the number of vacancies
    was wrongly intimated. Initially, this Department had intimated 3 5 vacancies
    to be so filled in for Class I posts. This figure was finally revised to 40
    vacancies. According to the respondent, 97 vacancies should have been so
D   notified in Class I posts in 1974 and not 40. Had the vacancies been com~ctly
    notified, he would have been appointed to Class I post in this Department
    in 1974. The representation which was made in 1993 was rejected on23.9.1985.

          Thereafter the respondent filed a writ petition before the Bombay High
    Court, being Writ Petition No. 1933 of 1985 which was transferred to the
E   Bombay Bench of the Central Administrative Tribunal. The Tribunal, by its
    Judgment and order dt. 6.9 .94, has allowed the application of the respondent.
    The present appeal is filed from the said judgment and order of the Tribunal.

           The appellants have conceded that as per the Recruitment Rules
    pertaining to this Department, there is a quota of 50% for direct recruits and
F   50% for promotees. The vacancies which have to be considered for applying
    the quota ?f 50% for direct recruits, are not just permanent vacancies but also
    temporary vacancies of long term duration. However, by mistake, upto the
    year 1990, only permanent vacancies which were available to direct recruits
    on the basis of 50% quota were notified. The position has been rectified from
G   the year 1990. The appellants also accept that had temporary vacancies of
    long duration been taken into account in 1974, 97 vacancies should have been
    notified. The Tribunal has, in this connection, rightly referred to a memorandum
    issued by the Central Board of Revenue dated 20.4.1953 in which the procedure
    for confirmation, promotion, reversion, retrenchment etc, in grades which are
    filled partly by direct recruits and partly by promotions, has been laid down.
H   This memorandum clearly mentions that in filling up the permanent vacancies




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                        U.0.1. v.KISHORILAL BABLANI                         313
and long term vacancies and vacancies which though temporary in the first           A
instance, are likely to be long term or permanent vacancies, for example, posts
sanctioned for specified periods likely to be renewed, the proportion fixed for
direct recruits and promoted officers should be rigidly maintained. Temporary
vacancies like leave vacancies may, however, be filled by promotion of
departmental members irrespective of the quota fixed for them. The same             B
position is maintained in Office Memorandum dated 8.6.1967 issued by the
Ministry of Home Affairs which specifies, "All clear vacancies arising in a
post/grade/service due to death, retirement; resignation, promotion of
incumbents from one post to higher post/grade, including deputation for a
period exceeding 3 years, and vacancies arising from creation of temporary
posts which are likely to be made permanent or continued on a long term             C
basis should be filled according to the provisions of the recruitment rules and
brought on to the recruitment roster." The appellants, therefore, were required
to notify not just permanent vacancies but also temporary vacancies of a long
term duration and to determine the total number of vacancies available for
direct recruits for their 50% quota accordingly.
                                                                                    D
       The Tribunal has, therefore, given a direction to the appellants to
consider the appointment of the respondent after adjusting the vacancies in
strict compliance of 50:50 quota system between direct recruits and the
promotees for the posts of Assistant Collector of Customs/Central Excise
existing when the results of the UPSC examination of 1974 were announced.           E
If the vacancies <!re found to be large enough, he may be allotted the notional
position and seniority along with other entrants who were appointed on the
basis of 1974 examination. However, this relief will not entitle the respondent,
to benefits of pay and allowances of the post of Assistant Collector against
which he had worked till his promotion to that grade.
                                                                                    F
       The appellants submitted before us with some justification, that in a writ
petition which was filed in the year 1985, appointments which were made as
far back as in the year 1974, ought not to have been disturbed. If a similar
relief is to be granted to all those who were in the merit list of 1974 of 1.A.S
and Allied Services examination and who were placed in Class II posts               G
because of wrong notification of vacancies in the year 1974, there would be
a complete disruption in the postings. and positions of persons appointed as
far back as in the year 1974 who are now occupying various posts not merely
in this department but in other various Allied Services as well. The same
would be the position if the vacancies for any subsequent years from 1975
to 1990 are now recalculated and the initial posting given to a large number        H
    314                         SUPREME COURT REPORTS [1998] SUPP. 3 S.C.R.

A of candidates during rhese years are now disturbed. They are, undoubt,edly,
    right about this apprehension. Delay defeats equity is a well known principle .
    of jurisprudence. Delays of 15 and 20 years cannot be overlooked when an
    applicant before the Court seeks equity. It is quite clear that the applicants
    for all these years had no legal right to any particular post. After more than
B   I 0 years, the process of selection and notification of vacancies cannot be and
    ought not to be reopened in the interest of the proper functioning and morale
    of the concerned services. It would also jeopardise the existing positions of
    a very large number of members of that service. The respondent, howe:ver,
    submitted that he has, in fact, been given the relief by the Tribunal. As a
    result, various orders have been issued granting him Group 'A' appointment
C   and subsequent promotions-though these are made subject to the outcome
    of this appeal. The only question is, whether having upheld the merits of his
    contention. we should now take away the benefit which the respondent has
    actually obtained under the orders of the Tribunal.

          We do not think that it would be fair to the respondent to take away
D   the benefit which he has secured on the basis of the contentions which are
    accepted as justified. We, therefore, maintain the relief which has been granted
    to the respondent. But obviously after this lapse of time, such relief cannot
    be granted to anybody else.

          One intervention application is before us which was filed in the year
E   1996 by a person who was recruited in the year 1975. The appellants have
    also pointed out that after the decision of the Tribunal in the present case,
    they have received a number of representations from other persons who were
    appointed during the period 1974 upto 1990. Such belated applications cannot
    now be considered, we, therefore, dismiss the intervention application. We
F   make it clear that the present order will operate only in respect of the respondent
    for reasons which we have set out earlier. We also make it clear that in
    notifying vacancies available to direct recruits the appellants are bound to
    take into account permanent as well as temporary vacancies of long duration
    as per the office memoranda of20.4.1953 and 8.6.1967. However, this will rnot
    affect the right of the appellants to decide in accordance with law on the
G   number of vacancies which are required to be filled up or not filled up, while
    maintaining the ratio of 50:50 between promotees and direct recruits.

           In the premises, the civil appeal is dismissed.

    T.NA                                                           Appeal dismissed.      t
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