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PETITIONER:

STATE OF MADHYA PRADESH AND ORS.

Vs.

RESPONDENT:

A.K. RAJORIYA AND ANR.

DATE OF JUDGMENT28/04/1992

BENCH:

SAWANT, P.B.

BENCH:

SAWANT, P.B.

PANDIAN, S.R. (J)

CITATION:

1992 AIR 2074 1992 SCR (2) 854

1992 SCC Supl. (2) 413 JT 1992 (3) 327

1992 SCALE (1)1049

ACT:

M.P. State Industries (Gazetted) Service Recruitment

Rules, 1985: Rule 6(2)-Schedule II: Interpretation of.

Director of M.P. Industries-Deputy Directors-

Recruitment of-50% by Direct recruitment and 50% by

Promotion-Held Rule 6(2) read with Schedule II relates to

maintenance of proportion between direct recruits and

promotees in the total strength of cadre-It does not pertain

to filling up of vacancies whenever they occur.

HEADNOTE:

Rule 6(1) of the Madhya Pradesh State Industries

(Gazetted) Service Recruitment Rules, 1985 provides that

recruitment to the service shall be (a) by direct

recruitment (b) by promotion and (c) by transfer. Rule 6(2)

provides that the number of persons recruited by promotion

or transfer shall not at any time exceed the percentage

shown in Schedule I. Schedule II of the number of duty posts

specified in Schedule II mentions that the percentage of the

duty posts of Deputy Directors to be filled in by promotion

would be fifty and that to be filled by promotion would also

be fifty.

In the Directorate of Industries of Madhya Pradesh the

strength of cadre of Deputy Directors was 57 at the

relevant time. 28 posts were held by promotees and 21 by

direct recruits. To conform to the provisions of Rule 6(2)

the Government filled the eight vacant posts of Deputy

Directors only by direct recruitment. The Respondent-

Assistant Directors challenged the said appointments

contending that Rule 6(2) read with Schedule II requires

that whenever vacancies occur in the post of Deputy

Director, they should be filled in 50% by direct recruitment

and 50% by promotion from the Assistant Directors and since

all the eight vacancies were filled in only by direct

recruitment in violation of Rule 6(2) they were denied their

legal right to promotion to the post of Deputy Director. On

behalf of the State and directly recruited Deputy Directors

it was contended that Rule 6(2) read with Schedule II

requires that the strength of cadre of Deputy Directors

should at any point of time consist of not more than 50%

855

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promotees and the transferred employees and since at the

relevant time 28 incumbents were promotees and the other 21

incumbents were direct recruits the direct recruitment of

eight Deputy Directors was in conformity with Rule 6(2).

The Madhya Pradesh State Tribunal held that Rule 6(2)

requires that 50% of the vacancies on every occasion should

be filled by direct recruits and promotees respectively.

Therefore, four out of the eight posts of Deputy Directors

should go to respondent-Assistant Directors for being filled

in by promotion. Against the order of the Tribunal appeals

were filed in this Court.

Allowing the appeal, this Court,

HELD : 1. The impugned order of the Tribunal is

unsustainable in law. Therefore, it is set aside. [858-E,

861-B]

2. Although the heading of Rule 6 is `Methods of

Recruitment' and sub-clause (1) of the said rule states that

the recruitment to the service shall be (a) by direct

recruitment (b) by promotion and (c) by transfer, the

language of sub-clause (s) of the said rule is very clear.

It states that at no time the number of Deputy Directors

recruited by promotion or transfer, shall exceed the

percentage shown in Schedule II, of the number of Duty Posts

specified in Schedule 1. Schedule II mentions that the

percentage of the duty posts to be filled in by promotion

would be fifty. Thus, neither Rules 6(2) nor Schedule II

refers to the vacancies to be filled in. On the other hand,

they speak of the percentage of direct recruits and

promotees to be maintained in the posts at any point of

time. [859 F-H, 860-A]

There is no ambiguity in the language either of sub-

clause (2) or Rule 6 or of Schedule II referred to therein.

On a plain reading of both the said provisions, it is clear

that the Rule does not pertain to the filling in of

vacancies when they occur but to the maintenance of the

proportion between the direct recruits and promotees. The

Rule requires that the proportion between the two in the

cadre or duty posts should be so maintained that at no time

those recruited either by promotion or transfer exceed 50%

of the duty posts or cadre strength. [860 A-B]

Bishan Sarup Gupta v. Union of India and Ors., [1975]

SCR Suppl. 491; Direct Recruit Class II Engineering

Officers' Association v. State of

856

Maharashtra and Ors., [1990] 2 SCC 752, distinguished.

JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1875 of

1992.

From the Judgment and Order dated 4.5.1990 of the

Madhya Pradesh Administrative Tribunal, Jabalpur in

Transferred Application No. 1 of 1988.

WITH

Civil Appeal No. 1876 of 1992.

S.V. Deshpande, S.K. Agnihotri and S. Muralidhar for

the Appellants.

Sakesh Kumar and Surya Kant for the Respondents.

The Judgment of the Court was delivered by

SAWANT, J. These two SLPs are directed against the

judgment and order dated 4th May, 1990 of the Madhya Pradesh

State Administrative Tribunal. Notices to the respondents

in each of the SLPs were issued for final hearing. After

service of the notices and completion of the pleadings, the

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SLPs have come up for hearing before us today. Leave is

granted in both the SLPs.

2. The short question involved in these appeals is

whether Rule 6(2) of the Madhya Pradesh State Industries

(Gazetted) Service Recruitment Rules, 1985 (hereinafter

referred to as the "Rules") relates to the filling in of the

vacancies by recruitment from direct recruits and promotees

or to maintaining their proportion in the total strength of

the cadre.

3. The relevant facts which have given rise to the

aforesaid question in the present case are as follows:

The appellants in Appeal No 1875/1992 [arising out of

SLP (C) No.12998 of 1990] are the State Government, the

Commissioner of Industries and Madhya Pradesh Public Service

Commission while the respondents are the employees under the

Directorate of Industries and at present holding the post of

Assistant Directors. In the companion appeal [arising out

of SLP (C) No 1807 of 1991], the appellants are the direct

recruits to

857

the post of Deputy Directors and the respondents, besides

the State of Madhya Pradesh, the Commissioner of Industries

and Madhya Pradesh Public Service Commission, are the

Assistant Directors in service of the Directorate of

Industries who are also the respondents in the accompany-ing

appeal. Prior to the present Rules of recruitment, there

were in operation the Madhya Pradesh State Industries

(Gazetted) Service Recruitment Rules, 1965. These Rules

among other things, provided that recruitment to the post of

Deputy Director, (Industries) and to the post of the Joint

Director of Industries would be made 100% by promotion from

the Assistant Directors of Industries and the Deputy

Directors of Industries respectively. The present Rules,

i.e., 1985 Rules made only one change, namely, that they

provided that the number of employees transferred and

promoted to the post of Deputy director would not exceed 50%

of the cadre strength, the remaining posts of Deputy

Directors being filled in by direct recruitment. The

position with regard to the promotion to the post of Joint

Director of Industries from the posts of Deputy Directors

remained unchanged. In other words, the seniority list of

Deputy Directors whether promoted, transferred or directly

recruited would remain common for the purpose of further

promotion to the post of Joint Directors.

4. It is not disputed that initially there were 66

posts of Deputy Director of Industries in the Directorate of

Industries. Nine of the said posts were later transferred to

other departments and hence the strength of the cadre of

Deputy Director of Industries in the Directorate of

Industries was reduced to 57. It, however, appears that at

the relevant time, 8 of the Deputy Directors from out of 57,

were promoted to the post of Joint Director. Hence, only 49

posts of Deputy Director were occupied by the incumbents

when in August, 1987 the Government issued and advertisement

inviting applications from direct recruits for eight posts

of Deputy Director. Pursuant to the advertisement, eight

direct recruits were selected and appointed to the said

posts.

5. About a year later, some of the Assistant Directors

who are respondents in both the appeals, filed a writ

petition in the High Court of Madhya Pradesh challenging the

said appointments. The writ petition was subsequently

transferred to the State Administrative Tribunal. It was

contended on behalf of the petitioner-Assistant Directors

that Rule 6(2) of the Rules read with Schedule II to the

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Rules requires that whenever vacancies occur in the post of

Deputy Director, they should be filled in 50% by

858

promotions from the Assistant Directors and 50% by direct

recruitment. Inasmuch as in the present case all the eight

vacancies were filled in only by direct recruitment, the

said Rule 6(2) was breached and the Assistant Directors were

denied their legal right to the promotion to the post of

Deputy Director. As against the said contention, it was

contended on behalf of the State and some of the directly

recruited Deputy Directors who are appellants in Appeal No

1876/1992 [arising out of SLP no.1807 of 1991] that Rule

6(2) read with the Second Schedule requires that the

strength of the cadre of deputy Directors should at any

point of time consist of not more than 50% promotees and the

transferred employees. Since at the relevant date, out of 49

Deputy Directors, 28 were promotees and 21 were direct

recruits, the Government had rightly recruited all eight

recruits to conform to the provisions of the said rule. It

appears that when the matter was first heard by the Tribunal

by a Bench consisting of the Chairman and an administrative

member of the Tribunal, they differed on the interpretation

of the said Rule and hence it was referred to the Judicial

Member. The learned Judicial Member agreed with the

Administrative Member and took the view that the Rule

requires that 50% of the vacancies on very occasion should

be filled in by direct recruits and promotees respectively.

In that view, the Tribunal held that four of the said eight

posts of Deputy Directors have to go to the Assistant

Directors for being filled in by promotion. It is this order

that is under challenge in both the appeals.

6. We are of the view that the impugned order of the

Tribunal is unsustainable in law. The relevant provisions of

Rule 6 are as follows:

"6. Methods of recruitment -[1] Recruitment to the

service after the commencement of these rules shall

be by the following methods, nemely:-

(a) by direct recruitment by selection

(b) by promotion.

(c) by transfer of persons who hold in a

substantive capacity such posts in such posts in

such services as may be specified in this behalf.

[2] The number of persons recruited under clause

(b) or clause (c) of sub-rule (1) shall not at any

time exceed the percentage

859

shown in Schedule II of the number of duty posts

specified in Schedule I.

X X X X X X"

The relevant provisions of Schedule II referred to in

clause (2) of Rule 6 are as follows-

----------------------------------------------------------------------

Percentage of the number of duty posts to be filled

----------------------------------------------------------------------

Name of Name of Name of Total No By Direct By promo- Remarks

Depart- Service Posts of duty recruitment tion of

ment posts vide rule substantive

6 (a) member of

the service

vide rule

6(b)

----------------------------------------------------------------------

1 2 3 4 5 6 7

----------------------------------------------------------------------

Commerce Madhya Joint 6 Nil 100 %

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and Pradesh Director of

Industry State Industries

Deptt Indust-

ries Gaz-

etted

service

Deputy 66 50 % 50 %

Director

of indus-

tries/Gene-

ral Manager/

Development

Officer

----------------------------------------------------------------------

x x x x x x x x x x x x

----------------------------------------------------------------------

Although the heading of Rule 6 is `Methods of

Recruitment' and sub-clause (1) of the said Rule states that

the recruitment to the service shall be by the following

methods, viz., (a) by direct recruitment (b) by promotion

and (c) by transfer, the language of sub-clause (2) of the

said Rule is very clear. It states that at no time the

number of those recruited by promotion or transfer, shall

exceed the percentage shown in Schedule II, of the number of

"Duty Posts" specified in Schedule I. Schedule I specifies

66 posts. As has been pointed out earlier, on account of the

transfer of 9 of the said 66 posts, the duty posts which

remained in the cadre were 57. Schedule II mentions that the

percentage of the duty posts to the filled in by promotion

would be fifty. Thus, neither Rule 6(2) nor

860

Schedule II refers to he vacancies to be filled in. On the

other hand, they speak of the percentage of direct recruits

and promotees to be maintained in the posts at any point of

time. There is no ambiguity in the language either of sub-

clause (2) of Rule 6 or of Schedule II referred to therein.

On a plain reading of both the said provisions, it is clear

that the Rule does not pertain to the filling in of

vacancies when they occur but to the maintenance of the

proportion between the direct recruits and promotees. The

Rule requires that the proportion between the two in the

cadre or duty posts should be so maintained that at no time

those recruited either by promotion or transfer exceed 50%

of he duty posts or cadre strength.

7. Shri Sakesh Kumar appearing for the respondent-

employees in both the appeals referred us to two decisions of

this Court, namely, Bishan Sarup Gupta v. Union of India and

Ors., [1975] SCR Suppl. 491 and Direct Recruit Class II

Engineering Officers' Association v. State of Maharashtra

and Ors., [1990] 2 SCC 752 and contended that the

recruitment rule in the present case is similar to those

involved in the said two cases, and the interpretation

placed on the rule here, namely, that it referred to filling

in of the vacancies and not to the maintenance of the

proportion of direct recruits and promotees and the cadre

should be accepted in the present case as well. The

submission is misplaced. The language of the Rules in either

of the cases was not similar to that of Rule 6(2) in the

present case. In B.S. Gupta's case (Supra) what fell for

consideration was Rule 4 of the Income Tax Officers Class I,

Grade II Service Recruitment Rules of 1945. The Court held

that the said Rule clearly referred to recruitment of

candidates to vacancies in the service and the vacancies

were such as the Government wanted to fill in whatever may

be the actual number of vacancies. The Court also held that

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the said Rule entitled the promotees to 1/3rd of vacancies

in any particular year whether or not there was recruitments

to fill in the rest 2/3rd of the vacancies in that year.

There was also no contention raised there that the said Rule

related to the maintenance of the proportion between the

direct recruits and promotees in the total cadre of the

concerned officers. In Direct Recruit Class II Engineering

Officers' Association Case (Supra) again on the language of

Rule 1 of Bombay Service of Engineers (Class I and Class II)

Recruitment Rules, 1960, it was observed in para 20 of the

judgment that the ratio of 75 : 25 for appointment by

nomination and promotion was fixed for the purpose of

appointment and not for the strength in the service as was

suggested on behalf of the appellants in that case. It was

also pointed out that the proviso to the

861

said rule required that the said ratio in the appointment

had to be maintained as far as practicable. Since the

language of the Rule clearly referred to the ratio at the

time of appointment and not to the proportion between the

two to be maintained in the total number of posts as in our

case. The said decision is also not applicable to the facts

of the present case.

In the view we have taken, we set aside the impugned

decision dated 4th May, 1990 of the Tribunal. The appeals

are accordingly allowed. In the circumstances of the case,

there will be no order as to costs.

T.N.A. Appeals allowed

862