# • M. SUBBA REDDY ANO ANR v. A.P. STATE ROAD TRANSPORT CORPORATION ANO ORS

- **Citation:** [2004] Supp. 1 S.C.R. 7
- **Court:** Supreme Court of India
- **Decided:** 2004-04-12
- **Bench:** V.N. Khare, S.8. Sinha Ands. H. Kapadia
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-subba-reddy-ano-anr-v-a-p-state-road-transport-corporation-ano-ors-20043
- **Pages:** 31

## Headnote

B
Service law:
A. P. State Road Transport Corporation Employees (Service) Regulations,
1964-Regulation 3-A. P. State Road Transport Corporation Employees C
(Recruitment) Regulations, 1964-Regulations 30, 34 and, item 3 of Appendix
A (Section 8) -Recruitment regulations prescribing quota of I: 1 between
>
direct recruits and promotees for recruitment to the post of Assistant Traffic
Manager-Ban on direct recruitment for few years-Corporation temporarily
promoting certain persons to post reserved for direct recruits-Vacancy arising D
in promotees' quota and promotees regularised therein-Thereafter, direct
recruits borne in services-Fixation of seniority-Held: On reading service
regulations with recruitment regulations, fixation of seniority depends upon
the number of vacancy falling in a particular category and not on the date of
promotion or date of selection-Rule of rota is inbuilt in quota prescribed for
direct recruits and promotees and in accordance with the quota seniority is E
fixed-Thus, promotees could not get seniority over direct recruits-Also
promotees were promoted subject to being reverted to substantive post on
approved candidates becoming available and when such revertees are
repromoted as per regulation 34 they can be deemed to be appointed to such
post, as such temporary promotions cannot be first appointment to that p
category-Furthermore, mere inaction or imposition of ban does not mean
that quota was broken down-Road Transport Corporation Act, 19 50-Section
45.
First respondent-State Road Transport Corporation is a statutory
Corporation constituted under the Road Transport Corporation Act, 1950. G
Appellant No. 1 was appointed as a Traffic Apprentice on 10.8.1971 in
the Corporation. In 1983 he was promoted temporarily as Assistant Traffic
Manager against vacancy reserved for direct recruitment subject to
appointment. When the vacancy arose in the promotee quota, his services
were regularised with probation rights with retrospective effect from
7
H
8
SUPREME COURT REPORTS [2004) SUPP. I S.C.R.
A 27.12.1986 vide order dated 9.9.1988. He was confirmed as ATM on
1.4.1987. On 9.11.1990, respondent-direct recruits were borne into services
of the Corporation. In the integrated seniority list of 10.11.1994 appellants
were placed below direct recruits. Appellants filed writ p~tition challenging
the same. It is the appellant's case that there had been ban on direct
•
B
recruitment from 1977 upto 1988 in the Corporation and the promotions
were made from lower feeder posts in excess of ratio of 1:1 under A.P.
State Road Transport Corporation Employees (Recruitment) Regulations,
1966 on temporary basis and in course of time they wer~ regularized; and
that when their promotions were regularized, the direct recruits were not
even borne on the cadre of ATMs/AMEs and as such they could not be
c placed below the direct recruits. High Court applying quota-rota rule held
that direct recruits were rightly treated as senior to the promotees. Division
Bench upheld the order. Hence the present appeals.
Appellant-promotees contended that t.he appellants had a right to
be promoted within their quota during the years 1981 to 1987, when
D vacancies for promotees quota became available as during this, period no
direct recruits were available, that on the date when appellant No. 1 was
regularized, there were no direct recruits available and as such
Corporation cannot place direct recruits above promotees; that the direct
recruits cannot claim appointments from the date of the vacancy in. their
E quota before their selection; that Item-3 of Appendix-A (Section-B)
prescribes the method of recruitment and the manner in which vacancy
is allocated, it does not involve rota for the purposes of seniority but only
quota, therefore, rota cannot be implied; that seniority is dealt with only
by regulation 3 of S.ervice Regulations, and not by regulation 34 of
Recruitment Regulations, which refers to only allocation of vacancy; that
~ .
F the non-a

## Text

_Characters 0–39,896 of 77,218. This is a partial read: ask again with offset=39896 for what follows._

•
M. SUBBA REDDY ANO ANR.
A
V.
A.P. STATE ROAD TRANSPORT CORPORATION ANO ORS.
APRIL 12, 2004
[V.N. KHARE, CJ., S.8. SINHA ANDS. H. KAPADIA, JJ.]
B
Service law:
A. P. State Road Transport Corporation Employees (Service) Regulations,
1964-Regulation 3-A. P. State Road Transport Corporation Employees C
(Recruitment) Regulations, 1964-Regulations 30, 34 and, item 3 of Appendix
A (Section 8) -Recruitment regulations prescribing quota of I: 1 between
>
direct recruits and promotees for recruitment to the post of Assistant Traffic
Manager-Ban on direct recruitment for few years-Corporation temporarily
promoting certain persons to post reserved for direct recruits-Vacancy arising D
in promotees' quota and promotees regularised therein-Thereafter, direct
recruits borne in services-Fixation of seniority-Held: On reading service
regulations with recruitment regulations, fixation of seniority depends upon
the number of vacancy falling in a particular category and not on the date of
promotion or date of selection-Rule of rota is inbuilt in quota prescribed for
direct recruits and promotees and in accordance with the quota seniority is E
fixed-Thus, promotees could not get seniority over direct recruits-Also
promotees were promoted subject to being reverted to substantive post on
approved candidates becoming available and when such revertees are
repromoted as per regulation 34 they can be deemed to be appointed to such
post, as such temporary promotions cannot be first appointment to that p
category-Furthermore, mere inaction or imposition of ban does not mean
that quota was broken down-Road Transport Corporation Act, 19 50-Section
45.
First respondent-State Road Transport Corporation is a statutory
Corporation constituted under the Road Transport Corporation Act, 1950. G
Appellant No. 1 was appointed as a Traffic Apprentice on 10.8.1971 in
the Corporation. In 1983 he was promoted temporarily as Assistant Traffic
Manager against vacancy reserved for direct recruitment subject to
appointment. When the vacancy arose in the promotee quota, his services
were regularised with probation rights with retrospective effect from
7
H
8
SUPREME COURT REPORTS [2004) SUPP. I S.C.R.
A 27.12.1986 vide order dated 9.9.1988. He was confirmed as ATM on
1.4.1987. On 9.11.1990, respondent-direct recruits were borne into services
of the Corporation. In the integrated seniority list of 10.11.1994 appellants
were placed below direct recruits. Appellants filed writ p~tition challenging
the same. It is the appellant's case that there had been ban on direct
•
B
recruitment from 1977 upto 1988 in the Corporation and the promotions
were made from lower feeder posts in excess of ratio of 1:1 under A.P.
State Road Transport Corporation Employees (Recruitment) Regulations,
1966 on temporary basis and in course of time they wer~ regularized; and
that when their promotions were regularized, the direct recruits were not
even borne on the cadre of ATMs/AMEs and as such they could not be
c placed below the direct recruits. High Court applying quota-rota rule held
that direct recruits were rightly treated as senior to the promotees. Division
Bench upheld the order. Hence the present appeals.
Appellant-promotees contended that t.he appellants had a right to
be promoted within their quota during the years 1981 to 1987, when
D vacancies for promotees quota became available as during this, period no
direct recruits were available, that on the date when appellant No. 1 was
regularized, there were no direct recruits available and as such
Corporation cannot place direct recruits above promotees; that the direct
recruits cannot claim appointments from the date of the vacancy in. their
E quota before their selection; that Item-3 of Appendix-A (Section-B)
prescribes the method of recruitment and the manner in which vacancy
is allocated, it does not involve rota for the purposes of seniority but only
quota, therefore, rota cannot be implied; that seniority is dealt with only
by regulation 3 of S.ervice Regulations, and not by regulation 34 of
Recruitment Regulations, which refers to only allocation of vacancy; that
~ .
F the non-availability of candidates in a particular category, may be on
account of ban on recruitment or on any other ground, therefore, when
promotees were regularized in the promotion quota when direct recruits
were not available, the quota in item-3(1) of Appendix-A would not apply;
and that in any event, allocatiOn of vacancy under the said clause was not
G rigid and it cannot be a basis for denying seniority to the promotees from
the date of regularization.
Dismissing the appeals, the Court
HELD: Per Kapadia J. (For himself and Khare CJ) :
•
H
1.1. Reading item 3 of Appendix-A (Section-B) with regulation 34
M.S. REDDY v. A.P.S.R.T.C.
9
.......
of the Recruitment Regulation it is clear that filling up of the posts, A
reserved for direct recruits by departmental promotees has to be on
temporary basis under regulation 30 and as soon as eligible candidates
from direct recruits quota become available, they are to replace the
temporarily promotees. 120-D)
..
1.2. Regulation 3 of Service Regulations which states that seniority B
would be determined by the date of first appointment to such service, class,
category or grade, has to be read with regulations 30 and 34 of the
Recruitment Reg~lations. [20-E, F]
1.3. In the instant case, the appellant-promotees were promoted C
temporarily to the posts of ATMs/AMEs under regulation 30 as there were'
no direct recruits available subject to being reverted to substantive posts
on approved candidates becoming available. On being reverted they would
>
subsequently be considered for repromotion against the quota of vacancies
reserved for promotees under Regulation 34(6). It is only when such
revertees are repromoted as per regulation 34, they can be deemed to have D
been appointed to the post of A TM or AME within the meaning of
regulation 3 and not when they were first appointed tentatively to the post
of ATMs/AMEs being reserved for direct recruits. Therefore, for posts
reserved for direct recruits, the temporary promotions cannot be said to
be first appointments to that category. It follows that seniority had to be
fixed between the direct recruits and the promotees strictly in accordance .
with the quota provided for in Item-3 of Appendix-A (Section-B).
[20-F-H; 21-A)
1.4. Appellants were promoted on temporary basis under regulation
30 with the clear understanding that the period of officiation will not give · F
them any right over direct recruits in future. Regulation 30 (6) states that
if a temporarily promotee is subsequently promoted in accordance with .
the regulations, his probation will commence in the higher category" only
from the date of subsequent promotions. For the same reason, regulation
34 states that revertees shall be subsequently considered for repromotion
against the quota of vacancies reserved for being filled by promotion. G
Regulation 34 ensures induction of qualified direct recruits. It is enacted
to protect the quota prescribed for direct recruits. On reading regulation ·
3 of service regulations with regulations 30 and 34 of recruitment
regulations, it becomes clear that neither the date of promotion nor the
date of selection is the criteria for fixation of seniority. The fixation of . H
10
SUPREME COURT REPORTS [2004) SUPP. I S.C.R.
A seniority under the above regulations depends upon the number of
vacancies falling in a particular category against which promotees became
due for promotion. Therefore, the rule of rota is inbuilt in the quota
prescribed for direct recruits and for promotees in terms of item-3 of
Appendix-A (Section-B) to the recruitment regulations. In the instant c~se,
B the regulations prescribe a quota of 1:1, which leads to rota for
confirmation. Having fixed the quota between the two sources of
recruitment, there is no discretion with the Corporation to alter the quota
or to deviate from the quota. (22-F-H)
The Direct Recruit Class-I/ Engineering Officers' Association and Ors.
C v. State of Maharashtra and Ors., AIR (1990) SC 1607, distinguished.
Union of India v. S.D. Gupta, AIR (1996) SC 3325 and State of West
Bengal and Ors. v. Aghore Nath Dey and Ors., (1993) 3 SCC 371, relied on.
Devendra Prasad Sharma v. State of Mizoram and Ors., [1997) 4 SCC
D 422 and S.G. Jaisinghani v. Union of India and Ors., AIR (1967) SC 1427,
referred to.
1.5. Under regulation 30 read with regulation 34, temporary
promotees were liable to be reverted as and when approved direct recruits
became available. The promotees were liable to be replaced by direct
E recruits. Under regulation 34, the said revertees were to be considered for
repromotion only against the quota of vacancies reserved for promotees.
This is clear from the terms of the order dated 9.9.1988. The submission
that the appellants came to be regularized vide order dated 9.9.1988 with
retrospective effect against the post earmarked for promotion and as 'iUCh
F in the integrated seniority list they were not liable to be pushed down below
direct recruits cannot be accepted. Also in the absence of direct
recruitment, the appellants could not have got seniority over direct
recruits. Furthermore where there is inaction on the part of the
Government or employer or imposed ban on direct recruitment in filling
up the posts. meant for direct recruits, it cannot be held that the quota
G has broken down. [25-C, B; 26-C-D)
UP. Secretariat UD.A. Association and Ors. v. State of UP. and Ors.,
(1999) 1 SCC 278 and A.N Sehgal and Ors. v Raje Ram Sheoram and Ors.,
AIR (1991) SC 1406, referred to.
H
1.6. The impugned seniority list is dated 10.11.1994 whereas
(
I.;
M.S. REDDY v. A.P.S.R.T.C.
11
regulation 34 has been amended w.e.f. 15.9.1995. Therefore, reliance A
cannot be placed on the amended regulation 34 by the appellants.
(26-D, E)
1i
Per Sinha, J. (Dissenting) :
).
1.1. Regulation 18 provides for date of commencement of probation B
either by way of direct recruitment or by way of promotion. The date of
probation may in the event of his subsequent appointment (which would
include promotion) may commence from the date of subsequent
appointment or from such earlier date, as the case may be. Appellants were
temporarily promoted to the post of Traffic Managers initially in the year C
1983. By an office order dated 9.9.1988, their promotion was regulariz~d
with retrospective effect from 27.12.1986 having regard to the vacancies
which occurred in the posts earmarked for promotion. Their serv~ces were
regularized with effect from the date when the vacancies became available
and not from the date of their initial ad hoc promotion. Therefore, their
services after regularization would not be by way of a stopgap D
arrangement. (30-E-G; 32-D, E)
Santosh Kumar v. State of Andhra Pradesh [2003) 5 SCC 511, referred
to.
1.2. In such case, the court shall not consider the matter relating to E
allocation of vacancy in term of clause (1) of Appendix 'A' as a rigid
formula; in terms whereof even the promotees would be denied seniority
from the date of regularisation. Regulation 3 and 18 governing the field
clearly suggest that in such case the promotees should be held to be senior
to the direct recruits. In any event, in absence of any challenge to the office
order dated 9.1.1988, the court must give effect thereto in terms whereof F
the appellants were placed on probation with effect from 21.07.1986 which
must be considered to be the crucial date for determining the seniority.
The regulations must be read in a manner so that a meaningful effect
thereto can be given. (35-C-E)
Rudra Kumar Sain and Ors. v. Union of India and Ors., [2000) 8 SCC G'
25, referred to.
1.3. The direct recruits who were appointed in the years 1990 and
1991, in terms of clause 3 of Annexure 'A' would be considered to have
been appointed only after their successful completion of training. They H
12
SUPREME COURT REPORTS (2004] SUPP. I S.C.R.
A were borne in the cadre in the years 1990-1991 and, thus, prior thereto
they cannot claim seniority. 132-GJ
Suraj Prakash Gupta and Ors. v. State of J & Kand Ors., 12000) 7 SCC
561, referred to.
•
B
1.4. The total ban for direct recruitment was imposed from the year
1977 to 1988 and, thus, the purported quota and the rota rule contained
in clause 3 of Annexure 'A' could not have been given effect to. In such a
situation, the quota rule become inoperative. [30-G, HJ
Direct Recruitment Class II Engineering Officers' Association v. State
C of Maharashtra, [1990) 2 SCC 715 and Excise Commissioner, Karnataka and
Anr. v. V. Sreekanta, (1993) 3 Suppl. SCC 53, referred to.
1.5. Having regard to the policy decision of the Corporation of ban
on direct recruitment the question of considering the candidature of any
person for direct recruitment at the relevant time, does not arise. The said
D policy decision evidently had presumably been taken keeping in view the
financial health of the Corporation. It is well settled that only because
certain vacancies existed, the employer cannot be forced to employ persons
against their will. If the ban order was not questioned.and the same had
been followed over a period of more than 10 years, an inference has to be
E raised that the quota rule had broken down. (34-B, C]
2. When two interpretations are possible; the one which promotes
justice and equity should be preferred. Although hardship cannot not be
a ground for striking down a law but when two views are possible, it is
permissible in law that the court would interpret the statutory provision
F in such a manner so that possible hardship is avoided.
Mahadeo Oil Mills and Ors. v. Sub-Divisional Magistrate Araria and
Ors., AIR (1978) Patna 86 and Commissioner of Income Tax, Bangalore v.
J.H. Got/a, Yadagiri, (1985) 4 SCC 343, referred to. (36-G]
G
CIVIL APPELLATE JURISDICTION : Civil Appeal. No. 490.7 of
H
1999.
From the Judgment and Order dated 3.2.1999 of the Andhra Pradesh
High Court in W.A. No. 70 of 1999.
WITH
•
M.S. REDDY v. A.P.S.R.T.C. [KAPADIA, J.]
13
C.A. No. 4908 of 1999.
Rakesh Dwivedi, Abhishek Chaudhary, Ms. Vimla Sinha and
M. Mahesh Babu for i:he Appellants .
G.R.K. Prasad, Md. Wasay Khan and T.V. Ratnam for the Respondents.
The Judgments/Order of the Court were delivered by
KAPADIA, J. The civil appeals herein raise a common point of law
A
B
i.e. fitment of the promotees in the integrated seniority list. The posts of
Assistant Traffic Manager (for short "A TM") and Assistant Mechanical
Engineer (for short "AME") are Class-I Junior Scale Officers posts. It is the C
case of the appellants that for several years, due to ban on recruitment,
promotions were made from lower feeder posts even in excess of the ratio of
1: 1 under A.P. State Road Transport Corporation Employees (Recruitment)
Regulations, 1966 (hereinafter referred to as "the recruitment regulations").
It is the case of the appellants that whenever direct re~ruitment was not D
possible within a short period and when administrative exigencies warranted
the filling of posts, like the one in the instant case, promotions were made
either on ad hoc or on ~mporary basis and in course of time they were
regularized. M. Subba Reddy, appellant herein, was appointed as a Traffic
Apprentice on 10.8.1971 in the Corporation. He was promoted temporarily
on 31.1.1983 as A TM vide Office Order dated 10. l.1983 and regularized on E
27.12.1986 vide order dated 9.9.1988. He was confirmed on l.4.1987 as
A TM. It is the case of the appellants that while they were senior to direct
recruits, who entered the above posts in 1988, 1990 etc., in the impugned
~
integrated seniority list dated I 0.11.1994, they have been placed below the
direct recruits. The appellants contend that when their promotions were F
regularized, the direct recruits were not even born on the cadre of A TMs/
AMEs and, therefore, there was no reason for placing them below the direct
recruits. Per contra, it is the case of direct recruits that the integrated seniority
list is in consonance with the quota rule of l: l under the statutory rules
mentioned supra.
Before coming to the arguments advanced on both sides, we notice the
relevant provisions of recruitment regulations framed by the corporation under
;.
section 45 of the Road Transport Corporation Act, 1950. For the purposes of
deciding this matter, we quote herein below the relevant provisions of the
recruitment regulations :
G
H
14
SUPREME COURT REPORTS [2004) SUPP. I S.C.R.
t
A "3.Appointment and qualifications :
(1)
Appointment to the posts in the Corporation shall be made
(a) by direct recruitment; or
(b) by promotion; or
•
B
(c) by transfer or deputation of an official already in the service
of a Department of the Central or State Government or a
State Transport Undertaking.
(2) The method of recruitment to each post specified in column
c
2 of Annexure-A shall be as shown in the corresponding entry in
column (3) thereof and the qualifications prescribed for each such
post shall be as shown in the corresponding entry in column (4).
(3) Notwithstanding anything in Clause (2) the Corporation may
at any time, appoint suitable officers of the State or Central
Government or any State Transport Undertaking to any of the posts
D
· specified in Annexure-A on 'Foreign Service' tenns.
...
(4) Where suitable departmental candidates are not available for
>-l
promotion to any of the posts specified in Annexure-A where the
posts are to be filled by promotion only, such posts may be filled by
direct recruitment by selection provided that recruitment to all the
E
higher posts from the lower posts shall be made by way of promotion
and resort had to direct recruitment only when suitable and qualified
persons are not available for promotions.
17. Temporary appointment :
(I) Where it is necessary in administrative interests owing to an
•:'
F
emergency which has arisen, to fill immediately a vacancy in a post
borne on the cadre of a service and if it is likely that there would be
undue delay in making any appointment in accordance with these
regulations, the appointing authority may appoint a person temporarily
otherwise than in accordance with these regulations, until a person is
G
appointed in accordance with these regulation, provided the post is
not one which is reserved to be filled by promotion.
(2) No appointment under clause (1) shall ordinarily be made of a
person 1vho does not possess the qualifications, if any, prescribed for
.I.
the said post. Every person who does not possess such qualifications
H
and who has been or is appointed under this clause shall-.be-replaced
M.S. REDDY v. A.P.S.R.T.C. [KAPADIA, J.)
15
as soon as possible by an approved candidate.
A
(3) Where it is necessary to fill a short vacancy in a post borne on
the cadre of a service and the appointment of the person entitled to
such appointment under the regulations or orders in force would
involve excessive expenditure on travelling allowance or exceptional
administrative inconvenience, the appointing authority may appoint B
any other person who possesses the qualifications, if any, prescribed
for the said post.
(4) A person appointed under clause (1) shall, whether or not he
possess the qualification prescribed for appointment to the post to
which he is appointed, be replaced as soon as possible by an employee c
or an approved candidate as the case may be, who is qualified to hold
the post under the regulations or orders in force.
(5) A person appointed under clause (1) or claμse (3) shall not be
entitled by reason only of such appointment to any preferential claim
to future appointment to such post or category of posts.
D
(6) Notwithstanding anything in these regulations, if and when a
temporary post is created as an addition to the cadre of a service and
the holder thereof is required by the corporation to possess any special
qualifications, knowledge or experience, any person who possesses
such qualifications, knowledge or experience, and is considered to be E
the best suited to discharge the duties of such post may, irrespective
of other considerations, be appointed to that post by the appointing
authority but the person so appointed shall not by reason only of such
appointment be regarded as a probationer in such service, class,
category nor shall be acquired thereby any preferential right to future F
appointment to sue~ service, class, category or posts.
18. Date of Commencement of probation of persons appointed
temporarily :
If a person, having been appointed temporarily under clauses (1), (3) G
or (6) of regulation 17 to a post borne on the cadre of any service,
or having been appointed to any services otherwise than in accordance
with the regulations governing appointment thereto is subsequently
appointed to the service in accordance with these regulations, he shall
commence his probation from the date of such subsequent appointment
or ~om such earlier date (not being earlier than the date of his first H
16
A
SUPREME COURT REPORTS [2004) SUPP. I S.C.R.
appointment on a temporary basis) as the appointing authority may
detennine. He shall also be eHgible to draw increments in the time
scale of pay applicable to him from the date of commencement of his
probation but shall not be entitled to arrears of pay unless otherwise
ordered by the corporation.
B 30. Temporary Promotion :
c
D
E
F
G
H
(1) (i) Where it is necessary in the administrative interest to fill
emergently a vacancy in a post borne on the cadre of a higher category
in a service or class by promotion from lower category and if the
filling of such vacancy in accordance with these regulations is likely
to result in undue delay, the appointing authority may promote a
person temporarily otherwise than in ~ccordance with these regulations.
(ii) No person who does not possess the qualifications, if any,
prescribed for the said service, class, or category shall ordinarily be
promoted under sub-clause (i). Every person who has been or is
promoted under sub-clause (i) shall be replaced as soon a8 possible
by promoting a person possessing such qualifications.
(2) Where it is necessary to fill a short vacancy in a post borne on
the cadre of a higher category in a service or a class, by ·promotion
from lower category and the appointment of a person w.ho is eligible
for such promotion under these regulation, would involve excessive
expenditure on traveling allowance of exceptional administrative
inconvenience, the appointing authority may promote any other person
possessing the qualifications, if any, prescribed for the post.
(3) A person promoted under sub-clause (i) of clause (1), whether or
not he possesses the qualification prescribed for the service, class or
category to which he is promoted shall as soon as possible be replaced
by a member of the service who is eligible to hold the post under the
regulations or orders in force.
(4) A person promoted under clauses (I) or (2) of regulation 30 shall
not be regarded as a probationer in the higher category or be entitled
by reason only of such promotion to any preferential claim to future
promotion to such higher category.
(5) The appointing authority shall have the power to revert to a lower
category or post any person promoted under clause (1) or (2) of
..
...
M.S. REDDY v. A.P.S.R.T.C. [KAPADIA, J.]
17
regulation 30 at any time without assigning any reason and without A
notice.
(6) If any person referred to in clause (4) is subsequently promoted
to the higher category in accordance with these regulations, he shall
commence his probation in such category from the date of such
subsequent promotion or from such earlier date as the appointing B
authority may in its discretion determine. He shall also be eligible to
draw increments in the time scale of pay applicable to him from the
date of commencement of his probation but shall not be entitled to
arrears of pay unless otherwise ordered.
34. ff in any of the following categories a sufficient number of C
approved candidates who have successfully completed their training
is not available for filling posts reserved to be filled by direct
recruitment such posts may be filled temporarily by departmental
promotion until approved caodidates who have successfully completed
their training become available to replace the promotees and the D
reverted person shall subsequently be considered for repromotion
against the quota of vacancies reserved for being filled by promotion.
(a) Asstt. Mechanical Engineer and Asstt., Works Manager.
(b) Asst. Traffic Manager
(c) Chargeman
( d) Traffic Inspector Grade II and Head Depot Clerk.
( e) Artisans .
ltem-3 of Annexure 'A' (Section-B) Class-I Jr. Scale Service :
"3. Assistant Traffic Manager. -
In a unit of four:
(1) The first and third vacancy shall be filled in by appointing of an
officer under training, who h'as successfully completed his training
and the second and fourth by promotion of a Chief Inspector.
(2) If a suitable candidate is not available in a particular category for
filling up a vacancy reserved for that category, the vacancy may be
filled in by a suitable candidate from the other categories.
E
F
G
(3) If no suitable candidate is available in any of the categories
mentioned above, the post may be filled in by direct recruitment by H
18
A
B
SUPREME COURT REPORTS [2004) SUPP. I S.C.R.
selection.
Qualifications :
(I) For Promotion :
The Chief Inspector must have put in not less than 5 years of service
as such.
For Direct Recruitment: The Candidate -
(a) must hold a degree in Mechanical Engineering from a recognised
University or have passed sections 'A' & 'B' of the Associate
C
Membership Examination of the Institution of Engineers (India)
or hold a diploma or a certificate recognized by the Institution
of Engineers (India) as exempting him from Section 'A' & 'B'
of their Associate Membership Examination.
(b) must have had experience for not less then four years as Traffic
D
Executive in large size passenger road transport organization
exclusive of the period of training, if any, preference will be
given to a candidate who is a graduate member of the Indian
Institution of Road Transport or any other recognised Institution
of Transport; and
E
(c) must not be above 30 years of age as on 1st July of the year in
which the recruitment is made."
We also quote herein below regulation 3 of Employees Service Regulations,
1964 (hereinafter referred to as "the service regulations") :-
F "3. Seniority :
G
H
(a) The "Seniority" of a person in service, class, category or grade
shall unless he has been reduced to a lower rank as a punishment, be
determined by the date of his first appointment to such service, Class,
category or grade. If any portion of the service of such person does
not count towards probation his seniority shall be determined by the
date of commencement of his service which counts towards probation.
(b) The appointing authority may, at the time of passing an order
appointing two or more persons simultaneously to a seryice fix the
order of preference among them; and where such order has been
fixed seniority shall be determined in accordance with .it.
M.S. REDDYv. A.P.S.R.T.C. [KAPADIA. J.]
19
(c) The transfer of a person from one category or grade of a service A
to another category or grade carrying the same pay or scale of pay
shall not be treated as a first appointment to the latter for purposes
of seniority and the seniority of a person so transferred shall be
determined with ~eference to the date of his first appointment to the
...
category or grade from which he was transferred. Where any difficulty
or doubt arises in applying this regulation, seniority shall be determined B
by the appointing authority.
(d) Where a member of any service,. class, category or grade, is
reduced to· a lower service class, category or grade, he shall be placed
at the top of the latter unless the authority ordering such reduction c
directs that he shall take rank in such lower service, class, category
or grade next below any specified member thereof."
-~
A. bare reading of the above regulations indicate that under service
regulation 3, the seniority is reckonable from ~he date of appointment to a
service or a grade. On the other hand, regulation 3 of the recruitment D
regulations deals with the method and manner in which the appointments
shall be made to various posts. It states that appointments can be made by
direct recruitment, promotions and transfer. The method of recruitment to
each post is specified in column 2 of Appendix-A to the recruitment regulations
as shown in the corresponding column 3. Therefore, one has to read regulation
3 of the recruitment regulations with Appendix-A in order to ascertain the E
method of recruitment to each post. Item 3 quoted above relates to method
of recruitment to the post of Assistant Traffic Manager (A TM). Under item3(1 ), it is stipulated that in a unit of four vacancies, the first and third vacancies
shall be filled by direct recruits whereas the second and fourth vacancies
shall be filled by promotees. It further provides that if a suitable candidate F
is not available in a particular category for filling up a vacancy reserved for
that category, the vacancy may be filled in by a suitable candidate from the
other category. Regulation 17 of the recruitment regulations deal with
temporary appointments, the sole criteria being undue delay in making of
regular appointments. Regulation 18 specifies that if a person appointed to a
tempora!"Y post under regulation 17 is subsequently appointed to the service G
in accordance with the regulations, his probation shall commence only from
the date of such subsequent appointment in accordance with the regulations.
Regulation 17 deals with power to make temporary appointments whereas
~
regulation 30 deals with the power to make temporary promotions. Regulation
30( 1} stipulates that the appointing authority may promote a person H
20
SUPREME COURT REPORTS [2004] SUPP. I S.C.R.
A temporarily, otherwise than in accordance with the regulations, in cases where
administrative exigency requires the appointing authority to immediately fill
in a vacancy in the cadre of a higher category. Regulation 30(3) specifies
further that the temporary promotee covered by regulation 30( 1) shall as
soon ~s possible be replaced by a member of the service eligible to hold the
...
B
post under the regulations. Regulation 30(4) stipuiates that the temporary
promotee shall not be regarded as the probationer in the higher category,
neither shall he have any preferential claim to future promotion in the higher
category. Regulation 30(6) states that ifa temporary promotee is subsequently
promoted to the higher category in accordance with the regulations, his
probation shall commence in the higher category only from the date of
c subsequent promotion in the higher category and he shall not be entitled. to
any benefits for the period when he was a temporary promotee. Regulation
34 applies to posts reserved only to be filled by direct recruits. Reading item
3 of Appendix-A (Section-B) with regulation 34, it is clear that filling up of
the posts reserved for direct recruits by departmental promotees has to be on
4~
D
temporary· basis under regulation 30 and as soon as eligible candidates from
direct recruits quota become available, they are to replace the temporarily
promotees.
Regulation 3 of the Service Regulations inter a/ia states that seniority
shall be determined by the date of first appointment to such service, class,
E category or grade. In the present case, regulation 3 of the service regulations
has been pressed into service by the appellants, who have urged that their
seniority shall be determined on the basis of the date of appointment. However,
one has to read regulation 3 of the service regulations with regulations 30 and
34 of the recruitment regulations. In the present case, the appellants- promotees
were promoted to the posts of A TMs7AMEs temporarily under regulation 30
F as there were no direct recruits available. They were promoted subject to
being reverted to substantive posts on approved candidates becoming available.
Regulation 34( 6) states that the revertees shall subsequently be considered
for repromotion ag~inst the quota of vacancies reserved for promotees.
Therefore, in the present case, one has to read regulation 3 of the service
G regulations with reguiations 30 arid 34 of the recruitment reg"Ulations. It is
only when such revertees are repromoted as per regulation 34, they can be
deemed to have been appointed to the post of A TM or AME. Therefore,
when the appellants were tentatively appointed. to the post of A TMs/ AMEs
originally for want of direct recruits and to the posts reserved for direct
~-.
recruits, it cannot be said that they were first appointed to that category
H within the meaning of regulation 3 of the service regulations. Therefore, in
M.S. REDDY v. A.P.S.R.T.C. [KAPADIA, J.]
21
so far as posts reserved for direct recruits are concerned, the temporary A
promotions cannot be said to be first appointments to that category. It follows
that seniority had to be fixed between the direct recruits and the promotees
strictly in accordance with the quota provided for in Item3 of Appendix-A
(Section-B).
Mr. Rakesh Dwivedi, learned senior counsel appearing on behalf of the B
appellants submitted that the appellants had a right to be promoted within
their quota during the years 1981 to 1987, when vacancies for promotees
quota became available. During this period, no direct recruits were available.
Direct recruits became available in July I 988, November, I 990 and June,
1992. Appellant M. Subba Reddy was regularized from 27.12.1986 vide C
order dated 9.9.1998, when no direct recruits were available and, therefore,
it was improper for corporation to place direct recruits above the promotees.
It is the case of the appellants that the direct recruits cannot claim appointments
from the date of the vacancy in their quota before their selection. It has been
contended that ltem-3 of Appendix-A (Section-B) prescribes the method of
recruitment in the manner in which vacancy is allocated. According to the D
learned counsel it does not involve rota for the purposes of seniority. It
prescribes only quota, therefore, rota cannot be implied. It was urged that
seniority is dealt with only by regulation 3 of the service regulations, 1964
and not by regulation 34 of the recruitment regulations, 1966. Reliance was
placed in this connection on regulation 34 as amended on 15.9.1995. It was E
submitted that in view of the said amendments, Appendix-A refers to only
allocation of vacancy and not for de.tennination of seniority. It was to be
detennined only by regulation 3 of the service regulations. The n<;m-availability
of candidates in a particular category, it was urged, may be on account of ban
on recruitment or on any other ground. Therefore, in the present case, where
promotees were regularized in the promotion quota when direct recruits were F
not available, the quota in item-3(1) of Appendix-A will not apply. It was
submitted that in any event, allocation of vacancy under the said clause was
not rigid and it cannot be a basis for denying seniority to the promotees from
the date of regularization. Reliance was place on the judgment of this Court
in the case of The Direct Recruit Class-II Engineering Officers' Association G
and Ors. v. State of Maharashtra and Ors., reported in AIR (1990) SC 1607.
We do not find any merit in the above arguments. Appellants have not
challenged the validity of the above regulations. As stated above, it has been
contended before us on behalf of the appellants that item-3(1) of AppendixA (Section-B) prescribes method of recruitment and the manner in which H
22
SUPREME COURT REPORTS [2004] SUPP. I S.C.R.
A vacancy is to be allocated, which does not involve rotation for the purposes
of seniority; that item-3( I) of Appendix-A (Section-B) prescribes only quota
and rota cannot be implied. However, the appellants before the High Court
unequivocally submitted that under the above regulations, promotions and
direct recruitments were required to be made in the ratio of I: I and that the
B said regulations provided for a cycle in which vacancies were to be rotated.
[See: Affidavit of M. Subba Reddy dated 28.12.1994]. Jn the said affidavit,
it is further submitted that in the absence of direct recruits, the slots reserved
for direct recruits were liable to be adjusted with the promotees immediately
and subsequently arrived direct recruits should be given their positions in the
seniority list subsequently in a bunch. Jn our view, the averments of the
C appellants before the High Court, if accepted, would result in complete
violation of the quota and rota rule embodied in the above regulations, which
cannot be permitted. As stated above, appellants were promoted originally
subject to the conditions envisaged in regulation 34 and, therefore, they
cannot claim seniority by ignoring the said regulations and on the basis of
their officiating services. They were promoted temporarily under regulation
D 30 which provides for ad hoc promotions. Regulation 34 ensures induction
of qualified direct recruits. But for regulation 34, candidates from feeder
posts would be temporarily promoted to the slots reserved for direct recruits
and on their regularization, the quota prescribed for direct recruits will be
defeated. Regulation 34 has been enacted to protect quota prescribed for
E direct recruits. As stated above, regulation 3 of the service regulations has to
be read with regulations 30 and 34 of the said recruitment regulations. The
appellants were promoted on temporary basis under regulation 30 with the
clear understanding that the period of officiation will not give them any right
over direct recruits.in future. It is for this reason that regulation 30 (6) states
that if a temporarily promotee is subsequently promoted in accordance with
F the regulations, his probation will commence in t~e higher category only
from the date of subsequent promotions. For the same reason, regulation 34
states that revertees shall be subsequently con~idered f~r repromotion against
the quota of vacancies reserved for being filled by promotion. Therefore,
regulation 34 protects the quota prescribed for direct recruits. On reading
G regulation 3 .of the service regulations with regula:tions 30 ·and 34 of the
recruitment regulations,· it becomes clear that neither the date of promotion
nor the date of selection is the criteria for fixation of seniority. The fixation
of seniority under the above regulations depends upon the number of vacancies
falling in a particular category. Therefore, the rule of rota is inbuilt in the
quota prescribed for direct recruits and for promotees in terms of item-3 of
H Appendix-A (Section-B) to the recruitment regulations. In the present case,
..
.. "
>
f·
-
M.S. REDDY v. A.P.S.R.T.C. [KAPADIA, J.)
23
the above regulations prescribe a quota of I: I, which leads to rota for A
confirmation. The fixation of seniority under the above regulations depends
upon the number of vacancies against which promotees became due for
promotion. In the case of Devendra Prasad Sharma v. State of Mizoram and
Ors., reported in [1997] 4 SCC 422, rule 25(iii) stated that the relative seniority
of direct recruits and of promotees shall be determined according to rotation B
of vacancies between direct recruits and promotees based on the quotas of
vacancies reserved for direct recruitment and promotion. Rule 25(iii) is similar
to Item-3 (1) of Appendix-A (Section-B). It was held by this Court that in
cases where there is rotation of vacancies between direct recruits and promotees
based on quota of vacancies, the rotation has to be considered in accordance
with the vacancies as and when they accrue under the rules.