1997 INSC 0076
    U.P. Secretariat U.D.A. Association Through Its Joint Secretary, G. C. Srivastava and Others

                                                           Vs

                                              State of U.P. and Others

                                            SLP (C) No. 25086 of 1996

                                       (K. Ramaswamy, G. T. Nanavati JJ)

                                                      27.01.1997

                                                        ORDER

1. This special leave petition has been filed against the order of the Division Bench of the Allahabad
High Court, made on 2-7-1996 in Writ Petition No. 6200 of 1993. When the direct recruits had filed
the special leave petition, this Court by order dated 20-11-1996 dismissed the same. Shri Gopal
Subramaniam, learned Senior Counsel for the petitioners, who are now promotee UDCs in the U.P.
Secretariat Services contends that the learned Judges have given their reasoning at pp. 58 and 59
thus :

                  "From the aforesaid decisions of the Hon'ble Supreme Court, it is evident that the
                  initial appointment of the promotees on officiating basis was not in accordance with
                  the Rules, 1942, rather it was dehors the Rules. The contention of the petitioner that
                  the quota as envisaged in Rule 21 of the Rules, 1942, has broken down or collapsed
                  simply for the reason that due to certain administrative difficulties neither the
                  selection for direct recruits nor the selection by promotion against the vacancies took
                  place in the selection years with effect from 1971 to 1978, and hence according to the
                  decision of the Hon'ble Supreme Court in O. P. Singla v. Union of India [(1984) 4
                  SCC 450 : 1984 SCC (L&S) 657] and Direct Recruit Class II Officer's case [Direct
                  Recruit Class II Engineering Officers' Assn. v. State of Maharashtra, (1990) 2 SCC
                  715 : 1990 SCC (L&S) 339 : (1990) 13 ATC 348] the petitioners (promotees) should
                  not be pushed down before the appointees from the other sources inducted into the
                  service on later date (proposition E of the Direct Recruit Class II case [Direct Recruit
                  Class II Engineering Officers' Assn. v. State of Maharashtra, (1990) 2 SCC 715 :
                  1990 SCC (L&S) 339 : (1990) 13 ATC 348]) appears to be misconceived. Petitioners
                  were not at all prejudiced because of non-selection during the aforesaid period for the
                  reasons that the direct recruitment also did not take place during the aforesaid period
                  and that the petitioners in accordance with the seniority on the post of LDA were
                  given officiating promotion on the post of UDA against the vacancies existing in
                  their quota or otherwise. In view of the aforesaid position, it cannot be said that the
                  quota rule, as envisaged, under Rule 21 of Rules 1942 has collapsed down."

2. The above reasoning is not correct for the reason that during the a relevant period neither direct
recruitment nor promotions were made in accordance with the Rules. As a consequence, since the
promotees have been continuously officiating on the posts they are entitled to be put back to the
date from which they have been continuously officiating on the ground that the rule of quota has
broken down. We find no force in the contention. From the judgment of the Constitution Bench of
this Court in Direct Recruit Class II Engineering Officer's Association v. State of Maharashtra
[Direct Recruit Class II Engineering Officers' Assn. v. State of Maharashtra, (1990) 2 SCC 715 :
1990 SCC (L&S) 339 : (1990) 13 ATC 348] it is now settled law that merely because temporary
appointment or promotion came to be made, seniority cannot be counted from the date of officiation
except when the appointment was made in accordance with rules. Though appointment is temporary,
if it was made in accordance with rules and to a substantive vacancy, seniority will be counted from
the date of temporary promotion. Necessarily, the quota and rota require to be maintained so as to
give effect to the object envisaged under the Rules. Mere inaction cannot be made the ground to
contend that the quota rule was broken down. It is not in dispute that appointments have been made
in officiating capacity against the vacancies reserved for direct recruitment though no recruitment
had taken place. They are not according to the Rules and within the quota. The Division Bench,
therefore, has rightly held that the direct recruit is to be treated from the date on which he actually
joined the service, though vacancies did exist prior to that. As a consequence, the promotees are also
required to be fitted into the service from the date when they are entitled to fitment in accordance
with quota and rota prescribed under the Rules. The Division Bench, therefore, has rightly declined
to grant the relief to the petitioners.

3. The special leave petition is accordingly dismissed.