# [1977] 2 S.C.R. 782

- **Citation:** [1977] 2 S.C.R. 782
- **Court:** Supreme Court of India
- **Decided:** 1977-01-27
- **Case number:** Civil Appeal Nos. 1173 to c Tl 75 of 1976
- **Bench:** P. K. Goswami, P. N. Shinghal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1977-2-s-c-r-782-7108
- **Pages:** 8

## Headnote

Maharashtra Educational Se1Tice Class II-Amalgamation of History and'
Political Science lecturers-Proof of amalgamatio11--Grant of optio11 to teacher
to join History or Political Science se1Ticc.
After the reorganisation of the States a separate seniority Est was prepared
by the State of Bombay for History and Political Science teachers. On 20.8.1963.
the Director of Education issued a letter conveying the decision oi Government
to amalgamate the list of lecturers in History and Lecturers in Political Science
and to prepare a single seniority list for both the subjects. It was
express!}
stc.ted in the letter that it was issued in pursuance of the decision of the State
Government.
Thereafter a revised seniority list was prepared.
One Nanekar
filed a writ petition in the High Court challenging the said order on the ground
that when two separate seniority lists had been prepared for the departments
of History & Politicai Science in accordance with the earlier Government Order
of 1960, the new list was invalid.
The High Court took the view that
the
existence of the Gocernment resolution dated 27.2.1963, which was said to be
the authority for the issue of Di rcctor·s letter dated 20.8.1963, had not been
proved. It therefore held that there was no such resolution or order requiring
the preparation of n combined seniority list.
It decided that the earlier order
of 1960 requiring the preparation of separate list of History and Political Science
continued to be operati,·e. It however dismissed the writ petition filed by Nanekar on the ground that he could not claim to be the seniormost person in his
department.
In the present writ petition filed by B. K. Joshi and P. S. Kane
the High Court followed its decision in Nanekar's case and held that there was
JH' order or decisiot1 dated 27.2.1963 so that the action of amalgamating
the
list of History and Political Science departments was invalid.
A resolution was
taken on 15.1.1970 in which it was mentioned that the earlier decision to amalgamate the two categories w~s given UP' on account of the difficulties which were
experienced and an option was given by the 1970 resolution in order to obviate
those difficulties.
That resolution was challenged in the present proceedings.
The High Court examined the effect of the Government . Resolution dated
15.1.1970 and held that in the absence of the earlier resolution dated 27.2.1963
the Director of Education was not competent to combine or amalgamate the
seniority lists of History and Political Science Departments.
lt assumed that
legally there was no amalgamation at aU and any action taken on the basis of
the amalgamation would also consequently have to fall on that ground.
The
High Court held that the option given by the 1970 resolution had the effect of
perpetuating the effect of the working of the invalid list and amounted to viollttion of ATt. 16 of the Constitution.
The High Court held that in Nanekar"s
case no attempt was made to produce the resolution of 27.2.1963.
Allowing the appeals.
Held: 1 : The High Court erred in observing that the resolution of 27.2.1963
did not exist.
The High Court lost sight of the intrinsic evidence which
was available on the record to prove beyond doubt that Government had passed
the resolution on 27.2.1963 to amalgamate the two lists.
In the 1970 resoiution, the Government itself reiterated the act that a decision was
t~ken by
Government in the year 1963 to amalgamate the lists of Lecturers in Hi.>tory
and the Lecturers in Political Science into one common list.
The reason for
taking that decision to amalgamate the two .lists was also stated in that re.solution.
in fact the 1970 resolution made a mention of the difficulties
experienced in
working· the 1963 resolution and that was why it was decided to revert to the
decision to split up the combined seniority list which formed the l:>asis of prom10tio11 of some of the teachers.
As the genuineness of the resolution· of 1970 was
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MAHARASHTRA V. B. K. JOSHI

## Text

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STATE OF MAHARASHTRA
BHALCHANDRA KHANDERAO JOSHI & ANR.
January 27, 1977
(P. K. GOSWAMI AND P. N. SHINGHAL, JJ.]
Maharashtra Educational Se1Tice Class II-Amalgamation of History and'
Political Science lecturers-Proof of amalgamatio11--Grant of optio11 to teacher
to join History or Political Science se1Ticc.
After the reorganisation of the States a separate seniority Est was prepared
by the State of Bombay for History and Political Science teachers. On 20.8.1963.
the Director of Education issued a letter conveying the decision oi Government
to amalgamate the list of lecturers in History and Lecturers in Political Science
and to prepare a single seniority list for both the subjects. It was
express!}
stc.ted in the letter that it was issued in pursuance of the decision of the State
Government.
Thereafter a revised seniority list was prepared.
One Nanekar
filed a writ petition in the High Court challenging the said order on the ground
that when two separate seniority lists had been prepared for the departments
of History & Politicai Science in accordance with the earlier Government Order
of 1960, the new list was invalid.
The High Court took the view that
the
existence of the Gocernment resolution dated 27.2.1963, which was said to be
the authority for the issue of Di rcctor·s letter dated 20.8.1963, had not been
proved. It therefore held that there was no such resolution or order requiring
the preparation of n combined seniority list.
It decided that the earlier order
of 1960 requiring the preparation of separate list of History and Political Science
continued to be operati,·e. It however dismissed the writ petition filed by Nanekar on the ground that he could not claim to be the seniormost person in his
department.
In the present writ petition filed by B. K. Joshi and P. S. Kane
the High Court followed its decision in Nanekar's case and held that there was
JH' order or decisiot1 dated 27.2.1963 so that the action of amalgamating
the
list of History and Political Science departments was invalid.
A resolution was
taken on 15.1.1970 in which it was mentioned that the earlier decision to amalgamate the two categories w~s given UP' on account of the difficulties which were
experienced and an option was given by the 1970 resolution in order to obviate
those difficulties.
That resolution was challenged in the present proceedings.
The High Court examined the effect of the Government . Resolution dated
15.1.1970 and held that in the absence of the earlier resolution dated 27.2.1963
the Director of Education was not competent to combine or amalgamate the
seniority lists of History and Political Science Departments.
lt assumed that
legally there was no amalgamation at aU and any action taken on the basis of
the amalgamation would also consequently have to fall on that ground.
The
High Court held that the option given by the 1970 resolution had the effect of
perpetuating the effect of the working of the invalid list and amounted to viollttion of ATt. 16 of the Constitution.
The High Court held that in Nanekar"s
case no attempt was made to produce the resolution of 27.2.1963.
Allowing the appeals.
Held: 1 : The High Court erred in observing that the resolution of 27.2.1963
did not exist.
The High Court lost sight of the intrinsic evidence which
was available on the record to prove beyond doubt that Government had passed
the resolution on 27.2.1963 to amalgamate the two lists.
In the 1970 resoiution, the Government itself reiterated the act that a decision was
t~ken by
Government in the year 1963 to amalgamate the lists of Lecturers in Hi.>tory
and the Lecturers in Political Science into one common list.
The reason for
taking that decision to amalgamate the two .lists was also stated in that re.solution.
in fact the 1970 resolution made a mention of the difficulties
experienced in
working· the 1963 resolution and that was why it was decided to revert to the
decision to split up the combined seniority list which formed the l:>asis of prom10tio11 of some of the teachers.
As the genuineness of the resolution· of 1970 was
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MAHARASHTRA V. B. K. JOSHI (Shin.g/za[, J.)
783
mot challenged, the High Court ought to have taken notice of its intrinsic eviA
,dentiary value fo.r the purpose of proving the earlier resolution of 1963.
Jn
·fact the Director in his order specifically stated that the decision of the Government to amalgamate the two lists had to be brought' to the notice of all concerned.
The combined seniority list, was therefore fully authorised and there
was nothing wrong if it formed the basis of the subsequent promotions.
[787 G-H, 788 A-El
2. No exception could be taken to the decision of the Government to 2ive
option to the Lecture~s to e!ect either of the two departments.
The decision
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to amalgamate the semonty hsts of the two departments was not taken in consultation with them and if they were required to teach History or Political Science
and were promoted as Professor of History or Political Science on the · basis
.-0f combined seniority list for which they themselves were not responsible, it
would have been unfair if they had been required to serve in another dcpartn1ent by n uni1aterri1 executive fiat.
CIVIL APPELLATE JURISDICTION : Civil
Appeal Nos.
1173 to
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Tl 75 of 1976.
Appeals by Special Leave from the Judgment and Order doted the
11-3-1975 of the Bombay High Court (Nagpur Bench) in Special
'Civil Application No. 695 of 1971.
·
L. N. Sinha, Sol Genl., M. N. Shroff for the Appellants in 'CA
1173/76 for R. 3 in C.A. 1174/76 and 1175/76.
M: N. Phadke, V. M. Phadke and A.G. Ratnaparkhi for-RR.
and 2 in CA 1173/76 and CAs. 1174-75/76.
Nilofer (Mrs.) Bhagwat, S. C. Agrawal :mcl
V. .f.
Francis for
'.R .. 5 in C.A. 1174 and 1175/76.
Y. J. Francis for' RR. No. 6 in CA 11'75/76.
The Judgment of the Court was delivered by
SHTNGHAL J.-These appeals arise out o( a judgment of the Bombay High Court dated March 11, 1975, by which
the High Court
qu:1shed that part of Government resolution dated January 15, 1970,
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"which holds that the respondents Nos. 3 to 5 should not be comF
pell.eel to go back to their respective lists and which
gives a further
option to these three respondents to indicate whether tlley \vanted 'to
go back to the; department of History." The High Col1rt has further
held that the writ petitioners will be en.titled to be considered for promotion to Class I posts in the department of Political Science and the
seniority of respondents Nos.
3 to 5 "will be considered in the
.seniority list relating to the Department of History.".
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The controversy arose because 0if a writ petition filed by Bhalchandra Khanderao Joshi and Padniakar Siddhanath Kane.
Both of
.them were members of the Maharashtra Educational Service, Class II
(Collegiate Branch).
Bhalchandra Khanderao
Jo5hi was M.A.
in
Poiitical Science as well as in History.
He was appointed Lecturer in
Political Science in 1958, and
was
confirmed in
that capacity.
Padmal:ar Siddhanath Kane passed M.A.
Examination in
Political
Science in 1956 and was appointed Lecturer in Political Science
in
J 9.58.
He was also .confirmed on that post. Both of them filed a writ.
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SUPREME COURT REPORTS
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petition and challenged the resolution of the State Government,
iIT
the Education and Social Welfare Department, No. SCP No. 1064-D·
dated January 15, 1970, in pursuance of which respondents Smt. K. A.
Parekh, S. A. Bari and Smt. R. S. Dossal were promoted as Professors
of Political Science and were given the- option to opt for the History
or the Political Science department.
·
It may be mentioned that after the reorganisation of Stales, a.
combined seniority list was prepared on November
1,
1956, for
History and Political Science teachers.
In that list respondent No. 3
was shown at serial No. 3, and respondent No. 4 at serial No. 5. One ·
S. R. Nanekar was appoint~ as Lecturer in Political Science on June·
26. 1954.
Respondents Nos. 3 and 5 were M.A. in History. It was
not disputed in the High Court that Political Science was not a separate subject until 1956, in Bombay, because out of the eight papers
for post graduation in History, four were in Political Science.
Smt.
K. A. Parekh was M. A. in History and was recruited as Lecturer on
August 5, 1946. She however taught both History and Political·
Science upto 1963, when she was appointed officiating Professor of
Political Science on February 27. 1963. Dr. S. A. Bari was recruited'.
as Lecturer in History on October 1; 194 7.
He was thereafter promoted as Professor in that subject. Smt. M. G. Sonnal, who was M.A ..
in History, was appointed as Professor ol] Political Science. Smt. R. S.
Dossal was. recruited as Assistant Lecturer in
His~ory on August 5,
1946, and taught both History and Political Science upto 1956 ..
Thereafter she taught only Political Science,
and was promoted as
Professor in that subject in 1968. She was confirmed in that capacity
in 1972.
These facts are quite sufficient for purposes •)f the present
appeals.
The controversy relates to the question whether the
Director of
Education, Maharashtra State, had the authority to
issue the letter
dated August 20, 1963, which was addressed to all the Psh1cipals of
the Government Colleges. · It was stated by the Director in that letter
as follows,-
"It has been decided to amalgamate the two lists of lecturers in 'History' and 'Political Science' and to combine the
two lists under the common subject of 'History' and 'Political
Science'.
The revised seniority list so prepared is enclosed
herewith.
Please bring this decision of Gov"ernment to the
notice of the officers concerned."
The Director thus conveyed_ the decision to amalgamate the lists of
Lecturers in History and Political
Science and to prepare a single
seniority list fonboth the subjects. It was expressly stated in the letter
that it had been issued in pursuance of the decision of the State Government.
A revised seniority list was
therefore prepared in
which
respondent No. 3 was placed at serial No. 4, respondent No. 4 at serial
No. 5, and S. R. Nanekar at serial No. 7.
Nanekar challenged that
order in the High Court by Special Civil Application
No. 120 of
1964, mainly on the ground that when two separate seniority lists had
been prepared for the_ departments of History and
Political Scien..:e,
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MAHARASHTRA v. B. K. JOSHI (Shinghal, I.)
785
in accordance with the earlier Government Order of 1960,
the new
list was invalid.
The High Court however took the view that the
existence of the Government resolution
dated February
27, 1963,
which was said to be the authority for the issue of the Director's letter
dated August 20, 1963, had not been proved. It therefore held that
there. was no . su~h i:esolution o~ order requiring the _preparation of a
combmed semonty li~t. It decided that the earlier order of 1960,
requiring the preparation of separate lists for
History and Political
Science, continued to be operative and that as Nanekar could not claim
to be the seniormost person in his department, he had no cause of
::iction. It therefore dismissed the writ petition.
The High Court, in the present case, went by the decision in
Nanekar's case, and held that there was no order or decision dated
February 27, 1963, so that the actio_n of amalgamating the lists of
History and Political Science
departments was invalid.
The
High
Court made a reference to the Director's letter dated July 27, 1967
asking the Principals to forviard information in the prescribed proforma in respect of those Professors and Lecturers of History in their
respective colleges who were qualified to teach Political Science :md
had been recognised tJierefor. It also made a reference to the impugned resolution dated January 15, 1970 which reads as follows,-
"A decision was taken by Go~ermnent in the year 1963
to amalgamate the lists of Lecturers_ in 'History' and Le,cturers in 'Political Science' into one
common list of Lecturers in 'History and Political
Science'.
Accordingly, a
combined seniority list was prepared with reference to the
date of appointment of the officer concerned in the M.E.S.
Cliiss II, irrespective of the fact as to whether the Lecturers
are qualified in both the subjects of "History" and "Political Science" or in any one of the two.
The decision to
amalgamate the two lists into one ·was taken because' it was
noticed that some of the Lecturers in the senioritv list of the
subject "History" also possessed the qualifications
in the
subject "Political Science".
Similarly, some
of -the Lecturers in "Political Science" possessed the qualifications in
"Hi~tory". But they were not considered eligible for ~ip
pointment to a post of Professor in a subject other than the
subject under which their names were included in the
seniority list of their subject.
In
order to remove
this
anomaly, deCJision to amalgamate the seniority lists of Lecturers in "History" and "Political Science" and
to make
appointment to the posts of Professors on the basis of the
combined seniority list in the subjects of "History" and
"Political Science" was taken by Government.
However, in
view of the difficulties experienced with regard to the implementation of the deeision of Govemmellt referred to above,
Government on reconsideration decided in the year 1967
to revert to the old practice of having separate seniority lists
of Lecturers for the two subjects., 'History'
and 'Political
Science'.
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SUPREME COURT REPORTS
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. 2. Some of the teaching members of the Departm~nt of
History brought to the notice of Government that m the
western Maharashtra formerly there were no separate _posts
for Political Science as "Political Science" did not ey.1st as
distinct subject.
All teachers were designated as Lecturers/
Professors in History, but they used to
teach the subject
"Political Science" also.
The question of giving option to
those Lecturers/Professors, who were qualified to teach both,
the subjects, viz., "History" and "Political Science" and recognised as such, to elect either of the two
subjects, was
under consideration of Government for
some
time past.
While reverting to the decision to
split up the •:on1bined
seniority list of "History and Political Science", Gm;ernment
considers that those who were promoted to the posts of professors on the basis of the combined seniority list should not
be compelled to go back to their respective lists.
Government bas now decided that an option should be given to
those Lecturers/Professors of the Old Bombay State, who
were recruited as Lecturers/Professors of Historv but have
been recognised as teachers of Political Science' and also
those who have been promoted to the posts of Professors in
M.E.S. C. II (Collegiate Branch)
on the basis
of the
combined seniority list, to elect either of the two
Departments, viz. 'History' or
'Political Science'.
Accordin~ly
the concerned Lecturers/Professors were asked to exercise
their option. The following officers have opteu for their being treated as belonging to
the
Department of
Political
Science:-
( i) Smt. K. A. Parekh, Officiating Professor of Political
Science, 1. Y. College, Jogeshwari.
(ii) Shri S. A. Bari, Officiating Professor
of
History,
Government Arts and Science College, Aurangabad.
(iii) Smt. R. S. Dossal, Officiating Professor of Political
Science, Elphistone College, Bombay.
The option exercised by these officers have been accepted
by _qovern~ent and their
seniority in the Department of
Political Science should be as shown in the accompanying
statement."
(Emphasis added).
.
It therefore gave option· to respondents Nos. 3 to 5 to go back to the
department of History or not, and stated further that the option had
been accepted and their seniority finalised in the
Political Science
department. It is this resolution of the Government
dated January
15, 19~0 whlc? has been
challenged in the present
petition.
The
reason 1s that 1f respondents Nos. 3 to 5
had not been
given the
option to continue in the Political Science department. the- petitioners
would have been promoted to a Class I Post.
Thev have stated that
they _would then not have been deprived of that chance in viobtion
of article 16 of the Constitution.
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MAF!ARASHTRA v . .II. K. JOSHI (Shins:hal, /.)
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Respondents Nos. 4 and 5 did not enter app,~arnnce in the
High
Court, but it was urged on behalf of respondent No. 3 that in view of
the curriculam for the Master's degree in History, upto 1956, a person
-obtaining the Master's degree in History w_as equally '.qualified to teach
Political Science. It was also urged that the respondent taught Politi-
.cal Science and had been recognised by the University as a teacher of
Political Science. The High Court examined the effect of the Government resolution dated January 15, 1970, and held that in the absence
of the earlier resolution dated February 27, 1963, the Director of
Education was not competent to combine or amalgamate the &eniority
lists of the History and Political Science
departments. lt assumed
that "legally there was no amalgamation at all and any action taken
.on the basis of such amalgamation would also consequently have to
fall on the ground:" In that view of the matter, the High Court held
_that promotions were not permissible on the basis
of the combined
list. It accordingly held tfiat the Government n::solution dated Jnnu-
:ary 15, 1970 proceeded on a "misapprehension" that the icspondent>.
had peen promoted as Professors on the basis of the
combined
:seniority list, which was itself invalid.
The High Court 11eld that
there was "no valid reason why persons who were qualified in
the
Department of Political Science itself could be prevented from having
their names considered for the post of Professor in Class I." That led
the High Court to hold-further' that the option which was given by the
resolution dated January 15, 1970 had the effect or perpetuating the
effect of the working of the invalid list, and amounted to violation of
article 16 of the Constitution.
This is why the State of Jvlaharashtra,
Smt. K. A. Parekh and Smt. R. S. Dossal have come up in appeal by
special leave to this Couti.
The controversy therefore is whether the State government passed
the aforesaid resolution dated February 27, 1963, to amalgamate the
lists of Lecturers in History and Political
Science, as stated in
the
Director's aforesaid letter dated August 20, 1963, or whether there
was no such resolution and the· Director's order was unauthorised ?
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The High Court has taken the view that as no attempt was made to
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produce the resolution dated February 27, 1963 in Nanekar's case,
there was no such resolutiuu ~t all.
On that basis, it held that the
Director had no authority to take the
decision to
amalgamate the
lists.
We find however that in taking that view the High -Court lost sight
of the intrinsic evidence which was available on the record, to prove
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beyond doubt that Governmen~ had passed the aforesaid' resolution
dated February 27, 1963, to amalgamate the two lists.
We have extracted the Government resolution dated January 15, 1970 and the
underlined portions thereof clearly show that the Government
itself
reiterated the fact that "a decision _was taken by Government in the
year 1963 to amalgamate the lists of Lectur.;;rs in
"History" m:d
Lect'urers in "Political Science" into one common list oE Lecturers m
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"History and Political Science". " It has further been stated: in th<it
resolution of the Government that "accordingly, a combined seniority
list was prepared with reference to the date of appointment of the
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oflicer concerned in the M.E.S. Class II, irrespective of the fact as to
whether the Lecturers are qualified in both the subjects of 'History'
'.ind 'Political Science' or in any one of the two''. The reason for takmg that "decision, to amalgamate the two lists" has also been stated in
the resolution. Then it has been stated that in "view of the difficulties
experienced with regard to the implementation of the decision of
Government referred to above," the Government "on reconsideration'•
had decided to nevert to the old practice of having separate seniority
lists of Lectnrers of History and Political Science. It has also been
stated that the decision had been taken for "reverting to the decision
to i>plit up" the combined seniority list which formed the basis of promotion of some of the teachers. It would thus appear that the resolution dated January 15, 1970, repeatedly refers to the earlier decision
of the State Government of 1963 for amalgamating the lists, states the
reason for the amalgamation, makes a mention of the ditticulties experienced in the implementation of that decision, and gives the reasons
for the government's decision to revert to the old practice of having
separate seniority lists.
As it was not challenged in the High Court
that
the
resolution dated January 15, 1970 was genuine, the High
Court should have taken notice of its intrinsic evidentiary value for
the purpose of proving the earlier resolution dated February 2 7, 1963.
If it had done so, it would have inevitably reached the conclusion that
the Governm.ent had really decided in 1963 to amalgamate the lists,
and that the Director had rightly conveyed that decision in his order
dated August 20, 1963, and it was therefore an authorised communication.
In fac~ the Director specifically stated in that order that the
"decision of Government" to amalgamate the two lists had to be
brought to the notice of all concerned.
The combined seniority list
was therefore fully authorised, and there was nothing wrong if it
formed the basis of the promotions which were given to the persons
mentioned above.
We have no doubt that the High Court did not
read the relevant document carefully and that was why it arrived at a
contrary conclusion.
The resolution dated January 15, 1970 shows that as the (iovernment had decided to split up the seniority list for the lfopartment of
History and Political Science, it thought it desirable to give an "option"
to those Lecturers/Professors of the old Bomb'.ly State, who were recruited as Lecturers/Professors of History, but were recognised by the
University as teachers of Political Science, to dect for either of the
two departmc'lts. No exception can be taken to tl1at ck:ision to give
the option to the Lecturers/Professors concerned for, in the absence
o.f such an option, they would have been deprived of the opportunity
of expressing their desire to serve in the one or the other department
on the basis cf their experience and prospects of promotion.
It was
to be appreciated that the decision to amalgamate the seniority lists
of the two departments was not taken in consultation with them, and
if they were required fo teach History, or Political Science, and were
promoted as Professors of History or Political St:icnce, on the lJasis
of a combined seniority list for which they themselves \were not responsible, it would have been unfair if they had been required to serv,e
in :mother department by a unilateral executive fiat.
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MAHARASHTRA v. B. K. JOSHI (Shinghal, J.)
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It may' be mentioned that Mr. Phadke tried to argue that even if
the resolution dated January'. 15, 1970 were held to be valid, it would
not be permissible for the teachers concerned to take advantage of it
because they did not fulfill its requirements.
We do not find
any
merit in this argument. As has been stated, tho~e tea.chers were promoted to posts of Pro.fessors on the basis of the combined list, they
were recognised as such teachers by the University, and were recruited
initially as Lecturers in History. They were therefore entitled to take
the benefit of the resolution dated January 15, 1970, as there is nothing wrong with it.
We have no doubt that in the facts and circumstances mentioned above, there could be no justification for the view •
taken by the High Court that there was violation of article 16 of the
Constitution.
The appeals are allowed, the impugned judgrnenL of the High
Ccurt dated March 11, 1975 is· set aside and the writ petition is dismissed.
The State _of Maharashtra will pay the· costs of respondents
Nos. l and 2 (Bhalchandra K. Joshi and Padm~kar Sidharath R:rn)
in Special Leave Petition No. 915 of 1976, as directcJ by this Court
on October 8, 1976.
P.H.P.
A p[Jeals allowed ..
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