judgement:
vil Appeal No. 16 13 of 1990.
From the Judgment and Order dated 1.4.
1987 of Patna High Court in Civil Writ Jurisdiction Case No. 4097 of 1985.
196 R.K. Garg, Praveen Swarup and Pramod Swarup for the Appellants.
M.K. Ramamurthi, L.R. Singh, B.B. Singh, D.P. Mukherjee and M.P. Jha for the Respondents.
The Judgment of the Court was delivered by RAY, J.
Arguments heard.
Special Leave granted.
This appeal on Special Leave is directed against the Judgment and Order dated April 1, 1987 passed by the High Court, Patna m C.W.J.C. No. 4097/1985 allowing the writ petition in part.
The subject matter of the writ petition is the gradation list dated 9.1.
1986 of the Inspectors of Excise by which the Government of Bihar has finally fixed the inter se seniority of the petitioners (respondents in this Appeal) who were promoted vis a vis the respondents Nos. 3 and 4 (appellants in this appeal) who are promoted to posts of Inspectors of Excise in 5% quota for promotion from the posts of Upper Division Assistants of Excise Department in the said Civil Writ Petition.
The matrix of this case in short is that the appellants Nos. 1 and 2 who were respondents 3 and 4 of the writ peti tion were promoted to the posts of Excise Inspectors from among the Upper Division Assistants of the Excise Department against the vacancies of the year 1974 75 and they joined as Inspectors of Excise on May 7, 1976.
The respondent Nos. 3 and 4 who were Sub Inspectors of Excise were promoted on 24.4.74 in the vacancy of the year 1974 75 by the Commis sioner of Excise, Bihar.
In the gradation list prepared by the Government on January 9, 1986 the appellants were shown as seniors to the respondents even though the respondents were promoted from selected Sub Inspectors of Excise and they joined the posts of Excise Inspectors earlier than the date when the appellants were promoted as Excise Inspectors.
This has been challenged by the respondents on the ground that there is an apparent error committed by the State in showing the respondents juniors to the appellants in the gradation list.
The gradation list was challenged mainly on two grounds namely: (1) the State Government has no jurisdiction to determine the seniority of Excise Inspectors and the only competent authority for determining the same was the Excise Commis sioner who has neither determined the seniority nor prepared the gradation list.
197 (2) The respondents (petitioners of the writ petition) have continuously officiated for years together in the vacancy of direct recruits and merely because the respondents were appointed against the vacancy of direct recruits they could not be pushed down for determining the seniority and shown junior to the contesting appellants.
The writ petition was allowed by the High Court holding that the respondents were not appointed in the 5% quota set apart for being filed up by promotion from the posts of Upper Division Assistants in the Excise Department inasmuch as this quota was notified by the Government on March 31, 1975 even though the Government passed order providing 5% of the total vacancies to be filled by the promotion from among the selected Upper Divi sion Assistants and selected Head Clerks.
It has, therefore, been contended that the petitioners Nos. 3 and 4 (respond ents Nos. 3 and 4 in this appeal) cannot be shown as juniors to the appellants.
Moreover it has been alternatively urged that these respondents having been promoted to the posts of Inspectors of Excise in the quota of direct recruitment for several years, they could not be pushed down and the appel lants who joined on promotion to the posts of Inspectors of Excise subsequently cannot be shown as senior to the re spondents Nos. 3 and 4 in the said gradation list.
The High Court, Patna after hearing the parties held that the re spondents Nos. 3 and 4 who were appointed in the vacancies of the promotees of the year 1974 75 and who joined as Inspectors on 24.4.1974 cannot be made juniors to appellants Nos. 1 and 2 who were promoted and joined two years later on 7.5.
The High Court allowed the writ petition in part by quashing the gradation list (Annexure 15) and directed the Government to draw up a fresh gradation list in the light of observations made therein.
It is against this judgment and order passed in C.W.J.C. No. 4097/85, the instant appeal on special leave has been filed by the appellants.
The only question that falls for consideration in this appeal is whether the appellants who claim to be promoted to the posts of Inspectors of Excise in the 5% quota set apart for promotion to the posts of Inspector of Excise from among the Upper Division Assistants of the Excise Department against the vacancies of the year 1974 75 had been promoted in this quota.
In order to decide this question, it is relevant to refer to certain provisions of the Bihar Excise Act, 1915 as well as Rules 1 & 4 of the Inspectors of Excise Recruitment Rules, 1936.
198 Section 2(7) of the Bihar Excise Act, 1915 (hereinafter referred to as Act) defines Excise Commissioner "as the Officer appointed under Section 7 sub section 2 clause (a) of the said Act".
Section 7 Sub Section (2)(a) provides that the State Government may appoint an officer who shall sub ject to such control as the State Government may direct, have the control of the administration of the Excise Depart ment and the collection of the excise revenue.
Section 7(2)(a) further provides that the State Government may delegate to the Board, the Commissioner of a Division or the Excise Commissioner all or any of the powers conferred upon the State Government by or under this Act except the powers conferred by Section 89 to make Rules.
Section 7(2)(f) provides that the State Government may withdraw from any officer or person all or any of the powers of duties con ferred or imposed upon him by or under this Act.
By Notifi cation No. 417 dated January 15. 1919, in exercise of the powers conferred under the Act, the Lt. Governor in Council was pleased to make clause (ii) of the Notification order to the effect that there shall be an Excise Commissioner who shall subject to the control of the Board will have through out the province of Bihar the control of the administration of the Excise Department and the collection of excise reve nue.
It has also been provided in clause (iv) of the Notifi cation that the power to appoint by promotion Inspector of Excise was delegated to the Excise Commissioner by the Government.
Thus, it is clear and apparent that the Excise Commis sioner has been delegated the powers by the State Government to appoint by promotion from selected Sub Inspectors of Excise, but no here it has been mentioned in any of those provisions that the Excise Commissioner has been vested with the power of determining the seniority of the Inspectors of Excise.
Therefore, the submission that the seniority list or the gradation list prepared by the State Government is unauthorised being beyond the powers of the State Government is unsustainable and the gradation list that has been pre pared on January 9, 1986 by the State Government is legal and valid as upheld by the High Court.
It is necessary to refer to the recruitment rules to determine seniority.
Rule 1 of Excise Recruitment Rules, 1936 reads as follows: "1.
Inspectors of Excise and Salt shall be appointed: (i) by direct recruitment by the Board of Revenue,or, 199 (ii) by promotion of selected Sub Inspectors by the Commissioner of Excise and salt.
Not more than 25 per cent of the vacancies shall ordinarily be filled by direct recruitment; but with the approval of the Board of Revenue on the recommendation of the Commissioner of Excise this proportion may on any occa sion, be increased to 50 per cent".
Later on by Notification No. 1451 dated 2.3.
1945 published in the Bihar Gazette on March 7, 1945, the expression "not more than" in the last paragraph of Rule 1 has been delet ed.
Subsequently by Government Notification S.O. 411, dated 31st March, 1975 published in the Bihar Gazette, Extra ordinary Issue on that day, after clause (2) or rule 1 clause (3) has been added and it reads as follows: "by promotion from among selected confirmed Upper Division Assistants of the Excise Commissioner 's office and selected confirmed Head Clerks of the District Excise Offices".
By the said notification the following has been added at the end of rule 1 "Atleast 5 per cent of the total vacancies shall be filled by promotion from among the selected Upper Division Assistants and selected Head Clerks." Thus on a perusal of the said rule as amended clearly it indicates that 25% of the total vacancies for the post of Inspectors of Excise shall be filled by direct recruitment, 70% shall be filled by promotion from among the selected Sub Inspectors and 5% shall be filled by promotion from among the confirmed Upper Division Assistants of the Excise Commissioner 's Office and confirmed Head Clerks of the District Excise Offices.
The 25% quota of direct recruits can be relaxed and increased to 50 per cent.
It is signifi cant to note in this connection that no provision has been made in the said rules for relaxation of the quota of promo tees.
The necessary question arises if the promotion from Sub Inspectors of Excise to the post of Inspectors of Excise have been made in excess of the quota of the promotees in the vacancy of direct recruits and later on direct recruit ment has been made the promotees can in such circumstances be treated to be juniors to the direct recruits or not.
This question was under consideration before this Court in the case of V.B. Badami vs State of Mysore, A.I.R. 1980 SC 1561.
In this case The Mysore Administrative Service 200 (Recruitment) Rules, 1957 classified class 1 posts into two categories: senior scale posts and the junior scale posts.
Two thirds of the junior class I posts were filled by promo tion from Class II officers and the balance one third by direct recruitment by the Public Service Commission.
By the Mysore Recruitment of Gazetted Probationers Rules, 1959, the quota for direct recruitment to the Mysore Administrative Service was increased from one third to two thirds for a period of five years as a consequence of which the quota for promotees had been reduced to one third, Rule 17(b) of the 1957 Recruitment Rules empowered the Government to fill up posts temporarily by promotion against vacancies for direct recruits but such promotees were liable to be reverted after the appointment of direct recruits.
In January 1972, a Gradation List was published in which the direct recruits (respondents) were shown as senior to the appellants.
The appellants challenged the seniority of the respondents in writ petitions on the ground mainly that the respondents were recruited only to the 20 temporary posts created and that the appellants and 51 others were appointed to 59 permanent vacancies.
The appeal was dis missed by this Court and it has been observed as follows: "The principles generally followed in working out the quota rule are, (i) Where rules prescribe quota between direct recruits and promotees confirmation or substantive appoint ment can only be in respect of clear vacancies in the perma nent strength of the cadre; (ii) confirmed persons are senior to those who are officiating; (iii) as between per sons appointed in officiating capacity, seniority is to be counted on the length of continuous service; (iv) direct recruitment is possible only by competitive examination which is the prescribed procedure under the rules.
In promo tional vacancies, the promotion is either by selection or on the principle of Seniority cum merit.
A promotion could be made in respect of a temporary post or for a specified period, but direct recruitment has generally to be made only in respect of a clear permanent vacancy, either existing or anticipated to arise at or about the period of probation is expected to be completed; (v) 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 can not claim any right to hold promotional posts unless the vacancies fall within their quota.
If the promo tees occupy any vacancies which are within the 201 quota of direct recruits, when the 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 the case; and (vi) as long as the quota rule remains, neither promotees can be allotted to any of the substantive vacancies of the quota of direct recruits nor direct recruits can be allotted to promotional vacancies; and (vii) quotas which are fixed are unalterable according to exigencies of the situation.
They can only be altered by fresh determination of quotas under the relevant rules.
One group either on the ground that the quotas are not filled up or that because there had been a number in excess of the quota the same should be absorbed depriving the other group of quota.
" It thus emanates from the said Judgment of this Court that when promotion has been made in excess of the quota the promotees who have been promoted in the quota of direct recruits will be pushed down and will be absorbed in the quota of promotees of subsequent years and the direct re cruits made within their quota would be deemed to be senior to those promotees recruited in excess of their quota.
In the case of A. Janardhana vs Union of India & Ors., ; the question of determination of seniority between the direct recruits to the post of Assistant Execu tive Engineer (AEE) and the promotees from the post of Assistant Engineer fell for consideration.
The Military Engineer Services Class I (Recruitment, Promotion and Sen iority) Rules (1949 Rules for Short) were brought into operation on or from 1.4.
Under Rule 3 and 4 of 1949 Rules the recruitment to MES Class I was to be made from two sources, namely, by competitive examination in accordance with Part II of the Rules and by promotion in accordance with Part III of the Rules.
Rule 4 prescribed a quota of 9:1 between direct recruits and promotees.
During the years 1962, 1963 and 1964 particularly and until the year 1969, the Class I Service Rules were not statutory in character.
The Union Government relaxed the Rules both in regard to recruitment by interview and in regard to the quotas fixed by the Rules for direct recruitment and recruitment by promotion to Class I Service.
The 1949 Rules and the subse quent amendments thereto acquired statutory flavour in character by incorporation only in 1969 and till then they were mere administrative instructions.
202 It was due to emergency situation in .the market of recruitment of engineers between 1959 and 1969 and the dire need of urgently recruiting engineers which led the Govern ment to make recruitment m relaxation of quota rule by foregoing the competitive examination and promoting subordi nate ranks to Class i Service.
Appellant and similarly situated persons were thus promoted to meet the dire need of service in relaxation of the quota rule.
It has been observed by this Court that when recruitment is from two independent sources, subject to prescribed quota, but the power is conferred on the Government to make recruitment in relaxation of the rules any recruitment made contrary to quota rule would not be invalid unless it is shown that the power of relaxation was exercised mala fide.
It was also observed that the recruitment made to meet the exigencies of service by relaxing the quota rule the promo tion in excess of quota would be valid.
It had further been observed that once the quota rule was fully relaxed between 1959 and 1969 to suit the requirements of service and the recruitment made in relaxation of the quota rule and the minimum qualification rule for direct recruits was held to be valid, no effect could be given to the seniority rule enunciated in Para 3(iii) of Appendix V of the 1949 Rules, which was wholly interlinked with the quota rule and could not exist apart from it on its own strength.
This was im pliedly accepted by the Union Government and was implicit in the seniority lists prepared in 1963 and 1967 68 in respect of AEE, because both those seniority lists were drawn up in accordance with the rule of seniority provided in Army Instruction No. 241 of 1950.
It has been further held that there was no justification for redrawing the seniority list affecting persons recruited or promoted prior to 1969 when the rules acquired statutory character.
Therefore, the 1974 seniority list was liable to be quashed and the two 1963 and 1967 seniority lists must hold the field.
In Shri O.P. Singla and another vs Union of India & Ors., ; the question of inter se seniority between promotees and direct recruits came up for consideration before this Court.
Delhi Higher Judicial Service was consti tuted on May 15.
It was governed by the Delhi Higher Judicial Service Rules, 1970.
Rule 7 provides that the recruitment to the service will be made from two sources i.e. by promotion on the basis of selection from members of the Delhi Judicial Service, who have completed not less than ten years of service in the Delhi Judicial Service and by direct Recruitment from the Bar 203 provided that not more than 1/3rd of the substantive posts in the service shall be held by direct recruits.
The senior ity of direct recruits vis a vis promotees shall be deter mined in the order of rotation of vacancies between the direct recruit and promotees based on the quota of vacancies reserved for both categories.
Rule 7 provided that the first available vacancy will be filled by a direct recruit and the next two vacancies by promotees and so on.
It has been observed that persons who are appointed or promoted on an ad hoe basis or for fortuitous reasons or by way of a stop gap arrangement cannot rank for purposes of seniority with those who are appointed to their posts in strict conformity with the rules of recruitment, whether such latter class of posts are permanent or temporary.
It has also been observed that persons belonging to the Delhi Judicial Service who are appointed to temporary posts of Additional District and Sessions Judges on an ad hoc basis or for fortuitous reasons or by way of a stop gap arrangement, constitute a class which is separate and dis tinct from those who are appointed to posts in the Service in strict conformity with the rules of recruitment.
In view of this, the former class or promotees cannot be included in the list of seniority of officers belonging to the Service.
It has, therefore, been held that those who are appoint ed to the post of Additional District and Sessions Judges on ad hoc basis for fortuitous reasons cannot be taken into consideration in determining the seniority of the members of the Service.
In the case of G.S. Lamba & Ors.
vs Union of India & Ors.
, ; the question of inter se seniority between direct recruits and promotees cropped up for consid eration before this Court.
The Indian Foreign Service Branch 'B ' was constituted in 1956.
The statutory rules Indian Foreign Service Branch 'B~ (Recruitment, Cadre, Seniority and Promotion) Rules, 1964 were enforced on or from May 6, 1964.
It provided for recruitment from three sources: (1) direct recruitment on the result of a competitive exami nation held by the Union Public Service Commission (2) substantive appointment of persons included in the selective list promoted on the basis of a limited competi tive examination held by the Union Public Service Commission and 204 (3) Promotion on the basis of seniority By a notification dated February 12, 1975, Rule 13 was amended to provide that recruitment to the three different sources of integrated Grades II and III to be: (1) 1/6th of the substantive vacancies to be filled in by direct recruitment (2) 331/3 % of the remaining 5/6 of the vacancies to be filled on the basis of results of the limited competitive examination and (3) the remaining vacancies to be filled in by promotion on the basis of seniority.
The petitioners were selected by the Union Public Serv ice Commission on the basis of the merit obtained at the examination of Assistants conducted for the purpose for appointment to the post and allocated to the Ministry of External Affairs.
After the initial constitution of the service of 1956, they were offered an option whether they would like to join the I.F.S. Branch 'B ' in grade IV.
They opted and were inducted into the service.
Later they were promoted between 1976 and 1979 from Grade IV to the inte grated Grades II and III.
The Government of India published a seniority list of the integrated Grades II and III as on June 25, 1979 and before objections taken by the petitioners to the seniority list were dealt with, another seniority list was published on June 30, 1983.
This list was assailed by the petitioners on the ground that it is discriminatory and is consequently violative of Article 14 and 16 of the Constitution.
This Court upheld their contention and quashed the seniority list.
The Union Government was directed to prepare a fresh seniority list.
In the instant case direct recruitment had not been presumably made in excess of the quota and the promotees were appointed to substantive vacan cies in the service and they had been holding the posts for over 6 to 8 years.
In the seniority list that was prepared the direct recruits who were promoted much later to the promotees in excess of their quota were shown senior to the promotees, it has been held that once the promotees were promoted regularly and they have been officiating for a number of years the continuous officiation confers on them an advantage of being senior to the later recruits under Rule 21(4).
It has been further observed that if there has been an enormous departure from the quota fixed by exercis ing the powers to relax, the quota rule was not adhered to, the rota rule for inter se seniority as prescribed in 205 Rule 25(i) and (ii) cannot be given effect.
In the absence of any other valid principle of seniority it has been held that continuous officiation in the cadre, grade or service will provide a valid principle of seniority.
It has been held that where the direct recruitment had not been made according to the quota for years and promo tions have been made in excess of the quota and the promo tees were appointed in the vacancies of the direct recruits and work for a number of years, the quota rule cannot be given effect to and the promotees cannot be shown as junior to the direct recruits in the seniority list.
Continuous officiation in the cadre, grade or service will provide a valid principle of seniority.
Seniority List was, therefore, quashed and set aside.
In the case of Narendra Chadha vs Union of India, ; there was a quota rule for filling up the vacancies from two sources by direct recruitment as well as by promotion.
The direct recruitment was not made for number of years and the posts of direct recruits were filed up by promotion.
The promotees were allowed to function in the promoted posts for 15 to 20 years.
Thereafter direct re cruitment was made.
There was a rule which empowers the Government to relax the quota.
It was held that whenever a person is appointed in a post without following the rules prescribed for that appointment to the post, he should not be treated as a person regularly appointed to that post.
Such a person may be reverted from that post but in a case where persons have been allowed to function in higher posts for 15 to 20 years without due deliberation it would be unjust to hold that they had no claim to such posts and could be reverted unceremoniously or treated as persons not belonging to the service at all particularly where govern ment is endowed with the power to relax the rules to avoid injustice.
It has been held by this Court that continuous officiation of the promotees could be justified on the basis of the rule 16 on the presumption that the Government had relaxed the rules and appointed the promotees to the posts in question to meet the administrative requirements.
In the instant case undoubtedly, the Government made an order on 20.3.1974 for reservation of 5% of the posts for recruitment by promotion from among selected confirmed Upper Division Assistants of the Commissioner 's Office and the selected confirmed Head Clerks of the District Excise Of fices.
Pursuant to that order, the Government later on published a Notification S.O. 411 in the Bihar Gazette on March 31, 1975 stating therein about the quota of 5% of total vacancies reserved for the promotion of the selected Upper Division 206 Assistants to the post of Inspectors of Excise.
It has been urged by the learned counsel appearing on behalf of the respondents that the respondent Nos. 3 and 4 being promoted and appointed as Inspectors of Excise from the 75% quota for promotion from selected SubInspectors of Excise in April, 1974 they cannot be shown as junior to the appellants, in the seniority list inasmuch as the appellants were appointed on 7.5.1976.
It has been further submitted in this connec tion that the appointment of the appellants on promotion from the 5% quota of the vacancies available in 1974 cannot be made.
It has also been submitted that the Notification referring to the 5% quota for promotion of Upper Division Assistants cannot be deemed to be a quota in respect of vacancies for the year 1974 75.
As such quota cannot be enforced unless and until the reservation of 5% quota of vacancies is published in the official gazette for informa tion of the public.
In support of this submission the deci sion in Harla vs State of Rajasthan, ; was cited at the Bar.
In this case on 11.12.
1923 the counsel passed a resolution which purported to enact a law called The Jaipur Opium Act and the only question was whether the mere passing of the resolution without promulgation or publication in the Gazette or by other means to make the Act known to the public was sufficient to make it a law and enforce the same.
There was an amendment of Section 1 of the Jaipur Opium Act to the effect that it shall came into force from 1.9.1924.
The Act was never published in the Gazette.
It was held that the Jaipur Laws Act 1923 which required the whole of the Act to be published instead of publication of only one section, will not validate the same.
In the instant case, the Government made an order reserving 5% of the total vacancies in a year for being filled in by promotion from the selected Upper Division Assistants and Notification to that effect was published in the Gazette in March, 1975.
This Notification related to the vacancies for the year 1974 75 i.e. the year ends on March 31, 1975.
It is perti nent to refer to the specific averments made by Excise Commissioners, Government of Bihar, on behalf of the re spondent Nos. 1 and 2 The State of Bihar and Commissioner cum Secretary, Excise and Prohibition, Government of Bihar.
It has been stated in paragraph 3 of the Counter Affidavit: "That the promotion of the petitioners were caused in the Quota of 5% which was given to the petitioner by a Notifica tion dated 31.3.
1975 which is annexed in the petition as Annexure A but due to the noting given in the File, firstly by the Member of Board of Revenue on 20.3.
1974 and the 207 same has caused promotion to the petitioner which should not have been done unless there is a notification in effect to the noting given by the State Government.
" Noting given by the Board is reproduced herein below: quota in the cadre of Excise Inspector is given from the cadre of confirmed Upper Division Clerks, Excise Commissioner 's office and confirmed Head Clerks of District offices.
" It has been further stated that in the year 1976 the Secre tary of the Commission, Excise Department gave a note whose English translation is given below: "As stated at page 22 of the notesheet that the pay scale of Upper Division Assistants is more than the Head Clerks and therefore they will rank senior on that basis.
So first of all the question of promoting Sarvasri Awadh Prasad Singh and Ram Vriksh Pd.
Singh 's against the vacancy at Roster 67 and 68 has to be considered.
The question of promotion of Sarvasri Vidyadhar Ghatwari and Devendra Narain Pd. would be considered against future vacancies and therefore it is proposed to keep their names in the waiting list Sd/ Ravikishore Narain 26.4.
1976" It has been further stated in paragraph 5 of the said affi davit that the Excise Commissioner accordingly passed an order in the year 1976, which is dated 5.5. 1976, promoting the petitioner in accordance with the quota.
The English translation of the same is as follows: " So far the question of promotion of Assistants/Head Clerks is concerned the rule has been framed in 1974 and for the first time promotion is being given on this account.
I have carefully gone through the above rules and from perusal of the file it would appear that only 5% of the total vacan cies shall be filled in by the promotion.
In the rule, the word 2% at least" has come perhaps inadvertantly in at least 5%.".
There is no such mention in the file.
On this basis, as has been mentioned in the note of the Secretary only two posts have to be filled up from the quota of 208 Assistants.
So far as the persons by whom the filling up of the vacancies are concerned, I agree with the note of the Secretary marked 'Kh ' in the notesheet i.e. at present Awadh Prasad Singh and Ram Brikh Pd.
Singh should be promoted.
The name of Vidyadhar Pd.
and Devendra Narayan Pd. should be kept in the waiting list.
" It has been further stated that the Notification giving 5% quota which is annexed in the petition as Annexure A from the grade of Assistant/Head Clerks came into picture only on 31.3.1975 on the basis of order made by Government in March, 1974.
However, the petitioners were promoted on the vacan cies caused in the year 1974 75, because the decision was taken in the year 1974 itself and accordingly the Department carried out the same and accordingly a Gradation List was prepared.
A counter affidavit has also been filed on behalf of the respondent Nos. 6 & 7, that is, promotees, Inspectors of Excise.
It has been stated in paragraph 6 that the rules of recruitment of Inspectors of Excise were modified by Notifi cation No. 411 dated 31.3.
There was no provision in the Excise Act and Rules for appointment of Inspectors of Excise from among selected Assistants of Commissioner 's office and Head Clerks of the District Excise offices prior to this Notification.
This Notification for the first time required the Department of Excise to fill at least 5% of the total vacancies by promotion from among the confirmed Upper Division Assistants and selected Head Clerks.
The respond ents were promoted as Inspectors of Excise from Sub Inspec tors of Excise vide Order 2091 dated 24.4.1974 in their own quota and joined the promotional posts on 1.5.
It has also been stated that the appellants were appointed Inspec tors of Excise in the year 1976 and joined on 7.5.
Apparently there was no quota for appointment of Inspectors of Excise from among Assistants and Head Clerks in the year 1974 and the averments made by the respondent State or appellants to this effect is mala fide, ridiculous and false.
The appellants being appointed in the year 1976 by virtue of the Notification which came into existence on 31.3.
1975 cannot claim this vacancy of 1974 and hence seniority allotted to them by the respondent State was in flagrant, violation of law laid down by the Supreme Court and hence the High Court rightly allowed the C.W.J.C. No. 4097/85 against the appellants herein.
In the supplementary rejoinder affidavit on behalf of the appellants it has been stated in paragraph 4 that the State of Bihar has 209 proved the appellants, right to promotion on a vacancy that occurred in 1974 by the following clear admissions made by the State of Bihar in its counter affidavit.
"So far the question of promotion of Assistants or Head Clerks is concerned, the rule has been framed in 1974 and for the first time promotion is being given on this account." "However, the petitioners were promoted on the vacancies caused in the year 1974 75, because the decision was taken in the year 1974 itself and accordingly the Department carried out the same." It has also been stated in paragraph 5 of the said Rejoin der: "That the Government who was clearly conscious of the rights created by the decision to amend the Rules taken in 1974 and in accordance with the decision a Notification was issued later in March 1975.
But the ministerial failure to make the Notification conformed to the decisions taken in 1974 is no more than a clerical error and the Government therefore rightly promoted the petitioner within their quota against the vacancies occurred in 1974 by its Order.
" 1t has been further stated in paragraph 10 of the said rejoinder: "That there is a provision of seniority of Excise Inspector in Rule 6 of Recruitment Rules vide notification No. 54 dated 3.1.1936 for Excise Inspector.
It is clearly stated that the seniority of all Inspectors on confirmation will be determined in accordance with Government Order No. 6509/A dated 12.12.1934 which is still in force.
Besides there are also Government instructions with regard to seniority such as letter No. 15784 dated 26.8.1972.
The High Court ought to have considered the Rules of seniority when the case related to the seniority of Excise Inspector.
" In paragraph 11 it has been further averred: "That in view of the clear admission of the Government the petitioners are entitled to the benefit of promotion with effect from as against the vacancies of 1974 as fixed by the Government and the High Court order is liable to be set aside and the appeal may be allowed.
" 210 It thus appears from a perusal of the Affidavit in counter sworn by the Commissioner of Excise on behalf of the State of Bihar, the respondent Nos.
I and 2, that the order creating 5% of the vacancies for promotion from the posts of confirmed Upper Division Assistants and selected Head Clerks have been made by the Notification dated 31.3.
1975, though according to the noting given in the File by the Member, Board of Revenue on 20.3.
1974 on the basis of the Govern ment Order the petitioners (appellants of this appeal) were promoted in the vacancies of the year 1974 75 by order of the Excise Commissioner dated 5.5.1976.
Therefore, the argument on behalf of the respondents in this appeal that the appellants were promoted against the 5% quota in respect of the vacancies of the year 1975 76 is not sustainable.
The appellants having been appointed in the quota of 5% out of the vacancies of 1974 75 are entitled to be shown as senior in the gradation list prepared by the Government on 9.1.
We have already mentioned hereinbefore that the re spondent Nos. 3 and 4 were promoted from the selected Sub Inspectors Excise, that is, in the 5% quota reserved for promotion from the Upper Division Assistants of the Excise Department.
In accordance with the decisions rendered by this Court in the case of V.R. Badami vs State of Mysore, (supra) the respondent Nos. 3 and 5 who were promoted to officiate in the 5% quota of Upper Division Assistants and confirmed Head Clerks are to be pushed down as soon as the appellants have been recruited in the said quota to the posts of Inspectors of Excise in 1976 inasmuch as the promo tion though not illegal is irregular and the promotees are to be accommodated in the vacancies of subsequent years in their quota.
1t is only in the case of Narendra Chandha vs Union of India, (supra) exception was made by this Court to the aforesaid decision on the ground that the quota was broken down or not adhered to as there was no recruitment from the quota of direct recruits for a period of 15 to 20 years and the promotees were allowed to officiate in the quota of direct recruits for a long period of 15 to 20 years, in such circumstances, it was held that in view of Rule 16 empowering the Government to relax the quota rules, the promotees officiating in the vacancies of direct re cruits were presumable permitted to do so in relaxation of the quota as such the seniority will be determined from the date of their continuous officiating in the said posts.
Similar view has been expressed in G.S. Lamba 's case (supra).
In the instant case there was no rule for relaxa tion of the quota nor the respondent Nos. 3 and 4 who were promoted from selected Excise Sub Inspectors to the Inspec tors of Excise in the 5% quota of Upper Division Assistants in 1974 officiated till 7.5.1976 when the appellants joined as Inspectors of Excise from their 5% quota.
It cannot be said in such circumstances 211 that the quota has not been filled up for a long period nor can it be said that the respondents 3 and 4 who were promot ed in excess of their quota have worked as Inspectors of Excise for long time and as such the respondents Nos. 3 and 4 cannot claim to be seniors to the appellants.
Moreover, it is evident from the affidavit of the Commissioner of Excise on behalf of the State of Bihar that the 5% quota of vacan cies were brought into being by the Board of Revenue of March 20, 1974 though there was delay in notifying the same in the Gazette till 31.3.
Nevertheless, it has been subsequently averred that the appellants were promoted from the said 5% quota of vacancies of the year 1974 75.
In these circumstances on a conspectus of the decisions referred to hereinbefore as well as of the Government Order reserving 5% quota of vacancies on 20.3.
1974 and subsequent Notification of the same on 31.3.
1975 the only conclusion that follows is that the appellants being promoted as In spectors of Excise from the 5% quota of vacancies of the year 1974 75, they were rightly shown as seniors in the gradation list prepared by the Government on 9.1.
The findings of the High Court to the effect that the appellants were not promoted in the 5% quota of vacancies for the year 1974 75 is wholly wrong.
Accordingly, the gradation list prepared by the Government on 9.1.
1986 showing the appel lants as seniors to the respondents are quite legal and valid and so the same is upheld.
We, therefore, set aside the judgment and order passed by the High Court in C.W.J.C. No. 4097/ 85.
In the facts and circumstances of the case, there will be no order as to costs.
S.B. Petition allowed.

summary/full:
The subject matter of the Writ Petition is the gradation list dated 9.1.1986 of the Inspectors of Excise by which the Government of Bihar has finally fixed the inter se seniority of the Petitioners who were promoted vis a vis the appel lants in the present appeal who were promoted to posts of Inspectors of Excise in 5% quota reserved for promotion from the posts of Upper Division Assistants of Excise Department.
In the gradation list the appellants who joined as Inspectors of Excise on 7.5.76 were shown as senior to the Excise Inspector who were promoted from Sub Inspectors on 24.4.74 in the vacancies of direct recruits.
The gradation list was challenged in the High Court by the Respondents on two grounds i.e., (1) the State Govern ment has no jurisdiction to determine the seniority or gradation list of the Excise Inspectors, the competent authority is the Excise Commissioner (2) The Respondents in the present appeal have been continuously officiated for years together in the vacancies of direct recruits and thus could not be pushed down for determining the seniority and shown as juniors to the contesting appellants.
The High Court allowed the Writ Petition in part.
It was held that 5% quota to be filled up by promotion from Upper Division Assistants of Excise Department was notified only on 31st March 1975, whereas the appellants have been promot ed in the 5% quota of vacancies of the year 1974 75.
Hence they have not been promoted in the 5% quota.
The Respondents in the present appeal were promoted as Excise Inspectors on 24.4.74 in the quota of direct recruits and thus they could not be shown as juniors to those who were promoted and joined on 7.5.76 from 5% quota of the 1974 75 year vacan cies.
The High Court quashed the 194 gradation list and directed the State Government to draw up a fresh list in the light of the observations made.
Further it held that State Government is the competent authority to determine inter se seniority because where in any provisions of Bihar Excise Act 1915 government has vested the Excise Commissioner with the power of determining the seniority of the Excise Inspectors.
Hence the gradation list prepared by the State Government is legal and valid.
The appellants filed Special Leave petition in this Court against the High Court Judgment and Order.
Allowing the Special Leave Petition, this Court, HELD: The appellants claimed to be promoted to the posts of Inspectors in the 5% quota set apart for promotion from the Upper Division Assistants against the vacancies of the year 1974 75.
Since under Bihar Excise Act 1915 vide notifi cation No. 417 of 15.1.1919 clause (iv) the Excise Commis sioner was given only the powers to appoint Excise Inspec tors by promotions but not to determine inter se seniority etc.
Hence vide Excise Recruitment Rules 1936, Rule No. I vide notification No. 411 dated 31.3.75, after clause (2) clause (3) was added making provision for promotion from selected confirmed Upper Division Assistants and Head Clerks of the District Excise Office and also added at the end of the Rule 1 that at least 5% of the total vacancies shall be filled up by promotion from among the above notified staff.
In this rule the provision for relaxation of direct recruit ment quota was made but there was no relaxation of the quota of promotees.
[197G; 198C; 199E] The State Government made this decision and order on 20.3.74 regarding reservation of 5% of the total vacancies to be filled by promotion for the year 1974 75 but the notification to that effect was published on 31.3.75.
The promotion could not have been given unless the decision was confirmed by notification.
It was only after the notifica tion of 31.3.75, that the Upper Division Assistants were promoted as Excise Inspectors for the first time out of the 5% quota created in the vacancies of 1974 75, in the year 1976.
[205G H; 206B] The Government has rightly promoted the appellants within their quota in the vacancies occurred in 1974 by its orders.
[211D] When there is no relaxation in the quota vacancies as between the direct recruitment and promotees, the determina tion of inter se 195 seniority shall be determined in the order of rotation of vacancies reserved for both categories, the direct recruits made within their quota would always deemed to be senior to those promotees recruited inexcess of their quota.
[210H; 21 1A] V.B. Badami vs State of Mysore, AIR 1980 SC 1561; A. Janardhana vs Union of India & Ors., ; and O. Singla & Anr.
vs Union of India & Ors.
, ; , relied on.
It is only when the quota rule was not adhered to or followed for a long time and the promotees are allowed to officiate in the quota of direct recruits for a period of 15 to 20 years, in such circumstances Government is empowered to relax the quota rule and the promotees will have seniori ty from the date of the continuous officiations in the cadre, grade or service.
[210F] Narendra Chadha vs Union of India, ; and G.S. Lamba & Ors.
vs Union of India & Ors.
, ; Quotas are fixed under the relevant rules of recruit ments and can be altered only by fresh determination of quotas under the relevant rules of recruitments.
[201 C] In the instant case, there was no rule for relaxation of the quota.
The respondent Nos. 3 & 4 who were promoted from selected Excise Sub Inspectors to the Inspectors of Excise in 1974, officiated till 7.5.
1976 when the appellants joined as Inspectors of Excise from their 5% quota.
It cannot be said in such circumstances that the quota was not filled up for a long period nor can it be said that the respondents 3 & 4 who were promoted in excess of their quota have worked as inspectors of Excise for long time and as such the respondents 3 & 4 cannot claim to be seniors to the appellants.
[210G H; 211A] The appellants being promoted as Inspectors of Excise from the 5% quota of vacancies of the year 1974 75, were rightly shown as seniors.
in the gradation list prepared by the Government on 9.1.1986 which is legal and valid.
[21 1D]


judgement:
vil Appeals Nos.
1597 98 of 1988.
From the Judgment and Order dated 3.3.1988 of the Bombay High Court in W.P. Nos.
1409 & 1776 of 1986.
Dr. Y.S. Chitaley and Mrs. Urmila Sirur for the Appellant.
Ahok K. Gupta, S.J. Deshmukh, Ms. Vrinda Grover and Ms. Bina Gupta for Respondent Nos.
1 to 4.
The Judgment of the Court was delivered by SAWANT, J.
The present appeals arise out of a battle for recognition between the rival trade unions in proceedings under the Maharashtra Recognition of Trade Union & Preven tion of Unfair Labour Practices Act, 1971 (hereinafter referred to as the 'Act ').
The fourth respondent Company has two factories, one at Bhandup, Bombay employing about 1700 workers and the other at Aurangabad employing about 1000 workers.
The first respondent Union, viz., the Association of Engineering Work ers, Bombay obtained a certificate of recognition from Industrial Court, Thane under Section 12 of the Act, on April 7, 1977 for the Company 's undertaking at Bhandup.
While the first respondent Union was acting as such recog nised union, many of the workers claimed that they had resigned from the said Union and formed a new union called the Automobile Products of India Employee 's Union which is the appellant Union and registered it on January 7, 1981 under the .
On October 9, 1981, the appellant Union made an application to the Industrial Court, Thane under Section 13(1)(ii) of the Act for cancellation of the recognition of the first respondent Union on the ground that the latter 's membership in the Bhandup Undertaking had fallen below 30 per cent of the total strength of workmen in that Undertaking for the preceding six months.
In its reply dated November 16, 1981, the first respondent Union refuted the allegation in the application and contended that its membership was more than 30 per cent for the relevant peri od.
The appellant Union on March 1, 1982 submitted yet another application for cancellation of recognition of the first respondent Union this time under Section 13(1)(i) of the Act alleging that the recognition was obtained by the first respondent Union by misrepresentation and/or fraud, and that it was granted recognition also by mistake.
The Industrial Court rendered the relief in favour of the appel lant Union.
However, the said decision was set aside by the High Court and the decision of the High Court was upheld by this Court.
Here ended the first skirmish.
182 3.
The appellant Union thereafter started the second battle this time for its own recognition under Section 14 of the Act and the present appeals are an outcome of the said proceedings.
On July 29, 1982, the appellant Union filed an application under Section 14 of the Act for being registered itself as a recognised union in place of the first respond ent Union on the ground that it had the largest membership of the workers in the Bhandup undertaking, viz., 1036 out of a total of 1700 workers, i.e., about 69% of the total stength.
The first respondent Union in its reply of October 7, 1982 contested the appellant Union 's claim and pleaded that it had a membership of about 1400 workers.
Both the appellant Union and the first respondent Union furnished with their pleadings the details of their membership.
On August 19, 1985, the appellant Union made an application to the Industrial Court to hold an inquiry under Section 12(2) of the Act by directing the investigating officer to verify the membership of both the Unions.
On September 5, 1985, the Industrial Court gave directions to the Investigating Offi cer appointed under the Act to assist the Court, to investi gate the membership of both the Unions.
While the Investigating Officer was in the process of verifying the memberships of the two Unions, suggestions were made for deciding by secret ballot as to which of the Unions commanded the majority.
As per the suggestion, the first respondent Union on December 19, 1985 submitted a draft proposal to the Industrial Court as follows: 1.
The issue pertaining to recognition of any of the unions be decided by secret ballot and the Investigating Officer be directed to conduct the same ballot.
The Union which would have the majority of the votes would be treated as recognised trade union and the one which fails to get the majority would not raise any tech nicality or objection.
The union which thus fails to secure majority in the ballot would raise no objection for the period of three years to the union thus declared as the recognised union.
The appellant Union also submitted its draft proposal, at the same time, in more or less the same terms.
On the same day, i.e., December 19, 1985, the Industrial Court passed an order directing the Investigating Officer to hold a secret ballot in the premises of the Company within 30 days from the date of the order.
The employees who were entitled to vote in the ballot were those who were on the rolls of the 183 Company on July 1, 1985, those who joined employment of the Company, thereafter, being disentitled to do so.
According ly, a secret ballot was held on January 4, 1986.
The result of the ballot showed that in all 1585 workers voted, but only 1578 ballot papers were valid.
The appellant Union secured 798 votes whereas the first respondent Union secured 780 votes.
The Investigating Officer submitted his report to the Industrial Court on January 21, 1986.
On January 30, 1986, the first respondent submitted its objections contend ing that the cut off date of July 1, 1985 was not correct as the employees who were in employment of the Company and whose services were intermittently interrupted were not given an opportunity to exercise their votes, and that there should have been a proper notification with regard to the date of voting so that the employees who were away could have exercised their votes.
On February 10, 1986, the Indus trial Court passed an order granting recognition to the appellant Union in place of the first respondent Union, under Section 14 of the Act after disposing of the objec tions raised by the first respondent Union.
The Industrial Court held that since there was an agreement between the two unions, the procedure adopted to grant recognition to the union under the Act was a valid one.
The Industrial Court also held that there was no substance in the objections of the first respondent Union that by treating July 1, 1985 as the cut off date, the workers who were otherwise entitled to vote were deprived of their right to vote and also that the notice of the ballot which was given to the workers was proper one.
The Industrial Court further granted the request of the appellant Union for cancellation of the recognition of the respondent union.
under Section 13(1)(vii) of the Act as a consequence of the recognition of the appellant Union.
On February 11, 1986, the Industrial Court granted a certif icate of recognition to the appellant Union under Section 14 of the Act.
Against the said decision, two writ petitions were filed in the Bombay High Court under Article 227 of the Constitution of India, one, viz., Writ Petition No. 1409 of 1986 by two workers who were members of the first respond ent Union and the other, viz., Writ Petition No. 1776 of 1986 by the first respondent Union.
In both the petitions, it was alleged that the Industrial Court had violated the provisions of the Act relating to the grant of recognition of the Union by adopting a procedure which was not sanc tioned by it and which was, therefore, illegal and invalid.
Reliance was placed for this purpose on a decision of the Bombay High Court in Maharashtra General Karngar Union, Bombay vs Mazdoor Congress, Bombay & Ors., [1983] M.L.J. 147.
The appellant Union contested both the petitions con tending that 184 the petitioners there were estopped from challenging the procedure which was adopted by the Industrial Court by consent of the first respondent Union.
The High Court by its impugned decision allowed both the writ petitions and set aside the order of the Industrial Court mainly relying upon its earlier decision in Maharashtra General Kamgar Union, Bombay case (supra).
The present appeals are directed against the impugned decision passed in both the said writ petitions.
What, therefore, fails for our consideration in these appeals is whether the procedure adopted by the the Indus trial Court for granting recognition to the appellant Union was illegal.
To appreciate the answer, it is necessary first to appreciate the object and the scheme of the Act.
As has been stated in the Preamble of the Act, the State Government had appointed a committee called the "Committee on Unfair Labour Practices" for indentifying certain activities of employers and workers and their organisations which should be treated as unfair labour practices and for sug gesting actions to be taken against the employers and employees or their organisations for engaging in such unfair labour practices.
The Government, after considering the report of the Committee, was of the opinion that to deal with the unfair labour practices, it was necessary among other things, to provide for the recognition of trade unions for facilitating collective bargaining, and to state their rights and obligations, to confer certain powers on them and to provide for certain consequences for indulging m unfair labour practices.
It is further a common knowledge that although since long there was a strong demand from some sections for recog nising the bargaining agent of the workmen by a ballot secret or otherwise, the National Labour Commission did not countenance it for certain obvious reasons.
It was felt that the elective element would introduce unhealthy trends which would be injurious to the trade union movement, to industri al peace and stability endangering the interests of the workers, the employers and the society as a whole.
It was feared, and from what has become almost a normal feature today, we can say rightly, that the elective element will encourage the growth of mushroom unions just on the eve of election outbidding each other in promising returns to the workers merely to assort supremacy and unmindful of the health of the industry leading eventually to unwarranted industrial strife, stoppage of production and even closure of the establishment with a consequent loss of production and employment.
It was, therefore, thought prudent in the interests of stable industrial 185 relations and industrial peace to evolve a mechanism whereby the bargaining agent on behalf of the workers will have a durable stability as such agent, with a guarantee of unin terrupted loyalty of its members and an unquestionable representative character over a certain period of time.
That is why the concepts such as "recognised union" or "represen tive union" emerged and along with it the machinery to determine it.
The mechanism necessarily involved a process by which the workers who claimed that they were speaking through their bargaining agent had the responsibility to maintain their support to it over a reasonable period of time.
This could be ensured by them by continuing their membership of the union over a specific period.
The continu ation of their membership of the union concerned over a period ensured that their association with the bargaining agent was of a steady and durable character and their alle giance and loyalty to it were not of a fleeting moment but were born of a proper evaluation of all facts.
It is in the light of this background that we have.
to examine the scheme of the Act so far as it relates to the recognition and derecognition of the Unions.
Chapter III of the Act deals with the recognition of unions, whereas Chapter IV deals with their obligations and rights.
Chapter VI deals, among other things, with unfair labour practices on the part of the recognised unions and Chapter VII gives powers to Courts to declare certain acts of recognised unions as unfair labour practices.
Chapter VIII gives to the Courts the power to punish and Chapter IX, to impose penalty on the recognised unions.
The privileges given to the recognised unions and the obligations and responsibilies cast on them are also considerable.
Chapter III which deals with the recognition of unions makes it clear in Section 10 that the said Chapter shall apply to every undertaking where fifty or more employees are employed, or were employed on any day of the preceding 12 months.
If the number of employees employed in the undertak ing at any time falls below 50 continuously in a period of one year, the Chapter ceases to apply to such undertaking.
Section 11 of the Chapter then states the procedure for recognition of union.
A union which is desirous of being registered as a recognised union for any undertaking has to make an application to the Industrial Court for the purpose.
However, for making such application, the Union must have not less than 30 per cent of the total number of employees in that undertaking as its members for the whole of the period of six calendar months immediately preceding the calendar month in which it makes the application.
The Indus trial Court then has 186 to dispose of the application as far as possible within three months from the elate of the receipt of the applica tion if all the concerns of the undertaking are situated in the same local area; and in any other case, within four months.
Section 12 then lays down the manner in which the Indus trial Court will proceed to enquire into the application and grant recognition.
On receipt of the application, the Indus trial Court has to make a preliminary scrutiny of it to find out that it is in order.
The Court then has to cause a notice to be displayed on the notice board of the undertak ing for which the recognition is sought, stating therein that the Court intends to consider the said application on a date specified in the notice, and also calling upon the other union or unions, if any, in the undertaking as well as the employers and employees affected by the proposal for recognition, to show cause within a prescribed period as to why recognition should not be granted to the applicant union.
If after considering the objections, if any received, and if after holding such enquiry in the matter as it deems fit, the Industrial Court comes to the conclusion that the applicant union satisfies the condition stated in Section 11, viz., among other things, that it has a membership of not less than 30 per cent for the relevant period and that it also satisfies the conditions which are specified in Section 19 of the Act, the Court grants recognition to the applicant union and issues a certificate of such recognition to it.
On the other hand, if the Court comes to the conclu sion that any of the other unions has the largest membership of employees and the said other union has notified to the Court its claim to be registered as a recognised union and if that other union also satisfies the requisite conditions of Section 11 and 19 of the Act, the Court has to grant recognition to the said other union.
It is necessary, at this stage to state the conditions laid down in Section 19 which are necessary to be complied with by a union for recognition.
Section 19, which appears in Chapter IV dealing with the obligations and rights of recognised unions, lays down that the union which seeks recognition under the Act has to provide in its rules the following matters, and those matters have to be duly observed by it, viz., (i) the mem bership subscription of the union should not be less than fifty paise per month; (ii) the Executive Committee of the union must meet at intervals of not more than three months; (iii) all resolutions passed by the Executive Committee or the general body of the union have to be recorded in a minute book kept for the purpose; and (iv) the union 's accounts have to be audited at least once in each financial year by an auditor appointed by the State Government.
187 Section 12 then states that at any time there shall not be more than one recognised union in respect of the same undertaking.
The section also enjoins upon the Court not to recognise any union, if it is not satisfied that the appli cation for its recognition is not made bona fide in the interest of the employees but is made in the interest of the employer and to the prejudice of the interest of the employ ees.
So also the section mandates the Court not to recognise any union if at any time within six months immediately preceding the date of the application for recognition, the applicant union has instigated, aided or assisted the com mencement or continuation of a strike which is deemed to be illegal under the Act Section 13 provides for cancellation of the recognition of the union and suspension of its rights as a recognised union.
It states that if the Industrial Court is satisfied after holding an enquiry in the matter that: (i) the union was recognised under mistake, misrepresen tation or fraud, or (ii) the membership of the union has for a continuous period of six calendar months fallen below the minimum required under Section 11 for its recognition, viz., 30 per cent of the total strength of the employees; or (iii) the recognised union has, after its recognition, failed to observe the conditions specified in Section 19; or (iv) the recognised union is not being conducted bona fide and is being conducted in the interest of employer to the prejudice of the interest of the employees; or (v) it has instigated, aided or assisted the commencement or continuation of a strike which is deemed to be illegal under the Act; or (vi) its registration under the is cancelled; or (vii) another union has been recognised in place of the union recognised under the said Chapter, it would cancel its recognition.
The Industrial Court is also given the power to suspend the rights of the 188 recognised union for some specified period and it may not proceed to cancel the recognition, if it is satisfied that the former course is in the circumstances, a proper one.
Section 14 with which we are concerned then lays down the procedure for recognition of other union when there is already a recognised union in the field.
It states that any union can make an application for being registered as a recognised union in place of a recognised union which is already registered as such for the undertaking.
Such other union can make an application on the ground that it has the largest membership of employees employed in the undertaking.
The conditions precedent to making such application, howev er, are that: (i) a period of at least two years must have elapsed since the day of the registration of the recognised union; (ii) a period of one year should have elapsed since the date of disposal of the previous application for recognised of such union; (iii) the union must have satisfied the conditions neces sary for recognition specified under Section 11; and in addition, (iv) its membership during the whole of the period of six calendar months immediately preceding the calendar month in which such application is made must have been larger than the membership of the recognised union; (v) the provisions of Section 12 (which also include the conditions specified in Section 19), are satisfied.
If, however, the Court comes to the conclusion that any of the other unions has the largest membership of employees and such other union has also notified to the Court its claim to be registered as a recognised union and that such other union also satisfies the necessary conditions, the Court will grant recognition to the other union.
Section 15 provides for re recognition of the union whose recognition has been cancelled on the ground that it was recognised under a mistake or on the ground that its membership had for a continuous period of six calendar months fallen below the minimum required under Section 11, viz., below 30%.
Such an application can be made by the derecognised union after three months from the date of its derecogni 189 tion.
On such application being made, the provisions of Section 11 and 12 referred to above would apply to it as they applied to an application made for the union 's initial recognition.
However, this section also makes it clear that if the recognition of the union had been cancelled on any other ground, it cannot apply for re recognition within a period of one year from the date of such derecognition save with the permission of the Court.
Section 16 states that even if the recognition of union is cancelled, it will not relieve the union or any of its members from any penalty or liability incurred under the Act prior to such cancellation.
Section 18 provides for recogni tion of unions for more than one undertaking.
Section 20 which appears along with Section 19, 21 and 23 in Chapter IV dealing with the obligations and rights of recognised un ions, among other things, deals with the right of a recog nised union and of such officers and members of the office staff and members of the recognised union, as may be autho rised by or under rules made by the State Government.
Those rights include the right: (a) to collect sums payable by members to the union on the premises, where wages are paid to them; (b) to put up or cause to be put up a notice board on the premises of the undertaking in which its members are em ployed and to affix or cause to be affixed notice thereon; (c) for the purpose of the prevention or settlement of an industrial disputes (i) to hold discussions on the premises of the undertaking with the employees concerned, or its members (ii) to meet and discuss with the employer or any person appointed by him in that behalf the grievances of employees; (iii) to inspect, if necessary, any place in the undertaking where any employee is employed; (d) to appear on behalf of any employee or employees in any domestic or departmental enquiry.
The section also makes it clear that it is only the recog nised union.
190 when there is one, which shall have the right to appoint its nominees to represent workmen on the Works Committee consti tuted under Section 3 of the and it is only the recognised union which shall have the right to represent in certain proceedings under the said Act, and that the decisions arrived at or order made in such proceedings shall be binding on all the employees in such undertaking, and to that extent the provisions of the said Act shall stand amended.
Section 21 then states that when there is a recognised union, no employee in the undertaking shall be allowed to appear or act or allow to be represented in any proceedings relating to unfair labour practices specified in Items 2 and 6 of Schedule IV of the Act except through the recognised union.
The only exception to this rule is in the case of the undertakings governed by the Bombay Industrial Relations Act where the representatives of the employees under Section 30 of that Act are given the special privilege.
It is not necessary to deal with the other provisions of the Act.
It is thus clear that the recognition or derecogni tion of a union under the Act is not a matter which concerns only the contesting unions or its members.
It is a matter of utmost importance to the interests of all the workmen in the undertaking concerned and to the industry and society in general.
No union is entitled to be registered as a recog nised union under the Act merely because it satisfies the membership qualification.
The Industrial Court is forbidden from granting recognition to a union whatever its member ship, if the Court is satisfied that it is disqualified for reasons mentioned under Section 12(.5) and 12(6) or does not satisfy the conditions mentioned in Section 19.
A period of two years must further have elapsed since the registration of the recognised union, if there is one, before an applica tion for recognition of a new union is entertained.
A union whose recognition is cancelled on the ground specified in clause (ii) of Section 13 cannot make a fresh application for a period of three months, and if its recognition is cancelled on any other ground it cannot make a fresh appli cation for recognition for a period of one year from the date of the cancellation in the latter case without the permission of the Court.
In addition to the membership qualification, therefore, the Court has also to satisfy itself that the applicant union is not disentitled to recog nition or to apply for recognition, under the other provi sions of the Act.
As regards the membership qualification itself, the Act enjoins that for being recognised, the applicant union must have firstly a membership of a minimum of 30 per cent of the employees of the undertaking for the whole of the period of at least six calendar months 191 preceding the month in which the application for recognition is made.
When the applicant union seeks recognition for itself by displacing the existing recognised union, the applicant union has, in addition, to satisfy that not only it had 30 per cent of the membership during the six calendar months immediately preceding the calendar month in which it made its application, but had also a larger membership during the said period than the membership of the recognised union.
Even with regard to membership, therefore, what has to be satisfied by the concerned union is not only its minimum qualifying membership but also its competing superi ority in it over a continuous specified period.
What should further be not lost sight of is the paramount fact that it is the membership of the workmen of the union over a period vouched by the relevant documents and not their vote on a particular day which under the Act gives the Union its representative character.
It is its representative character determined by such membership that gives a union a right to make the application for recognition.
However overwhelming therefore the vote may be in its favour in a ballot, it will not entitle a union to recognition under the Act.
the recog nition by ballot or by any method other than that laid down in the Act is, therefore, alien to the Act.
The facts in the present case would reveal that what was done by the Industrial Court was to permit the registra tion of the union as a recognised one by a method which was clearly alien to the Act.
The Court in effect allowed the parties to circumvent the provisions of the Act and by adopting a simplistic method directed that whoever commanded a majority of votes of the employees voting on a particular day, would be entitled to the status of the recognised union.
In effect, therefore, the Court ignored in particular the mandatory provisions of Sections 10, 11, 12, 14 and 19 of the Act.
Not only that, but by adopting this method, the Court also failed to find out whether any of those workers who voted were members of any of the two unions at any time including on the day of the ballot.
This is apart from the fact that what has to be found out is the exclusive member ship of the contesting unions continuously over the speci fied period, the overlapping membership being ignored.
The consent of the parties to follow a procedure which is against the mandatory provisions of the Act, cannot cure the illegality.
For reasons which we have indicated earlier the legislature did not opt for the ballot as a method for determining the representative character of the union and laid down an elaborate procedure with necessary safeguards, to do so.
In the circumstances, to permit the parties by consent to substitute a procedure of their own is in effect to permit them 192 to substitute the provisions of the Act.
Hence, we are of the view that the order of the Industrial Court granting recognition under the Act to the appellant Union by following the method of ballot is prima facie illegal being in breach of the provisions of the Act.
The High Court had, therefore, rightly interfered with the said order by relying on its earlier decision in the case of the Maharashtra General Kamgar Union, (supra).
In the re sult, the appeals fail and are dismissed.
The matter is remanded to the Industrial Court for disposal according to law.
It is, however, made clear that if there are any set tlements which have been arrived at between the appellant Union and the respondent Company, they will be allowed to run their full course.
The appellant Union will not enter into any settlement during the pendency of the present proceedings and if any settlement is to be entered into, it should be done only with the consent of the respondent Union which has not lost its recognition as yet.
There will be no order as to costs.
N.V.K. Appeals dismissed.

dataset_name: IN-Abs

summary/full:
The fourth respondent, a company had two factories in the State of Bombay.
The first respondent Union obtained a certificate of recognition from the Industrial Court under section 12 of the Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971 for one of the company 's undertakings.
While it was acting as such recognised union, many of the workers claimed that they had resigned from the said union and formed a new union, the appellant Union had it registered on January 7, 1981.
The Appellant Union made an application to the Industri al Court under Section 13(1)(ii) on October 9, 1981 for cancellation of the recognition of the first respondent Union on the ground that the latter 's membership in the undertaking had fallen below 30 per cent of the total strength of workmen in the undertaking for the preceeding six months.
The allegations were refuted by the first re spondent Union and it was further contended that its member ship was more than 30 per cent for the relevant period.
Another application was submitted by the appellant Union on March 1, 1982 for cancellation of the recognition of the first respondent Union under Section13(1)(ii) alleging that the recognition was 178 obtained by misrepresentation and/or fraud, and that it was also granted recognition by mistake.
The Industrial Court rendered the relief in favour of the appellant Union, but the said decision was set aside by the High Court, and confirmed by this Court.
After sometime the appellant Union moved an application under section 14 for being registered itself as a recognised union in place of the first respondent Union on the ground that it had the largest membership of the workers in the undertaking, i.e. about 69% of the total strength.
This claim was contested by the first respondent Union, in its reply, and it was pleaded that it had a membership of 1400 workers.
Details of membership were furnished by the parties with their pleadings and an application was made by the appellant Union to the Industrial Court to hold an enquiry under section 12(2) by directing the Investigating Officer to verify the membership of both the Unions.
The Industrial Court thereupon gave directions to the Investigating Officer appointed under the Act to investigate the membership of both the Union.
While the investigation was in progress, both the Unions submitted draft proposals to the following effect: (1) The issue pertaining to recognition of any of the Unions be decided by secret ballot and the Investigating Officer be directed to conduct the same ballot; (2.) The union which would have the majority of the votes would be treated as recognised trade union and the one which fails to get the majority would not raise any technicality or objec tion and (3) The union which fails to secure majority in the ballot would raise no objection for the period of three years to the union thus declared as the recognised union.
The Industrial Court directed the Investigating Officer to hold a secret ballot in the premises of the Company and the employees who were entitled to vote in the ballot were those who were on the rolls of the Company on July 1, 1985.
A secret ballot was held and the appellant Union secured 798 votes whereas the first respondent Union secured 780 votes.
The first respondent Union submitted objections contend ing that he cut off date of July 1, 1985 was not correct as the employees who were in employment of the Company and whose services were intermitently interrupted were not given an opportunity to exercise their votes.
179 The Industrial Court disposing of the aforesaid objection, held that since there was an agreement between the two unions, the procedure adopted to grant recognition to the union under the Act was a valid one, and granted the request of the appellant Union for cancellation of the recognition of the respondent Union under section 13(1)(VII) of the Act, and as a consequence of the recognition, granted recognition to the appellant Union in place of the first respondent Union under section 14 of the Act, and granted the necessary certificate of recognition.
Writ petitions were filed in the High Court under Arti cle 227 of the Constitution by two workers of the first respondent Union, contesting the aforesaid order of the Industrial Court, and they were allowed.
The High Court relying on its earlier decision in Maharashtra General Kamgar Union, Bombay vs Mazdoor Congress, Bombay & Ors., , set aside the order of the Industrial Court.
In the appeals to this Court on the question: whether the procedure adopted by the Industrial Court for granting recognition to the appellant Union was illegal.
Dismissing the appeals, this Court, HELD: 1.
The order of the Industrial Court granting recognition under the Act to the appellant Union by follow ing the method of ballot is prima facie, illegal being in breach of the provisions of the Act.
The High Court had, therefore rightly interfered with the said order.
[192B] Maharashtra General Kamgar Union, Bombay vs Mazdoor Congress, Bombay & Ors., , approved.
Section 14 lays down the procedure for recognition of the other union when there is already a recognised union in the field.
The conditions precedent to making such applica tion are; (i) a period of at least two years must have elapsed since the day of the registration of the recognised union; (ii) a period of one year should have elapsed since the date of disposal of the previous application for recog nition of such union; (iii) the union must have satisfied the conditions necessary for recognition specified under section 11; and in addition; (iv) its membership during the whole of the period of six calendar months immediately preceding the calendar month in which such application is made must have been larger than the membership of the recog nised union; (v) the provisions of Section 12 (which also include the conditions specified in Section 19), are satis fied.
If, however, the Court comes to the conclu 180 sion that any of the other unions has the largest membership of employees and such other union has also notified to the Court its claim to be registered as a recognised union and that such other union also satisfies the necessary condi tions, the Court will grant recognition to the other union.
[188B, C G] 3.
The recognition or derecognition of a union under the Act is not a matter which concerns only the contesting unions or its members.
It is a matter of utmost importance to the interests of all the workmen in the undertaking concerned and to the industry and society in general.
No union is entitled to be registered as a 'recognised union under the Act merely because it satisfies the membership qualification.
[1901D E] 4.
The Industrial Court is forbidden from granting recognition to a union whatever its membership, if the Court is satisfied that it is disqualified for reasons mentioned under section 12(5) and 12(6) or does not satisfy the condi tions mentioned in section 19.
[190E] In the instant case what was done by the Industrial Court, was to permit the registration of the union as a recognised one by a method which was clearly alien to the Act.
The Court in effect allowed the parties to circumvent the provisions of the Act and by adopting a simplistic method directed that whoever command a majority of votes of the employees voting on a particular day, would be entitled to the status of the recognised union.
The Court thus ignored in particular the mandatory provisions of Sections 10, 11, 12, 14 and 19 of the Act.
Not only that, the Court also failed to find out whether any of those workers who voted were members of any of the two unions at any time including on the day of the ballot.
What had to be found out was the exclusive membership of the contesting unions con tinuously over the specified period the overlapping member ship being ignored, [191D G] 5.
The consent of the parties to follow a procedure which is against the mandatory provisions of the Act, cannot cure the illegality.
To permit the parties by consent to substitute a procedure of their own is in effect to permit them to substitute the provisions of the Act.
[191G, H; 192A] [Matter remanded to Industrial Court for disposal ac cording to law.] [192B] 181