The Judgment of the Court was delivered by

Chandrashekhar, C.J:— These petitions under Article 226 of the Constitution, have been referred to a Division Bench.

2. In these petitions, the controversy is in cregard to the relative seniority between direct recruits and promotees in the cadre of Karnataka Administrative Service, Class-I, Junior Scale Officers (hereinafter referred to as ‘Junior Scale Officers’).

3. Before adverting to the facts of each case, contentions raised and the reliefs sought therein it is useful to set out the history of the Karnataka Administrative Service (hereinafter referred to as ‘the K.A.S’).

4. On re-organisation of States under the States Reorganisation Act, 1956, a number of Officers in the cadre of Assistant Commissioners and equivalent posts, were allotted to the new State of Mysore (now Karnataka) on 1-11-1956. These posts were later equated to those of junior Scale Officers, constituted under the Karnataka Administrative Service Cadre Rules (hereinafter referred to as ‘the Cadre Rules’) issued by the Governor under Article 309 of the Constitution under the notification dated 23-1-1958. The strength of the cadre of such junior Scale Officers which was initially fixed as 135 with effect from 1-11-1956, was regarded as the permanent strength of that cadre. Those posts were filled by persons allotted to new State as Assistant Commissioners and officers in equivalent posts. Such allottees in excess of 135, were gradually accommodated in substantive vacancies that arose subsequently in that cadre.

5. Till 2-12-1959 no rules of recruitment to the K.A.S had been in operation. Consequently, all vacancies arising till that date, were filled only by promotion. On 2-12-1959 the Karnataka Administrative Service Recruitment Rules, 1957 (hereinafter referred to as the 1957 Rules) made by the Governor under Article 309 of the Constitution, came into force. Those Rules, inter alia, provided for filling 66 ⅔ per cent of the vacancies in junior Scale Officers, by promotion by selection from Class II Officers of the K.A.S and 33 ⅓ per cent of the vacancies by direct recruitment by competitive examination to be held by the Public Service Commission (hereinafter referred to as the Commission). However, no direct recruitment was made under those Rules till 11-9-1959 when the Karnataka Recruitment of Gazetted Probationers Rules, 1959 (hereinafter referred to as ‘the 1959 Rules’) made under Article 309 of the Constitution, came into force. Out of 39 vacancies that occurred in that cadre between 2-12-1957 and 10-9-1959, 26 posts had to be filled by promotion. Out of 26 posts, 15 posts were assigned to allotters to the new state and 11 posts were actually filled by promotion from Class-II posts.

6. Under the 1959 Rules, the quota for direct recruitment to cadre of Junior Scale Officers was increased from 33 ⅓ per cent to 66 ⅔ per cent and the quota for promotion was reduced from 86 ⅔ per cent to 33 ⅓ per cent for a period of 5 years. The 1959 Rules were originally intended to be in operation for a period of 5 years. But, their operation was extended by one more year.

7. In September 1959 the Government initiated steps for the first time for direct reeruitment of Junior Scale Officers to fill up vacancies within the quota prescribed for direct recruitment. The Commission conducted a competitive examination and selected 17 persons for appointment as Assistant Commissioners on probation. Six more persons who had been selected for other Services, were also taken as Assistant Commissioner as a result of the judgment of the Supreme Court. Thus, in all 23 posts were filled by direct recruitment during the period 11-9-1959 to 26-10-1962. Those 23 persons were appointed on probation on 26-10-1962 and were required to undergo training for a period of two years. The Government sanctioned 20 temporary posts of Junior Scale Officers to accommodate the probationers for the period of their training. On completion of their period of probation, the Government, by its order dated 26-10-1964, declared thar those 23 probationers had satisfactorily completed their probation. The creation of 20 temporary posts for the duration of the training, was not renewed after 26-10-1964. The actual issue of the order confirming those 23 direct recruits was delayed till the finalisation of the inter-State Seniority List of allottees.

8. During the period 11-9-1959 to 31-12-1964, 77 vacancies arose in the cadre and out of them 26 posts were actually filled by promotion and 23 posts were filled by direct recruitment.

9. During the period 1-1-1965 to 31-12-1966, 8 vacancies arose in the cadre of Junior Scale Officers and out of them three poets were filled up by promotion but none by direct recruitment.

10. On 31-5-1966 the Governor made under Article 309 of the Constitution, the Karnataka Government Gazetted Probationers Posts (Appointment by Competitive Examination) Rules, 1966 (hereinafter referred to as the 1966 Rules). Sub-rule (3) of Rule 3 of those Rules provided, inter alia that notwithstanding anything contained in the Rules of Recruitment to the Karnataka Administrative Service, the number of vacancies as determined by the Government in that Service should be filled by direct recruitment after holding a competitive examination by the Commission.

11. During the years 1967 and 1968, 29 vacancies arose in the cadre of junior Scale Officers and out of them, 22 vacancies were filled up by promotion but none by direct recruitment.

12. During the year 1969, 16 vacancies arose in the cadre of Junior Scale Officers and out of them, 11 posts were filled by direct recruitment and 5 posts by promotion.

13. During the years 1970 and 1971, 17 vacancies occurred in that cadre and out of them 11 posts were filled up by promotion, but none by direct recruitment.

14. During the period 8-10-1971 to 15-7-1976, 60 vacancies occurred in the eadre of junior Scale Officers and out of them, 40 posts were filled by promotion and 11 posts by direct recruitment.

15. By the Karnataka Administrative Service (Recruitment) (Amendment) Rules, 1977 (hereinafter referred to as ‘the 1977 Rules’) issued on 11-8-1977, the 1957 Rules were amended so as to vary the proportion between direct recruitment and promotion to 50 per cent from each source.

16. In January 1977, 18 persons were directly recruited to the posts of Junior Scale Officers.

17. Persons directly recruited in the year 1976 and in the year 1977 have been declared to have successfully completed their probation. But, they have not yet been confirmed in the Junior Scale Posts.

18. Such is the brief history of the cadre of Junior Scale Officers.

19. We shall now briefly trace the previous litigation concerning the relative seniority between direct recruits and promotees in the cadre of Junior Scale Officers.

20. A Gradation List of Junior Scale Officers as on 1-1-1972 was prepared under the Notification of the Government dated 13-1-1972 and was published in the Karnataka Gazette Extraordinary dated 14-1-1972. That Gradation List was challenged by some of the promotees as Junior Scale Officers, V.B Badami and others in W.P No. 192 of 1972 and connected writ petitions. They complained that though they had been promoted as Junior Scale Officers in the year 1960, they were placed below 23 direct recruits appointed in the year 1962. By its order dated 15-12-1972 reported in (???) this Court quashed that Gradation List and directed the state Government to prepare a correct Gradation List following the four principles set out in the order of this Court.

21. Not being satisfied with the decision of this Court, those petitioners (V.B Badami & Others) went up in appeal to the Supreme Court which, by its judgment dated 17-9-1975 reported in1 dismissed the appeals holding that those 23 direct recruits were seniors to those appellants.

22. The directions given by this Court in V.B Badami's case, were as follows;

“(i) The quotas as between promotees and direct recruits, wherever required by the rules, should be fixed with reference to the permanent strength of the Junior Duty posts, viz. 135.

(ii) The allottees under the States Reorganisation Act occupying at the time of such allotment posts equivalent to those of Assistant Commissioners or Junior Duty Posts should first be accommodated in the said strength of 135, and if it is found not possible to accommodate all of them by way of confirmation against substantive posts or vacanciee available during the period from 1st Nov. 1956 to 1st Dec. 1957, the excess should be accommodated in the promotional vacancies available during the period from 2nd Dec. 1957 to 10th Sept. 1959.

(iii) The substantive vacancies arising during the period from 2nd Dec. 1957 to 10th Sept. 1959 within the permanent strength should be classified as promotional and direct recruitment vacancies, the former to the extent of two-thirds of such vacancies and the latter to the extent of the balance one third. In the promotional vacancies so determined, the allottees who could not be accommodated in the first period should be first accommodated and thereafter the persons promoted during the said period in the order in which they have been promoted. In the one-third direct recruitment vacancies, the direct recruits in their order of seniority should be accommodated to the extent possible and the promotees occupying those vacancies who got displaced thereby should be accommodated in the promotional vacancies in the next succeeding period.

(iv) The substantive vacancies arising within the permanent cadre strength during the period from 11th Sept. 1959 to 26th Oct. 1964, should be classified into promotional vacancies and direct recruitment vacancies, the former being determined at one-third and the latter at the balance two-thirds. In the promotional vacancies, the promotees displaced by the direct recruits in the immediately preceding period should first be accommodated and thereafter the promotees of this period in the order in which they had been promoted to the extent possible. Thereafter, in the direct recruitment vacancies, the remaining direct recruits should be accommodated and thereafter the previously displaced promotees either of the second period or of the third period, should be accommodated in the order of seniority, with the liability of being displaced, if need be.”

23. Pursuant to the decision of this court in Badami's case (which was affirmed by the Supreme Court), the Government by its Official Memorandum dated 5-7-1976, issued guidelines to determine the seniority between direct recruits and promotees. The Gradation List of Junior Scale Officer upto 30-6-1973 prepared in accordance with those guidelines, was published under the Government Notification dated 10-8-1976. In that notification, the basis of the Gradation List has been explained, inter alia, thus:

(i) During the period 2-12-1957 to 10-9-1959, the number of substantive vacancies that arose was 39 of which 26 were promotional posts and 13 were direct recruitment posts in accordance with the 1957 Rules. The first 15 of the promotional posts were given to allottees and the remaining 11 posts to promotees 13 direct recruitment posts were carried forward as there was no direct recruitment during this period;

(ii) During the period 11-9-1959 to 26-10-1964 (the date on which direct recruits of 1962 were due for promotion), the number of vacancies that arose was 76, of which 51 were available for the direct recruits and 25 for promotees in accordance with the 1959 Rules, 23 substantive vacancies were given to direct recruits of 1962. The remaining 28 direct recruitment vacancies of this period and 13 direct recruitment vacancies of the previous period, were carried forward: and

(iii) From 26-10-1964 onwards the vacancies were classified year by year and the total number of promotional and direct recruitment vacancies available upto 7-10-1971 were 60 and 35, respectively. All those 60 vacancies are filled up by promotion. Out of the 41 direct recruitment vacancies carried forward from the previous period plus 35 direct recruitment vacancies of this period (26-10-1964 to 7-10-1971), 11 vacancies were assigned to direct recruits of the 1969 batch and the remaining 65 direct recruitment vacancies were carried forward.”

24. By the Notification of the Government dated 2-2-1977, a continuation of the Gradation List of 10-8-1976 was published. In that notification, such continuation was explained thus;

“(1) During the period 7-6-1974 to 15-7-1976 (when direct recruits of 1974 batch were eligible for confirmation), 11 substantive vacancies were available on the basis of the permanent strength of the cadre;

(ii) Out of 133 temporary posts available during that period, 89 posts were assigned to promotees. The direct recruitment quota of 44 temporary posts available during this period were added to the pool of direct recruitment vacancies carried forward from the earlier period. The direct recruits of the 1964 batch were assigned ranks taking into account the direct recuitment vacancies carried forward from the previous period.”

25. Subsequently, the 1974 batch of direct recruits made a representation to the Government requesting that their ranks in the Gradation List might be re-fixed taking into account only the permanent posts in the cadre. They also claimed that they were eligible for confirmation against direct recruitment vacancies carried forward from earlier periods. The Government acceded to their request taking the view that for purpose of determination of seniority, only permanent posts should be taken into account and that the 1974 batch of Assistant Commissioners were eligible for confirmation on 15-7-1976. Accordingly, the Government, by its order dated 22-5-1980, directed that the 1974 batch of direct recruits in that cadre should be shown immediately below Sl. No. 64 (Sri Raghavendra Rao Manvikar) and above Sl. No. 65 (Sri Anirudha Desai) in the continuation of the Gradation List published on 2-2-1977.

26. We shall now set out the material facts of each writ petition, the grievance stated therein and the reliefs sought for therein.

27. The petitioner in W.P No. 4871 of 1980, M.G Kadali, was promoted as Assistant Commissioner on 27-1-1961. His grievance is that respondents 2 to 24, direct recruits of the year 1962, who were placed above him in the Gradation List of Junior Scale Officers published on 10-8-1976, should not have been so placed. He has prayed for quashing that Gradation List and also certain provisions of the General Recruitment Rules, 1957, and the Seniority Rules, 1957.

28. The petitioners in W.Ps Nos. 7409 and 7410 of 1980, T.C.S Gowda and M.L Nagaraj, were promoted as Assistant Commissioner, in the year 1971, Their grievance is that in the continuation of the Gradation List of Junior Scale Officers, published on 2-2-1977, direct recruits of the year 1974, G.R Govinda Bhat and others, who were placed above them, should not have been so placed. They have prayed for quashing the continuation of the Gradation List published on 2-2-1977 and the Government Order dated 22-5-1980. They have also prayed for striking down certain provisions of the General Recruitment Rules, 1957 and the Seniority Rules, 1957.

29. The petitioner in W.P No. 8739 of 1980, T. Ramachandra Badya, was promoted as Assistant Commissioner in December 1968. His grievance is that direct recruits of the 1969 batch and of 1972 batch who were placed above him in the Gradation List of Junior. Scale Officers, should not have been so placed. He has prayed for quashing the Government Order dated 22-5-1980. He has also prayed for a mandamus directing the State to place him above, direct recruits of those two batches. He has further prayed for a direction that the quota rule should be worked out taking into account permanent as well as temporary posts in the cadre.

30. The petitioner in W.P No. 8767 of 1980, M. Hongayya, was promoted as Assistant Commissioner on 23-7-1971. His grievance is that direct recruits of the 1974 batch who have been placed above him in the continuation of the Gradation List, published on 2-2-1977, should not have been so placed. He has prayed for quashing the Government Order dated 22-5-1980. He has also prayed for striking down certain provisions of the General Recruitment Rules, 1957.

31. The petitioners in W.Ps Nos. 1751 to 1758 of 1981 are direct recruits to the cadre of Junior Scale Officers. They were appointed on probation under the notification of the Government dated 19-7-1976 and they completed the probation satisfactorily on 18-7-1978 and a declaration to that effect was made by the Government. The petitioners in W.Ps Nos. 1759 to 1766 of 1981 are direct recruits to the cadre of Junior Scale Officers. They were appointed on probation under the notification of the Government dated 28-1-1977. They completed the probation satisfactorily on 27-1-1979 and a declaration to that effect was made by the Government. The grievance of all these petitioners is that they have not been confirmed with effect from the respective dates on which they satisfactorily completed the probation. They have prayed for a mandamus directing the Government to so confirm them and to assign them proper places in the Gradation List of Junior Scale Officers.

32. The petitioners in W.Ps Nos. 2059 to 2061 of 1981 are direct recruits of the 1976 and 1977 batches to the cadre of Junior Scale Officers. They completed the probation satisfactorily and they became eligible for confirmation in substantive vacancies. Their grievance is that their names have not been included in the continuation of the Gradation List published on 2-2-1977 as modified by the Government Order dated 22-5-1980. They claim that in such Gradation List they should be accommodated in the carry forward direct recruitment vacancies available to them and should be shown immediately below the direct recruits of the 1974 batch. They have prayed, inter alia, for a mandamus directing the Government to confirm them with effect from the date they were appointed, since vacancies were available in the direct recruitment quota and to place them in the Gradation List immediately below the direct recruits of the 1974 batch.

33. We shall first consider the grievances of the petitioners who are promotees.

34. Some of them have impugned the Gradation List of Junior Scale Officers as on 30-6-1976 published under the notification dated 10-8-1976. Some of them have impugned the notification dated 2-2-1977 by which certain additions were made in continuation of that Gradation List. Some of them have impugned the Government Order dated 22-5-1980 by which certain modifications were made in that Gradation List so as to assign higher places to direct recruits of the 1974 batch.

35. The following contentions were urged on behalf of the promotees;

(i) The date of entry into the cadre of Junior Scale Officers, whether by promotion or by direct recruitment, should be the only basis for determining seniority of officers in that cadre. The quota rule should be applied only at the stage of initial recruitment to the cadre and thereafter there should be no pushing down or pushing up of direct recruits or promotees and there should be no carry forward of direct recruitment or promotional, vacancies;

(ii) Even if carrying forward of any categories of vacancies, is permissible, it should not extend beyond 3 years;

(iii) The Cadre of Junior Scale Officers always consisted of permanent posts as well as temporary posts and the quota rule should be applied taking into consideration both permanent posts and temporary posts in that cadre;

(iv) The quota rule ceased to operate in regard to Junior Scale Officers when the 1959 Rules came into force and at any rate when the 1966 Rules came into force; and

(v) The Government Order dated 22-5-1980 by which direct recruits of the 1974 batch were assigned higher places in the Gradation List, was invalid, because such modification of the seniority in Gradation List was done without notice to promotees who were adversely affected by such modification.

36. We shall proceed to examine these contentions seriatim.

37. Contention (i)—

The relevant portions of Rule 17 of the General Recruitment Rules, 1957, read as follows:—

17. Appointment by direct recruitment or by promotion in certain cases.—

Notwithstanding anything contained in these rules or in the rules of recruitment specially made in respect of any service or post, the appointing authority may—

(a) recruit by direct recruitment to a post reserved to be filled by promotion when it is satisfied that the person eligible to be considered for appointment by promotion is not fit to be so appointed; or

(b) fill up by promotion any vacancy relating to a post which is required to be filled by direct recruitment when such vacancy is not likely to last for more than one year;

38. The following clause, clause (c), was added to that Rule by the notification dated 2-1-1965:

“(c) Fill up by promotion temporarily on the basis of Seniority-cum-merit any vacancy relating to a post which is required to be filled by direct recruitment where selection to the post has not been finally made and there is likelihood of undue delay in making direct recruitment to the post or where the candidate selected for the post as per recruitment rules has not yet joined duty. Such promotion shall be made only after a requisition has been sent to the Commission for selection of a suitable candidate. A candidate temporarily promoted under this sub-rule shall not have any preferential claim for regular promotion and also shall not count the period of services in the promoted post for seniority; he shall revert to his original post on the expiry of one year or on the appointment of a direct recruit selected in accordance with the rules of recruitment applicable to the post whichever is earlier,”

39. The corresponding Rule in the General Recruitment Rules, 1977, i.e, Rule 17, is substantially the same.

40. Considering the effect of Rule 17 of the General Recruitment Rules, this Court ruled thus in Badami's case at page 363 of the Report:

“If, however, promotions are made to vacancies in excess of the promotional quota, the promotions may not be totally illegal but would certainly be irregular and the promotees cannot claim any indefeasible right to hold the promotional posts; on the contrary, they will be liable to be reverted if and when direct recruitment is resorted to for the purpose of filling the vacancies in excess of the promotional quota which, by virtue of the provisions under the relevant rules, are required to be filled by direct recruitment. The said liability for reversion is one of the elements or circumstances to be noticed in deciding the relative seniority as between direct recruits on the one hand and the promotees on the other.”

41. On the same point, this is what the Supreme Court ruled in Badami's case at page 1565 of the Report:

“If promotions are made to vacancies in excess of the promotional quota, the promotions may not be totally illegal but would be irregular. The promotees cannot claim any right to hold the promotional posts unless the vacancies fall within their quota. If the promotees occupy any vacancies which are within the quota of direct recruits, when direct recruitment takes place, the direct recruits will occupy the vacancies within their quota. Promotees who are occupying the vacancies within the quota of direct recruits will either be reverted or they will be absorbed in the vacancies within their quota in the facts and circumstances of a case.”

42. In the light of the aforesaid rulings of the Supreme Court and this Court, it is no longer open to contend that the seniority in the cadre of Junior Scale Officers should be reckoned only on the basis of the date of entry into that cadre, whether by direct recruitment or by promotion, irrespective of whether such promotion or direct recruitment was within or in excess of the respective quota. If promotions have taken place in excess of the quota for promotion, pushing down the promotees promoted in excess of their quota or if direct recruitment was done in excess of the quota for direct recritment pushing down direct recruits appointed in excess of their quota is a necessary concomitant of the quota rule. Carrying forward of direct recruitment vacancies or promotional vacancies to the next recruitment period, is merely the consequence of such pushing down. We are unable to accept the contention of learned Counsel for the promotee-petitioners that there should be no such pushing down or such carry forward.

Contention (ii)—

43. It was next contended by learned Counsel for promotees-petitioners that even if carrying forward of direct recruitment vacancies or promotional vacancies to the next recruitment period, is permissible, such carry forward cannot be for more than 3 years. Support for this contention was sought from the following observation of Krishna Iyer, J., who spoke for the Constitution Bench of the Supreme Court in A.S Iyer v. Balasubramanyam . 1980 1 SCC 634

“A reasonable period for the carry forward scheme will be 3 years and not more.”

44. On the other hand, learned Counsel for direct recruits contended that the above observation was a casual one and in the nature of an obiter dictum and that observation should not be understood as lying down the law on this point. We are unable to accept this contention. In A.S Iyer's case, the Supreme Court was dealing with a service for which recruitment was from more than one source and quotas had been prescribed for such different sources. Hence, the above observation cannot be regarded as either casual or obiter.

45. In the light of the above ruling of the Supreme Court, it must be held that carry forward of direct recruitment vacancies or promotional vacancies, cannot extent beyond 3 years. However, this ruling of the Supreme Court (in A.S Iyer's case) does not affect the finality and binding character of the earlier judgment of the Supreme Court in Badami's case which specifically dealt with the Gradation List of Junior Scale Officers as on 1-1-1972 and gave directions as to how a fresh gradation list should be prepared. Those directions are bound to be obeyed while preparing such Gradation List of officers who entered that cadre upto 1-1-1972 without any limitation as to the period upto which promotional or direct recruitment vacancies should be carried forward to the next recruitment period. But such carry forward cannot exceed three years after 1-1-1972.

Contention (iii)—

6. Learned Counsel for promotee-petitioners contended that the cadre of Junior Scale Officer always consisted of permanent post as well as temporary posts and that therefore the quota between direct recruits and promotees should have been worked out taking into consideration both permanent and temporary posts in the cadre. Learned Counsel complained that in preparing the impugned Gradation List, published under the Government Notification dated 10-8-1976, such quota rule had been applied taking into account only the permanent posts in that cadre.

47. To understand the real nature of temporary posts, it is necessary to refer to Note 2 of Rule 49 of the Karnataka Civil Services Rules (hereinafter referred to as ‘the K.C.S.R’). That Note reads:

“Note 2: Temporary posts may be divided into two categories:—

(i) posts created to perform the ordinary work for which permanent posts already exist in a cadre, the only distinction being that the new posts are temporary and not permanent, and

(ii) isolated posts created for the performance of special tasks unconnected with the ordinary work which a service is called upon to perform. An example of the latter type of post would be a post on a commission of enquiry.

A distinction by strict verbal definition is difficult, but in practice there should be little difficulty in applying the distinction in individual cases. The former class of posts should be considered to be a temporary addition to the aedre of a service whoever may be the individual appointed to the post. The latter class of temporary posts should be considered as unclassified and isolated ex-cadre posts. Temporary posts which by this criterion should be considered as temporary additions to the cadre of a service should be created in the time-scale of the service ordinarily without extra remuneration. Incumbents of these posts will, therefore, draw their ordinary time-scale pay. If the posts involve decided incrcase in work and responsibility in camparison with the duties of the parent cadre generally, it may be necessary to sanction a special pay in addition. For isolated ex-cadre posts, it may occasionally be desirable to fix consolidated rates of pay. Where however, the post is to be held by members of a service, it will ordinarily be preferable also to create the post in the time-scale of the holder's service with a special pay, if necessary.”

48. Learned Counsel for petitioners maintained that temporary posts were created in that cadre from time to time for the officers holding those posts therein to perform the ordinary work for which permanent Posts already existed in that cadre and that therefore those temporary posts should be regarded as temporary additions to the cadre of Junior Scale Officers. In support of the above assertion, copies of several notifications and orders issued by the Government from time to time creating temporary Junior Scale posts or temporary posts of Assistant Commissioners, were produced before us at the time of hearing of these writ petitions. Government Order No. GAD (S-1) 148 SMC 59 dated 4-5-1960, read as follows:

“In the Government Order dated the 2nd December 1959 cited above, the permanent cadre strength of Assistant Commissioners had been fixed at 143.

2. For Administrative reasons it is considered necessary to include some Junior Duty posts under the cadre. Therefore sanction is accorded for the temporary inclusion of the following posts in the cadre of Assistant Commissioners, for a period of one year from the date noted against each:

(Names of 12 posts were set out)”

Government Order No. GAD 174 SMC 61 dated the 20th September 1961 stated that sanction was accorded to the temporary inclusion of five posts of Betterment Levy Officers in the cadre of Assistant Commissioners for a period of two years from 9-5-1961. Under Government Order No. GAD 85 SMC 61 dated 1-5-1961 sanction was accorded for creation of 3 posts in the cadre of Assistant Commissioners for the periods mentioned against each of those posts. By Government Order No. GAD 205 SMC 62 dated 2-11-1952 sanction was accorded for creation of 20 posts, of Assistant Commissioners for a period of 2 years

49. There are numerous Government Orders sanctioning, from time to time, temporary posts of Assistant Commissioners which are the same as the posts of Junior Scale Officers and extending the tenure of those temporary posts from time to time.

50. On the other hand, learned Counsel for direct recruits contended that the cadre of Junior Scale Officers or Assistant Commissioners, consisted of only permanent posts and not any temporary posts. They relied on the Karnataka Administrative Service Cadre Rules issued under Government order No. GAD (OM, 59 GRR 57 dated 23-1-1958. The relevant posts of those Rules, read:

“The Governor of Karnataka hereby sanctions the establishment of the State Service Cadres in respect of the Karnataka Administrative Service. The strength of each of the cadres and the number and character of the posts borne thereon shall be as follows:

Karnataka Administrative Service

The Service shall consist of two classes with the posts shown below (these will have effect from 1-11-1956):

Class I Posts (permanent Strength)

Category of posts No. of posts 1. Senior Duty Posts … 12 2. Junior Duty Posts … 107 Total … 119 3. Deputation Reserve … 23 4. Leave Reserve … 5 Grand Total … 147

51. Learned Counsel for the direct recruits submitted that in the above Rules, there was no mention of temporary posts in the cadre of Junior Scale Officers.

52. By Government Order No. GAD 76 MCS 58 dated 21-7-1959, the number of Posts of Junior Scale Officers was re-fixed as 134.

53. By the Government Order dated 2-12-1959, one more permanent post of Junior Scale Officer was sanctioned.

54. By the Government Order dated 23-1-1967, the number of permanent posts of Junior Scale Officers was increased to 151.

55. Though the Karnataka Administrative Service Cadre Rules mention of only permanent posts and not temporary posts in the cadre of Junior Scale Officers, the material produced before us clearly establishes that the cadre of Junior Scale Officers consisted of a considerable number of temporary posts at all material times. In para-6 of the statement of objections filed on behalf of the State in these petitions, the State has admitted thus:

“The cadre strength of K.A.S Class I (Junior Scale) Officers had itself undergone revision and the figures showed that 152 permanent posts and 133 temporary posts were available as is clear from the Notification No. GAD 590 SMC 74 dated 3-3-1976.”

56. However, learned Counsel for direct recruits relied on the following observations of the Supreme Court in Badami's case at page 1564 of the Report:

“First, the cadre here consists of only permanent posts. The cadre does not consist of any temporary posts.”

57. In Badami's case, the Supreme Court again observed thus at page 1565 of the Report:

“In E.P Rovappa v. State of Tamil Nadu (1974) 2 S.C.R 348: ((1974) 4 SCC 3 : A.I.R 1974 S.C 555) this Court said on the construction of Rule 4(2) of the relevant Cadre Rules in that case that the State Government might add for a period to the cadre one or more posts. But the posts so added could not become cadre posts. The temporary posts which are created due to exigencies of the service are posts which are outside the cadre.”

From the above observations, it would appear that the Supreme Court took the view that temporary posts which were created due to exigencies of service, were posts which were outside the cadre. In other words, the Supreme Court seems to have thought that temporary posts added to the cadre were ex-cadre posts. The attention of the Supreme Court does not appear to have been drawn to Note 2 to Rule 49 of the K.C.S.R which classifies temporary posts into two categories, namely, posts created to perform the ordinary work for which permanent posts already exist in the cadre, and isolated posts created for the performance of special tasks unconnected with the ordinary work which a service is called upon to perform.

58. In Badami's case, Counsel for the appellants argued before the Supreme Court, relying on the decisions in Har Swarup Gupta… v. Union Of India…. . 1973 3 SCC 1 and G.R Luthra v. Lt. Governor of Delhi . 1975 3 SCC 258 and A.K Subbaraman v. Union of India . 1975 1 SCC 319 that the quota rule applied to vacancies in all posts, whether permanent or temporary. But, the Supreme Court distinguished the decisions in these cases on the ground that the cadres therein consisted of both permanent and temporary posts. The Supreme Court also relied on Rule 9 of the Probation Rules, 1957 which provides for confirmation of a probationer as a full member of the Service in any substantive vacancy in the permanent cadre of such class. The Supreme Court observed that Rule established exclusion of temporary posts from the cadre. The Supreme Court held that the quota rule as between promotees and direct recruits, has to be worked out with reference to the permanent strength of the cadre.

59. Learned Counsel for promotee-petitioners contended that the ruling of the Supreme Court in Badami's case that the quotas for promotees and direct recruits in that cadre should be fixed on the basis of the permanent strength of that cadre, proceeded upon an erroneous, factual foundation that the cadre of Junior Scale Officers consisted of only permanent posts and that hence that ruling based on such factual error, cannot bind this Court, nor the promotee-petitioners in these writ petitions who were not parties to Badami's case and connected appeals before the Supreme Court.

60. We agree with learned Counsel for promotee-petitioners that the dictum of the Supreme Court in Badami's case that the cadre of Junior Scale Officers consisted only of permanent posts and did not include temporary posts, does not reflect the correct factual position that cadre consisted of both permanent and temporary posts. But, the conclusion of the Supreme Court that the quota rule as between direct recruits and promotees in that cadre, should be worked out on the basis of the permanent strength only of that cadre, did not rest solely on the premise that the cadre consisted of only permanent posts. As stated earlier, the Supreme Court based its conclusion also on Rule 9 of the Probationer as a permanent member of the service could be only in any substantive vacancy in the permanent strength of the cadre.

61. The above ruling of the Supreme Court is binding on all Courts under Article 141 of the Constitution. It is not open to us to speculate what would have been the conclusion of the Supreme Court if it had known the correct factual position that the cadre of Junior Scale Officers consisted both of permanent and temporary posts. That the promotee-petitioners in the present writ petitions were not parties in Badami's case, in no way detracts from the binding character of the law declared by the Supreme Court.

Contention (iv):—

62. It was next contended that the quota rule in regard to promotees in the cadre of Junior Scale Officers, prescribed by the 1957 Rules, stood abrogated by the 1959 Rules, and at any rate, by the 1966 Rules and that thereafter the seniority of Officers in the cadre had to be determined solely on the basis of the respective dates of entry into that cadre, whether by direct recruitment or by promotion.

63. Sub-rule (1) of Rule 3 of the 1959 Rules, read:—

(1) The provisions of these rules shall be applicable in respect of direct recruitment to the cadres in State Civil Services Class I and Class II specified in column 3 of the Schedule to these rules relating to the Services specified in the corresponding entry of column 2 of the said Schedule.

The cadre of Junior Scale Officers is one of the cadres specified in the Schedule to those Rules.

64. In support of the contention that the quota rule was abrogated by the 1959 Rules, learned Counsel for the promotee-petitioners strongly relied on the decision of the Division Bench (of which one of us was a member) of this Court in 6(V.R Radhakrishna v. The State of Karnataka). There, the controversy was in regard to seniority between direct recruits and promotees in the cadre of Assistant Commercial Tax Officers, which was a Class-II Service. The Karnataka Commercial Tax Service Recruitment Rules, 1959 had prescribed the method of recruitment to that cadre as follows:—

(i) 25 per cent by promotion from the cadre of Commercial Tax Inspectors

(ii) 8 ⅓ per cent by promotion by selection of Commercial Tax Inspectors, and

(iii) 66 ⅔ per cent by direct recruitment.

The cadre of Assistant Commercial Tax Officer was one of the cadres specified in the Schedule to the 1959 Rules. The Governments by its Order dated 28-11-1962, sought to regularise promotion, which had been made to the cadre of Assistant Commercial Tax Officer. That Government Order stated that there was great urgency in filling up vacancies in that cadre and that there was not sufficient time to make direct recruitment. In those two writ petitions the petitioners who were directly recruited to that cadre in the year 1965, contended, inter alia, that officials promoted as Assistant Commercial Tax Officers in excess of the promotional quota prescribed under the 1959 Rules, should be pushed down in the gradation list of Assistant Commercial Tax Officers and that the petitioners and other direct recruits appointed subsequent to such promotions, should be pushed up in such Gradation list. Repelling that contension, the Division Bench held that during the period the 1959 Rules were in force, the provisions of the Karnataka Commercial Tax Services Recruitment Rules, 1959 prescribing the Quotas for direct recruits and promotees, had to yield to the determination by the Government of the number of posts to be filled by direct recruitment. In other words, the ruling in those two writ petitions, was that the 1959 Rules empowered the Government to determine the actual number of vacancies to be filled by direct recruitment and that whatever number of posts the Government choose to fill by direct recruitment, constituted the direct recruitment quota and that there was no quota rule as between direct recruitment and promotion.

65. The ratio of the above decision undoubtedly supports the contention on behalf of the promotee-petitioners in these petitions, that the 1959 Rules abrogated the quota rule under the 1957 Rules and left it to the absolute discretion of the Government to choose how many vacancies should be filled by direct recruitment and how many by promotion.

66. But, in Badami's case, the Supreme Court considered specifically the effect of the 1959 Rules on the recruitment to the cadre of the Junior Scale Officers and observed thus at page 1562:

“On 2nd December, 1957, the 1957 Recruitment Rules came into existence for filling 66-2/3 per cent posts by promotion and 33-1/3 per cent by direct recruitment. In September, 1959 the Government issued the Mysore Recruitment of Gazetted Probationers Rules, 1959 whereby the quota for direct recruitment to the Mysore Administrative Service was increased from one-third to two-thirds for a period of five years and the quota for promotion was reduced from two-thirds to one-third.”

67. Again, at page 1566 of the Report, the Supreme Court observed:—

“The next period is from 11th September 1959 to 26 October 1964. From 11 September 1959 the promotional vacancies became one-third and direct recruitment vacancies became two-thirds.”

68. Thus, there is a clear pronouncement by the Supreme Court in Badami's case that even under the 1959 Rules, there were separate quotas for direct recruits and promotees to the cadre of Junior Scale Officers. No doubt, there is a conflict between the ratio of the decision of the Division Bench of this Court in V.R Radhakrishna's case and the decision of the Supreme Court in Badami's case. Unfortunately, the pronouncement of the Supreme Court in Badami's case, was not noticed by the Division Bench of this Court which decided V.R Radhakrishna's case. The decision of the Supreme Court in Badami's case is directly on the point whether between 11-9-1959 and 26-10-1964 there were separate quotas for direct recruits and promotees in the cadre of Junior Duty Posts. In V.R Radhakrishna's case, the Division Bench of this Court was considering whether there were separate quotas for direct recruits and promotees to the cadre of Assistant Commercial. Tax Officers during the period 11-9-1959 to 25-1-1964 (the date on which the Karnataka Commercial Tax Service Cadre and Recruitment Rules, 1964 came into force). The decision of the Supreme Court in Badami's case being direct in regard to the cadre of Junior Scale Officers, that decision should prevail over the decision of the Division Bench of this Court in V.R Radhakrishna's case which dealt with the cadre of Assistant Commercial Tax Officers, though the latter decision also considered the effect of the 1959 Rules.

69. Hence, we reject the contention that the 1959 Rules abrogated the quota rule in regard to recruitment to the cadre of Junior Scale Officers.

70. Learned Counsel for the promotee-petitioners contended that at any rate the 1966 Rules abrogated the quota rule with effect from 31-5-1966 in regard to recruitment to the cadre of Junior Scale Officers.

71. Clause (i) of Rule 2 of the 1966 Rules defines the term ‘available vacancies’ thus:

(i) ‘available vacancies’ means the vacancies in the service which, as determined by the State Government are required to be rilled up during any particular period of recruitment, on the result of an examination.

72. Clause (a) of Sub-rule (1) of Rule 3 of the 1966 Rules, reads:

(a) The provisions of these Rules shall be applicable in respect of direct recruitment to the categories of posts in State Civil Services specified in column 3 of Schedule I relating to the services specified in the corresponding entry of column 2 of the said Schedule.

The Karnataka Administrative Service is one of the service specified in Schedule I to the 1966 Rules.

73. It was argued that Sub-rule (3) of Rule 3 of the 1966 Rules empowered the State Government to fill up by direct recruitment such number of vacancies in the cadre of Junior Scale, Officers as might be determined by the State Government as being required to be filled up during any particular period of requirement. Learned Counsel maintained that sub-rule gave absolute discretion to the Government to determine the number of posts to be filled up by direct recruitment without reference to any quotas or proportion as between direct recruits and promotees and that the Government was also free to fill as many posts as it liked by promotion without any restriction of the quota rule.

74. On the other hand, learned Counsel for petitioners who are direct recruits, contended that the 1966 Rules did not repeal the 1957 Rules, but had merely overriding effect over the latter Rules, that the 1957 Rules were still in force subject to the overriding effect of the 1966 Rules and that the only effect of the 1966 Rules was that the Government was given the power to determine the number of appointments to be made by direct recruitment to the cadre of Junior Scale Officers in which case the propotionate number of promotions had to be made to that cadre in accordance with the quotas for direct recruits and promotees under the 1957 Rules. Learned Counsel maintained that having provided for two sources of recruitment to the cadre, it is manifestly unreasonable to hold that the Government was given arbitrary power to choose from which source it might appoint to that cadre and in what numbers.

75. As stated earlier, the 1959 Rules were in operation for only 6 years from 11-9-1959 and had overriding effect over the 1957 Rules. When the 1959 Rules were in full operation till 31-5-1966 when the 1966 Rules came into force and had overriding effect over the 1957 Rules as provided by sub-rule (2) of Rule 3 of the 1966 Rules. The question is to what extent the 1966 Rules had overriding effect over the 1957 Rules.

76. The title of the 1966 Rules (the Karnataka Recruitment of Gazetted Probationers' Posts appointment by Competitive Examination Rules) indicated that those Rules governed only the direct recruitment of Gazetted Probationers. Sub-rule (1) of Rule 3 stated that the provisions of those Rules should be applicable in respect of direct recruitment to certain categories of posts. Sub-rule (3) of Rule 3 provided that notwithstanding anything contained in the Recruitment Rules of the categories of posts specified in the schedule to those Rules, the available vacancies (vacancies which, as determined by the Government, were required to be filled up by direct recruitment during any particular period of recruitment) should be filled by direct recruitment.

77. Thus, the provisions of the 1966 Rules refer only to direct recruitment and not to promotions. How should promotions to posts in the cadres to which those Rules apply, be made? Do those Rules give unfettered discretion to the Government to make or not to make promotions to those cadres or to make as many promotions as it (the Government) chooses? If it was the intendment of the 1966 Rules to give such unfettered discretion to the Government, there was no need for those Rules to deal with direct recruitment only and all that those Rules need have provided was that the quota rule would not apply to those cadres.

78. The alternative interpretation of the 1966 Rules, is that those Rules merely empowered the State Government to determine how many posts in each of those cadres, should be filled by direct recruitment during any particular period of recruitment. If the Government determined such number, then the Government was under a duty to fill proportionate number of posts by promotion in accordance with the quota rule. For example, if the Recruitment Rules of any cadre provided that 66 ⅔ per cent of posts should be filled up by direct recruitment, for each post in a cadre the Government decided to fill by direct recruitment, the Government was under a duty to fill two posts in that cadre by promotion. In other words, the discretion given to the Government was only to determine the number of direct recruitment vacancies to be filled up in any cadre during any particular recruitment period. The Government had no power to fill up all vacancies in any cadre by direct recruitment only or by promotion only. The Government had also no power to make direct recruitment or promotion to a larger extent than permitted by the quota rule. Even under the 1966 Rules, the Government was bound to adhere to the quota rule of the respective cadre to which it sought to make appointments.

79. The question is which of these two alternative interpretations of the 1966 Rules, should be preferred. That the Government did not intend to do away with the quota rule altogether in process of recruitment to the cadre of Junior Scale Officers, is evident from the fact that the 1957 Rules were further amended by the Karnataka Administrative Services (Recruitment) (Amendment) Rules, 1977 (hereinafter called the 1977 Rules) which came into force on 18-8-1977. Those Rules modified the ratio between direct recruitment and promotions from 33 ⅓ per cent and 66 ⅔ per cent to 50 per cent and 50 per cent respectively. Having once provided in the 1957 Rules the ratio in which recruitment to that cadre should be made from the two sources, namely, direct recruitment and promotion, it is most unlikely that the 1966 Rules intended that there should be no quota rule regulating such ratio and that the Government should be conferred unguided and uncontrolled discretion as to the ratio in which such appointment could be made from those two sources. Moreover, conferment of such uncontrolled and unguided power on the Government is liable to be struck down as being violative of Article 14 of the Constitution.

80. It is a well settled rule of construction of statutes that if a statutory provision is capable of two constructions, one which is in consonance with the provisions of the Constitution and another which is in conflict with such provisions, the former construction should be preferred. Applying this rule of construction, we hold that the 1966 Rules did not do away with the quota rule in regard to recruitment to the cadre of Junior Scale Officers, but merely empowered the Government to determine how many vacancies in that cadre should be filled up by direct recruitment during any period of recruitment and that the Government was bound to maintain the ratio between direct recruit and promotees as prescribed by the 1957 Rules by making promotions proportionate to the number of direct recruits appointed.

81. We therefore reject the contention of learned Counsel for promotee-petitioners that after the 1966 Rules came into force, the quota rule ceased to apply to the recruitment to the cadre of Junior Scale Officers and that thereafter the date of entry into cadre, whether by direct recruitment or by promotion, became the only basis for determining the seniority in that cadre.

Contention (v):—

82. Lastly, it was contended for the promotee-petitioners that the Government Order dated 22-5-1980 (modifying the Gradation List of Junior Scale Officers published on 10-8-1976, by assigning higher places to direct recruits of 1974 batch), was invalid as being violative of principles of natural justice. Elaborating this contention, it was argued that promotees to the cadre of Junior Scale Officers who were affected by such modification, should have been heard before such modification was made.

83. In the statement of objections filed on behalf of the State, it was not disputed that the State Government did not give notice to promotees in the cadre of Junior Scale Officers nor did it hear them before modifying the Gradation List published on 10-8-1976 by giving higher places to direct recruits of the 1974 batch. However, it was pleaded on behalf of the State that since direct recruits of the 1974 batch had brought to the notice of the Government the mistake in regard to their ranks in the Gradation List, the Government had to concede their claim and accordingly to re-fix their ranks in that List and that since such re-fixation was attributable to unexceptionable and valid grounds, the promotees could not have any grievance unless they were in a position to dispute the factual position.

84. However obvious it might have appeared to the Government that the direct recruits of the 1974 batch had to be given their places in the Gradation List of Junior Scale Officers, it cannot be disputed that the promotees in that cadre were adversely affected by such modification of the Gradation List. The principles of natural justice required that the Government should have intimated the promotees of its proposal to modify the Gradation List and given them an opportunity of making a representation against such proposal. As the modification of the Gradation List of 10-8-1976 by the Government Order dated 22-5-1980, was in violation of the principles of natural justice, that Government Order should be quashed.

85. As we have upheld the contention of the promotee-petitioners that the period upto which direct recruitment vacancies or promotional vacancies can be carried forward to the succeeding recruitment periods, cannot exceed 3 years, we proceed to examine whether there was violation of that rule in the Gradation List dated 10-8-1976 or in the continuation of that List published by the notification dated 2-2-1977.

86. The grievance of M.G Kadali, the petitioner in W.P No. 4871 of 1980, is that though he had been promoted to the cadre of Junior Scale Officers on 27-1-1961, direct recruit of the 1962 batch were placed above him in the Gradation List of Junior Scale Officers. As the carry forward of direct recruitment Vacancies in this case, did not exceed 3 years, he cannot have any legitimate grievance.

87. T.C.S Gowda and M.L Nagaraj, petitioners in W.Ps Nos. 7409 and 7410 of 1980, have complained that though they were promoted to the cadre of Junior Scale Officers on 6-1-1971 and 12-1-1971 respectively, direct recruits appointed on 15-7-1974 were placed above them (the petitioners) in the Gradation List of Junior Scale Officers. Those direct recruits were appointed more than 3 years after these two petitioners were promoted to that cadre, and the direct recruitment vacancies could not have been carried forward beyond 3 years. The grievance of two petitioners is well-founded. Government Order dated 22-5-1980 which modified the Gradation List of 10-8-1976 and the continuation of that list published on 2-2-1977, in so far as direct recruits of the 1974 batch were placed above T.C.S Gowda and M.L Nagaraj in that Government Order, is unsustainable.

88. T. Ramachandra Badya, the petitioner in W.P No. 8739 of 1980, was promoted to the cadre of Junior Scale Officers in December 1968. His first grievance is that the direct recruits of the 1969 batch should not have been placed above him. This grievance has no merit since the carry forward of direct recruitment vacancies as regards direct recruits of the year 1969, did not exceed 3 years. His second grievance is that direct recruits of the 1974 batch should not have been placed above him by the Government Order dated 22-5-1980. This grievance is well-founded, as the carry forward of direct recruitment vacancies exceeded 3 years in regard to the direct recruits of 1974 batch. Placing direct recruits of the 1974 batch above him in the Gradation List, was clearly unsustainable.

89. M. Hongayya, the petitioner in W.P No. 8767 of 1980, was promoted to the cadre of Junior Scale Officers on 23-7-1971, while direct recruits of the 1974 batch were appointed on 15-7-1974. As the carry forward of direct recruitment vacancies in favour of the 1974 batch of direct recruits, was within 3 years, he could not have legitimate grievance.

90. We shall now consider the grievances of the petitioners who are direct recruits.

91. The petitioners in W.Ps Nos. 1751 to 1758 and 2059 of 1981 were directly recruited on 19-7-1976 and the petitioners in W.Ps Nos. 1759 to 1766, 2060 and 2061 of 1981 were directly recruited on 28-1-1977 to the cadre of Junior Scale Officers. They have complained that though they have satisfactorily completed their probation, they have not been confirmed with effect from the respective dates on which they so completed probation.

92. The learned Additional Government Advocate who appeared for the State along with the learned Advocate General, submitted that the above direct recruits had not yet been confirmed, because even the direct recruits of the earlier batch, i.e, the 1974 batch, had not yet been confirmed on account of the pendency of writ petitions in which the relative seniority between direct recruits and promotees in the cadre of Junior Scale Officers, has been in controversy. In such situation, it is inevitable that the direct recruits of the 1976 batch and the 1977 batch in the cadre of Junior Scale Officers, have to wait until such controversy is resolved and the direct recruits of the 1974 batch are confirmed.

93. In the result:—

(i) we dismiss W.Ps Nos. 4871 and 8767 of 1980 and W.Ps Nos. 1751 to 1766; and 2059 to 2061 of 1981;

(ii) we allow partly W.Ps Nos. 7409; 7410 and 8739 of 1980 and quash the Government Order dated 22-5-1980 by which certain modifications were made in the Gradation List dated 10-8-1976 of Junior Scale Officers in the Karnataka Administrative Service and the continuation of that List published by the notification dated 2-2-1977; and

(iii) we direct the State Government to modify the Gradation List dated 10-8-1976 of Junior Scale Officers in the Karnataka Administrative Service and the continuation of that List published by the notification dated 2-2-1977, by limiting the carry forward of direct recruitment vacancies and promotional vacancies in that cadre, to a maximum period of 3 years, in regard to the period subsequent to 1-1-1972.

94. In these petitions, we direct the parties to bear their own costs.