Compilation Vol 3 Corrected (1-943).pmd - Goa Public Service ...

290
Further held:
If it is to be held that direct recruitment can also be permitted without consulting the Service
Commission (in case it is required to be consulted) there will, in our opinion, be total chaos in the
recruitment process and it will lead to backdoor recruitment at the whims and fancy of Government
such a blanket power of relaxation of recruitment rules cannot be implied in favour of the Government.
(AIR 1996 SC 2775).
Held:
Whether quota rule has broken down? – No
Rule 5(4) of the Recruitment Rules 1978 provides that in case suitable candidates are not available
for promotion, the posts shall be filled up by direct recruitment and vice-versa. Thus, there must be
evidence that suitable candidates were “not available” for direct recruitment. Such non-availability
cannot be inferred when, as a fact, not even a reference is made to the Commission to find out if upon
advertisement, anybody will respond. Thus there is no breaking down of the quota rule.
Whether adhoc/stop gap promotion of Assistant Engineers and Assistant Executive Engineers could
be made beyond six months and till regularization, by Government without consulting the Public Service
Commission?
Held:
Summarising the position, we therefore hold that the ad hoc /stop gap service of the promotees
cannot be treated as non-est merely because P.S.C was not consulted in respect of continuance of the
ad hoc / stop gap service beyond six months. Such service is capable of being regularized under Rule
23 of the J & K (CCA) Rules, 1956 and rectified with retrospective effect from the date of occurrence
of a clear vacancy in the promotion quota, subject to eligibility, fitness and other relevant factors.
There is no ‘rota’ rule applicable. The ‘quota’ rule has not broken down. Excess promotees occupying
direct recruitment posts have to be pushed down and adjusted in later vacancies within their quota
after due regularization. Such service outside promotee quota cannot count for seniority. Service of
promotees which is regularized with retrospective effect from date of vacancies within quota counts
for seniority. However, any part of such ad hoc / or stop gap or even regular service rendered while
occupying the direct recruitment quota cannot be counted. Seniority of promotees or transferees is to
be fixed as per quota and from date of commencement of probation/or regular appointment as stated
above. Seniority of direct recruit is from the date of substantive appointment. Seniority has to be
worked out between direct recruits or promotees for each year.
Whether the direct recruits can claim retrospective date of recruitment from the date on which the
direct recruitment was available, even though the direct recruit was not appointed by that date and
was appointed long thereafter? – No
Held:
Jammu & Kashmir PSC
Direct recruits cannot claim appointment from date of vacancy in quota before their selection.