# G.K. DUDANI & ORS. ETC v. S.D. SHARMA & ORS

- **Citation:** [1986] 2 S.C.R. 250
- **Court:** Supreme Court of India
- **Decided:** 1986-04-06
- **Case number:** Civil Appeal No. 2359 of 1980
- **Bench:** R.S. Pathak, A.P. Sen An~ D.P. Madon
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/g-k-dudani-ors-etc-v-s-d-sharma-ors-9390
- **Pages:** 28

## Headnote

Bombay Civil Service Rules, 1959, Rule 9 -
'Cadre' -
. ~
Definition of -
Temporary and permanent post -
Difference
between Temporary post - Whether can be held in substantive
capacity • .
Bombay
Reorganisation Act,
1960, ss. 80 and
82
-
lnter-se seniority between direct recruits/promotees to the
cadre of Deputy Collector - Gujarat Civil Service Class I and •
Cluss 11.
+
D
Code of Civil Procedure, 1976, s.11 - Principle of resE
F
G
judicata - Whether applicable to writ petitions under Article
226.
The dispute in these appeals relates to the inter se
seniority between the direct-recruits and promotees-u;-the
cadre of Deputy Collectors formerly designated as 'Bombay
Civil Service Executive Branch : Deputy Collectors (Upper
Division)' and now designated as "Gujara~ Civil Service Class
I and Class II". In the predecessor Province of Bombay the
source of recruitment to the posts of Deputy Collectors used
~j
to be Mamlatdars who were promoted as Deputy Collectors. In
1939, direct recruitment policy was also introduced for this
post, but during the years 1950 to 1959 the scheme of direct
recruitment
to
the
cadre
of
Deputy
Coll~ctors
was
discontinued. However, the Bombay Government by its Resolution
dated 30.7.59 again revived the scheme of direct recruitment
i ..
and fixed the ratio of appointment by the direct recruits and
the promotees as 50:50 as far as practicable.
•
On 1. 5.1960 the Bombay State was bifurcated into Gujarat . Y
and Maharashtra. During the period 1960-62 no direct-recruits
were appointed to the posts of Deputy Collectors due to
administrative difficulties and 61 Hamlatdars were promoted to
H
those posts. However, since 1963 onwards, the direct-recruits
G.K. DUDANI v. S.D. SHARMA
251
A
,+.also came to be appointed. The Government of Qijarat issued on
Dec. 12, 1971 a seniority list as on Jan. 1, 1971. The list of
the prOlllOtees was prepared on the basis of their continuous
length of service and the list of the direct-recruits was
prepared on the basis of the dates of their respective
appointments. A combined seniority list showing
s~niority
inter se between the promotees and the direct-recruits was
also p;;pared. The direct-recruits challenged the aforesaid
B
-"ir seniority list before the High Court and the matter ultimately
came up before the Supreme
Court in N.K. Chauhan and Ora. v.
State of Qijarat and Ora., (1977) 1 S,C,R, 1037, The Supreme
Court,
after
discussing
the
case
law,
sumned
up
its
conclusions and gave the requisite directions for reframi.ng
c
} inter !!!_ seniority as under :
~.~
a. The quota syste. does not
necessitate the
adopticm of the rotaticmal · rule in practical
applicaticm.
Many ways of working out
'quota'
prescription can be devised of which rota is
certainly one.
b. While laying down a quota when filling up
vacancies in a cadre fa. more than cme source, it
is open to Govenmmt, subject to tests under Art.
D
16 to choose 'a year' or other period or the
E
vacancy by vacancy basis to work out the quota
llllDllg the sources. But once the court is satisfied,
examining
for
constitutionality
the
method
proposed,
that
there
is
no
invalidity,
administrative technology may have free play in
choosing one or other of the familiar processes of
F
implementing the quota rule.
c. Seniority, nomall.y is -ured by length of
CCHltfD!l(JQ8, officiating service -
The actual is
easily accepted as the legal. This does not
preclude a different prescription, constitutionally
G
tests being satisfied.
do A periodisation is needed in the case to settle
rightly . the relative claims of promotees and
direct recruits.- 1960-62 form period A and 1962
omards
form
period
B.
Promteea
regu!Uly
H
252
A
B
SUPREME COURT REPORTS
[1986] 2 s.c.R.
appointed during period A in eveBB of their quota, +-
for want of direct recruita (reasonably sought but
not secured and because tarrying longer would
injure the administration) can clafa their whole
length of service for seniority even against direct
recruits wbo may turn up in succeeding

## Text

_Characters 0–39,991 of 60,094. This is a partial read: ask again with offset=39991 for what follows._

A
B
c
250
G.K. DUDANI & ORS. ETC.
v.
S.D. SHARMA & ORS.
APRIL 6, 1986
[R.S. PATHAK, A.P. SEN AN~ D.P. MADON, JJ.]
Bombay Civil Service Rules, 1959, Rule 9 -
'Cadre' -
. ~
Definition of -
Temporary and permanent post -
Difference
between Temporary post - Whether can be held in substantive
capacity • .
Bombay
Reorganisation Act,
1960, ss. 80 and
82
-
lnter-se seniority between direct recruits/promotees to the
cadre of Deputy Collector - Gujarat Civil Service Class I and •
Cluss 11.
+
D
Code of Civil Procedure, 1976, s.11 - Principle of resE
F
G
judicata - Whether applicable to writ petitions under Article
226.
The dispute in these appeals relates to the inter se
seniority between the direct-recruits and promotees-u;-the
cadre of Deputy Collectors formerly designated as 'Bombay
Civil Service Executive Branch : Deputy Collectors (Upper
Division)' and now designated as "Gujara~ Civil Service Class
I and Class II". In the predecessor Province of Bombay the
source of recruitment to the posts of Deputy Collectors used
~j
to be Mamlatdars who were promoted as Deputy Collectors. In
1939, direct recruitment policy was also introduced for this
post, but during the years 1950 to 1959 the scheme of direct
recruitment
to
the
cadre
of
Deputy
Coll~ctors
was
discontinued. However, the Bombay Government by its Resolution
dated 30.7.59 again revived the scheme of direct recruitment
i ..
and fixed the ratio of appointment by the direct recruits and
the promotees as 50:50 as far as practicable.
•
On 1. 5.1960 the Bombay State was bifurcated into Gujarat . Y
and Maharashtra. During the period 1960-62 no direct-recruits
were appointed to the posts of Deputy Collectors due to
administrative difficulties and 61 Hamlatdars were promoted to
H
those posts. However, since 1963 onwards, the direct-recruits
G.K. DUDANI v. S.D. SHARMA
251
A
,+.also came to be appointed. The Government of Qijarat issued on
Dec. 12, 1971 a seniority list as on Jan. 1, 1971. The list of
the prOlllOtees was prepared on the basis of their continuous
length of service and the list of the direct-recruits was
prepared on the basis of the dates of their respective
appointments. A combined seniority list showing
s~niority
inter se between the promotees and the direct-recruits was
also p;;pared. The direct-recruits challenged the aforesaid
B
-"ir seniority list before the High Court and the matter ultimately
came up before the Supreme
Court in N.K. Chauhan and Ora. v.
State of Qijarat and Ora., (1977) 1 S,C,R, 1037, The Supreme
Court,
after
discussing
the
case
law,
sumned
up
its
conclusions and gave the requisite directions for reframi.ng
c
} inter !!!_ seniority as under :
~.~
a. The quota syste. does not
necessitate the
adopticm of the rotaticmal · rule in practical
applicaticm.
Many ways of working out
'quota'
prescription can be devised of which rota is
certainly one.
b. While laying down a quota when filling up
vacancies in a cadre fa. more than cme source, it
is open to Govenmmt, subject to tests under Art.
D
16 to choose 'a year' or other period or the
E
vacancy by vacancy basis to work out the quota
llllDllg the sources. But once the court is satisfied,
examining
for
constitutionality
the
method
proposed,
that
there
is
no
invalidity,
administrative technology may have free play in
choosing one or other of the familiar processes of
F
implementing the quota rule.
c. Seniority, nomall.y is -ured by length of
CCHltfD!l(JQ8, officiating service -
The actual is
easily accepted as the legal. This does not
preclude a different prescription, constitutionally
G
tests being satisfied.
do A periodisation is needed in the case to settle
rightly . the relative claims of promotees and
direct recruits.- 1960-62 form period A and 1962
omards
form
period
B.
Promteea
regu!Uly
H
252
A
B
SUPREME COURT REPORTS
[1986] 2 s.c.R.
appointed during period A in eveBB of their quota, +-
for want of direct recruita (reasonably sought but
not secured and because tarrying longer would
injure the administration) can clafa their whole
length of service for seniority even against direct
recruits wbo may turn up in succeeding periods.
e. Prc.>tees who have been fitted into vacancies
beyond their quota during the period B - the year-.--
being regarded as the unit - must suffer survival
as invalid appointees acquiring new life when
vacancies in their quota fsll to be filled up. To
C
that extent they will step down, rather be pushed
down as against direct recruits who were later but {
regularly appointed within their quota."
1
~
The
Government
of
Gujarat
accordingly
prepared
a
seniority list pursuant to the directions given by the Supreme
D
Court in <bin•h!m's case. The direct recruits and the promotees
again filed writ petitions before the Gujarat High Court challenging the aforesaid seniority list. The main contention of
the direct recruits before the High Court waa that there were
only 30 substantive vacancies in the permanent strength of the
Deputy Collectors cadre and the balance of 31 vacancies was in :.-
E
the temporary posts created by the said Government or ex-cadre
posts and consequently the 31 promotees could not be deemed to
be regularly appointed as required by direction 'd' given in
,.._
<biniban's case. On the other hand, the promotees contended
that quota was not distributed on the basis of actual or uti-~
lised vacancies but only the filled up vacancies of the
F
officers who had continued to officiate till retirement or
death. Accepting the contention of the direct recruits, the ')
Division Bench of the High Court observed that the officers
promoted during the period
'A' to the posts of Deputy
Collectors fell in four categories,- namely,
G
(i) Promotees appointed to substantive vacancies in
the cadre of Deputy Collectors.
H
(ii) Promotees appointed to hold ex-cadre posts.
(iii) Promotees appointed to temporary posts -
cadre posts or ex-cadre posts.
G.K. DUDANI v. S.D. SHARMA
253
(iv) Promotees who were first placed on conditional
select list during period 'A' and were placed on
unconditional select list after their performance
was found satisfactory.
A
The High Court held: (a) that the promotees falling under
B
category No. (1) in excess of their quota would be senior to
-·y subsequently appointed direct recruits in accordance with
their length of continuous officiating setvice; (b) that so
far as the last · category is concerned, the Mamlatdars were
placed on a conditional select list and were appointed to hold
the posts of Deputy Collector and if their performance was
· .found satisfactory during the trial period, they would be
C
confirmed in those posts and that such confirmation had nothing to do with the length of continuous officiating service of
such Mamlatdars
and
that it was
the placement of the
Mamlatdars en the select list which was material. As regards
the second and the third ca~egories, the Di.vision Bench held
that the expression "promotees regularly appointed during the
D
period A in excess of their quota" had a di.rect reference to
promotees regularly appointed in substantive vacancies which
~ occurred in the cadre of Deputy Collector between 1960 and
1962 and that reading the principle· laid down in the direction
'D' in Qun•han's case in the light of the Government Resolution of 1959, promotees appointed in substantive vacancies
E
which occurred in the cadre of Deputy Collectors during the
period 'A' in excess of their quota could alone gain seniority
~ over the direct recruits in terms of the principle of the
length of continuous officiating . service and that those who
were promoted to the posts of Deputy Collectors
for being
f appointed to ex-cadre posts could not be said to be regularly
F
appointed because their appointments were not in substantive
vacancies in terms of the said Government Resolution and that
the seniority of those who were so promoted had to be
determined from the date on which they were appointed to fill
the sQbstantive vacancies in the cadre of Deputy Collectors
and, therefore, those who were promoted to the posts of Deputy
Collectors for being appointed to hold temporary posts could
not be said to have been "regularly appointed" within the
meaning of the decision in Qunduin's case.
!\].lowing the appeal of the State in full and that of the
G
proaoteei;.-appellants in part,
H
A
B
c
D
E
F
G
H
254
SUPREME COURT REPORTS
[1986] 2 s.c.R.
HELD : 1.1 The judgment of the Division Bench of the High
Court in so far as it held that "promotees appointed to
ex-cadre posts" and "promotees appointed to temporary posts,
cadre posts or ex-cadre posts" were not regularly appointed
during period A and, therefore, were not covered by direction
(d) in Oia•ihan's case, was clearly wrong and is hereby
reversed. (275 E-F]
+
1. 2 It was not open to the direct recruits to contend
before the High Court that promotees appointed to hold
ex-cadre posts and temporary posts, whether cadre posts or
ex-cadre posts, were not regularly appointed during period 'A'~
and the High Court after perusing Chat.tum 's case was in error ,
in permitting them to raise this contention. This contention
had been raised by the direct recruits in their earlier writ
petition, namely, Special Civil Application No. 1401 of 1972
and the learned Single Judge of the High Court had rejected
this contention and had held that the
appointments of· the
promotees between 196 l and 1963 were regular. The Di vision
Bench of the High Court also did not disturb this finding nor
was this finding upset by the Supreme Court in Cbatiben '•
case. (272 B-£]
).-
1.3 Although by reason of the Explanation which was
inserted in s. 141 of the Code of Civil Procedure by the Code
of Civil Procedure (Amendment) Act 1976, s. 11 of the Code
does not in terms apply to any proceeding under Art. 226 of
the Constitution, the principle of !!:!. judicata does apply to ~
all writ petitions under Art. 226. This point was, therefore,
barred by the principle of !!:!. judicata and should never have 'f
been allowed by the High Court to be reagitated. (272 F-H]
2. The interpretation placed by the Division Bench upon
the words "promotees regularly appointed" in direction (d) in
Chauban's case was wholly erroneous. Under the guise of
interpreting the judgment in that case, the Division Bench of
the High Court virtually sat in appeal over the judgment of
the Supreme Court and modified it. The High Court ought to r
have taken the words in that judgment in the sense in which
they were used and ought to have applied them to the facts
before it, instead of trying to put words in the mouth of the
Supreme Court.
The Division Bench ignored the fact that the
Supreme Court had categorically held that in the case before
it the appointments had ~8' rVilil£~•v llllf Ml fSSOr:l'P6' 1'{1U
G,K, DUDANI v. S.D. SHARMA
255
the rules to fill substantive vacancies. Further, copies of
the relevant Gazette notifications clearly bear out not only
this fact but also show that the appointments of these
promotees were regularly made. [273 A-C]
In the instant case, the record shows that during period
'A' there were thirty vacancies in permanent posts and
-·y thirty-one vacancies in temporary additional posts• These
thirty-one posts were created initially for a period of one
year but renewed from year to year from 1960 onwards and have
been in existence continuously since then. These temporary
additional posts were, therefore, not fortuitous posts created
for the purpose of special tasks but formed an integral part
of the regular cadre, and appointments to those posts were
made from the approved select list of Mamlatdars prepared in
consultation with the Gujarat Public Service Comnission.
[273 D-'F]
3.1 Rule 9(8) of the Bombay Civil Service Rules, 1959,
defines "cadre" as meaning the strength of a service or a part
of service sanctioned as
a separate unit. The service of
Deputy Collectors is admittedly a separate unit under the
~ Revenue Department. A cadre consists of permanent posts and
temporary posts added to the cadre from time to time according
to the exigencies of the service. The difference between
permanent and temporary posts is brought out by the definition
of these expressions given in Rule 9. Under Rule 9(43), a
'I- permanent post is a post carrying a definite rate of pay sanctioned without limit of time and under Rule 9(56) a temporary
post is a post carrying a definite rate of pay sanctioned for
) a limited time. Rule 71 sets out the manner of fixation of pay
of the officer appointed to a temporary post. Even officers
holding permanent posts are of ten deputed to hold an ex-cadre
post. It was, therefore, illlllllterial whether these promotees
after being appointed Deputy Collectors were deputed to hold
an ex-cadre post or not. [273 F-11; 274 A)
3. 2 The position that a temporary post can be held in a
substantive capacity is now
firmly established by
the.
decisions
of
the
Supreme
Court.
All
persona
holding
subst~tive posts or temporary posts in substantive capacity
are llellbers of the service. A person can be said to hold a
post, perllllllellt or te11porary, in a substantive capacity only
if hie appoJ,nt11e11t to that post is ~t fottuitoue or ad
A
B
c
D
E
F
G
H
A
256
SUPREME COURT REPORTS
[1986] 2 s.c.R.
llale"'-r Dass & Ors. etc. v.
etc •• [1981] l s.c.R. 449 and o.P.
India & Ors., [1984] 4 s.c.c. 450,
+
State of U.P. and Ors.
Sfngla and Aor. v. &ion of
relied upon.
Rwc:lumdra S!umkar Jleodhu and Ors. v. 1be State of
B
Maharashtra & Ors., [1974) 2 S.C.R. 216 and N.K.
llia•ihan and
On. v. State of Qijarat & On.• [1977] 1 S.C.R. 1037,
c
D
E
F
G
referred to.
y
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 2359 of
1980.
From the Judgment and Order dated 18/19th March, 1980 of ~
the Gujarat High Court in Spl. Application Civil No. 2199 of -
1978.
•
AND
Civil Appeal No. 1816 of 1980.
From the Judgment and Order dated 18/19th March, 1980 of
the Gujarat High Court in Spl. Civil Application No. 1407 of
1978.
>--
P.H. Parekh and Ms. Indu Malhotra for the Appellants in
C.A. No. 2359 of 1980.
G.A. Shah and R.N. Poddar for the Appellants in C.A. No. ~
1816/80 and for Respondent No.5 in C.A. 2359/80.
Rajiv Dutt for Respondent No. 3 in both the appeals.
}
S.K. Dholakia, P.C. Kapoor, B.S, Gupta and R.C. Bhatia
for Respondents 1, 2 and 4 in both the appeals.
G.A. Shah for the State of Gujarat.
The Judgment of the Court was delivered by
MADOll, J. On January 26, 1950, when the Constitution of
India came into force, under Article l read with the First
H
Schedule to the Constitution, India became a Union of States
G.K. DUDANI v. S.D. SHARMA [MADON,J,)
257
-4 consisting of nine Part A States, nine Part B States and ten
Part C States, Under Article 3, Parliament has the power oy
law to form a _new State by separation of territory from any
State or by uni ting two or more States or parts of States or
by uniting any territory to a part of any State; increase the
area of any State; diminish the area of any State; alter the
boundaries of any State; or alter the name of any State. By
•
~
reason of repeated reorganizations of States, the Union of
India today consists of twenty-two States and nine Union
territories and it is difficult to visualize when this process
of fragmentation of
India will end and the practice of
sacrificing the sense of oneness in being an Indian on the
alter of parochial and linguistic chauvinism will stop. These
reorganizations have resulted in benefit to some, detriment to
others and bewilderment to many.
Each reorganisation has
brought in its wake a host of problems mostly relating to
those in services of the States, many of them still unsolved.
•
We
are concerned in these Appeals only with the
reorganization effected by the Bombay Reorganization Act, 1960
(Act No. 11 of 1960), which divided the State of Bombay into
the State of Maharashtra and the State of Gujarat. At the
--1 coomencement of the Constitution, the territory of the State
of
Bombay
comprised
the
territories
which
before
the
coomencement
of
the Constitution were
comprised in the
Province of Bombay. Saurashtra was then a Part B State and
Kutch a Part C State. Under the States Reorganization Act,
1956 {Act No. 37 of 1956), certain territories of the State of
--._Bombay
were
transferred to other States, parts of the
territories of the State of other States were transferred to
the State of Bombay and the territories of the State of
'( Saurashtra and the State of Kutch were comprised in the new
State of Bombay which emerged as a result of this reorganization. Part X of this Act consisting of sections 114 to 118
made provisions with respect to All-India Service and other
services. Section 115
made provisions relating to other
services. Under it, allotment of personnel of the State
Services serving in a reorganized State as existing on the
~
date of the reorganization of States was to be made either to
a successor state or to the original State in the manner
provided therein.
Each Act providing for reorganization of States contains
similar provisions. lbus, a transfer of territories results in
A
B
c
D
E
F
G
H
A
B
c
D
E
F
G
H
258
SUPREME COURT REPORTS
[1986] 2 S.C.R.
a transfer of service personnel. Those who have been so ftransferred have found themselves higher or lower in seniority
in the same cadre than in their original State. The question
of corresponding posts and "the deemed date of appointment"
has been a knotty one and much administrative ingenuity has
been applied in unravelling the tangle created by political
expediency. Solutions to this question have resulted in giving
an advantage to some in promotional matters while the hopes of )'
promotion of others have foundered between the Scylla of
political expediency and the Charybdis of administrative
ingenuity.
Subsequent
reorganizations
involving
the same
States have led to these problems multiplying like Pelion
piled on Ossa. The second reorganization of the State of ~
Bombay by the Bombay Reorganization Act, 1960, has not proved ·
an except ion to this rule and the problems raised by it have
reached this Court but even the judgments of this court have
failed to provide a final solution as is illustrated by the
present Appeals.
As we are concerned in these Appeals with.services other
than All India Services,
we
need refer only to those
provisions of the Bombay Reorganization Act which concern
these services. Sub-sections (1) to (3) and (6) of Section 81 >-
of the said Act provides as follows :
81.
Provisions relating to other services.
(1) Every person who,
immediately before
the~
appointed day, is serving in connection with the
affairs of the State of Bombay shall, as from that
day,
provisionally
continue
to
serve
in )
connection with the affairs of the State of ·
Maharashtra, unless he is required, by general or
special order of the Central Government, to serve
provisionally in connection with the affairs of the
State of Gujarat.
(2) As soon as may be after the appointed day, the
Central Government shall, by general or special )-
order, determine the State to which every person
provisionally allotted to the State of Maharashtra
or Gujarat, shall be finally allotted for service
and the date with effect from which such allotment
G.K. DIJDANI v. S.D. SHARMA [MAOON,J,]
259
shall take effect or be deemed to have taken
A
effect.
(3) Every person who is finally allotted under the
provisions
of
sub-section (2) to the State of
Maharashtra or Gujarat shall, if he is not already
serving therein, be made available for serving in
that State from such date as may be agreed upon
between the two State Governments or, in default of
such agreement, as may be determined by the Central
Government.
x
x
x
x
( 6) Nothing in this section shall be deemed to
affect, after the appointed day, the operation of
the provisions of Chapter I of Part XIV of the
Constitution in relation to the determination of
B
c
the conditions of service of persons serving in
connection with the affairs of the State of
D
Maharashtra or Gujarat :
Provided that the conditions of service applicable
immediately before the appointed day to the case of
any person provisionally or finally allotted to the
State of Maharashtra or Gujarat under this section
E
shall not be varied to his disadvantage except with
the previous approval of the Central Government."
Section 82 of the said Act provides as follows
"82. Provisioos as to conUooance of officers in
F
same post.
Every person who, immediately before the appointed
day, is holding or discharging the duties of any
post or office in connection with the affairs of
the State of Bombay in any area which on that day
G
falls within the State of Maharashtra or Gujarat
shall c~ritinue to hold the same post or office in
that State and shall be deemed, as from that day,
to have been duly appointed to the post or office
by
the
Government
of,
or
other appropriate
authority in, that State :
H
A
B
c
D
E
F
G
H
260
SUPREME COURT REPORTS
[19861 2 s.c.R.
Provided that nothing in this section shall be·+
deemed to prevent a competent authority, after the
appointed day, from passing, in relation to such
person, any order affecting his continuance in such
post or office."
Under section 87, all laws which were in force in the
territories of the State of Bombay prior to the coming itito )#"
force of the said Act continue to apply both in the ·State of
Maharashtra and the State of Gujarat until otherwise provided
by a competent legislature or o1;her competent authority. The
term 'law' is defined in clause (d) of.section 2 as follows :
"(d)
'law'
includes
any
enactment,
ordinance,
regulation,
order,
bye-la111,
rule,
scheme,
notification or other instrument having illlD.ediately
before the appointed day, the force of law in the
whole or in any part of the State of Bombay".
Under clause (a? of section 2 the expression "appointed day"
means "the 1st day of May, 1960".
The dispute in these Appeals relates to the inter se >--'
seniority between the direct recruits and promotee~ the
cadre of Deputy
Collectors formerly designated as "Bombay
Civil Service Executive Branch : Deputy Collectors (Upper
Di vision)" and now designated as "Gujarat Civil Service Class
I and Class II". This cadre is recognized for recruitment to
the Indian Administrative Service by the relevant Recruitment·~'
Rules.
The State of Bombay prior to ·its division into the State 1
of Maharashtra and the State of Guj srat, for purposes of
revenue administration, was divided into divisions which >iere
separate units
for
promotional
prospects,
incidence
of
transfer, etc., of Deputy Collectors, In the predecessor
Province of Bombay, the source of recruitment to these posts
used to be Mamlatdars who were transferred to these posts by
promotion. In 1939 a different recruitment policy was evolved)'-
and suitable candidates were directly recruited. The creation
of two sources of appointment to the cadre of Deputy Collector
required a rule to be framed to determine the inter se
seniority between the promotees snd the direct recrultii:'
G. K. DUDANI v. S. D. SHARMA [MADON, J. ]
261
-f-Accordingly, the Government of Bombay, Political & Service
Department, issued a Resolution dated November 21, 1941. The
1941 Resolution provided as follows :
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"Government is pleased to direct that the following
principles should be observed in determining the
seniority of direct recruits and promoted officers
in the provincial services (except the Bombay
Services of Engineers, Class I)
(i) In the case of direct recruits appointed substantively on probation, the seniority should be
determined with reference to the date of their
appointment on probation.
(ii)
In
the
case
of
officers
promoted
to
substantive
vacancies, the seniority should be
determined with reference to the date of their
promotion to the substantive vacancies, provided
there has been no break in service prior to their
confirmation in those vacancies."
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Thereafter,
the
promotee
officers
through
their
Association made a representation to the Government that since
direct recruits were confirmed immediately on the expiration
of their probation and promotees were not so confirmed, it
would adversely affect their prospects of promotion. By its
reply dated January 11, 1949, the Government replied to the
't said Association as under :
"ConfiI'lllltion of direct recruits to the cadre
Collectors :
The officers appointed by direct recruitments and
those appointed by promotion are confirmed in
vacancies reserved for their respective classes.
If, therefore, a clear vacancy in the cadre of
Deputy Collectors reserved for a direct recruit
occurs earlier, it is natural that such a recruit
should be confirmed earlier. The seniority of such
a direct recruit vis-a-vis a promoted officer is
not, however, determined according to the date of
confirmation but according to the principles laid
down
in
Government
Resolution,
Political
and
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Services Department No.
4283/34 dated the 21st -+--
November 1941 i.e. with references to the date of
first appointment on probation in the case of the
direct recruit and of continuous officiation in the
case of
the
promoted
officers.
The
promoted
officers, therefore, can have no grievance in this
behalf."
From 1950 until 1959 the scheme of d•rect recruitment to yt~e r~i~~ oi uep~t) Cvlke~:ors was abandoned but it
tevived in 1959 by a Resolution dated July 30, 1959,
the Government
of Bombay,
Revenue
Department.
Resolution was as follows :
was again
issued by
The said
i-
"Government had for sometime under consideration...( •
the question of reviving the system of direct ·
recruitment to the cadre of Deputy Collectors. It
has now been decided that in the inter_est of
administration the revival of that system is quite
necessary. Government is accordingly pleased to
cancel
the
orders
contained
in
Government
Resolution No. 9313/45, dated 6th February, 1950
and those in Government Resolution No. 9313/45, >--
dated the 24th July 1951, in so far as they relate
to
the
recruitment
of
Bombay
Civil
Service
Executive Branch Deputy Collectors (Upper Division)
and to direct that as far as practicable, 50 per
cent of the substantive vacancies occurring in the
cadre with effect from 1st January, 1959 should be~
filled in by
nomination of candidates to be
selected in accordance with the rules appended i'-
herewith.
-
2. The Political and Services
requested to issue necessary
the
Bombay
Civil
Services
Recruitment Rules."
Department should be
correction slips to
Classification and
The rules appended to the said Resolution dated July 30, 1959,
were called the "Recruitment Rules for the Posts of Deputy
Collectors". Rule I is as follows :
G.K. DUDANI v. S.D. SHARMA [MAOON,J.]
263
" Appointment to the posts of Deputy Collectors
shall be made either by nomination or by promotion
of suitable Mamlatdars
Provided
that
the
ratio
nomination
and
by
promotion
practicable be 50:50 :
of
appointment
by
shall as far as
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Provided further that half the vacancies reserved
for appointment by promotion shall be filled by
directly recruited Mamlatdars who have put in at
least seven years service in the posts including
..
the period spent on probation."
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l.. Rule 2 provided for appointment by nomination. Such nomination
~ was to be made on the result of a competitive examination to
be held by the State Public Service Commission in accordance
with the rules in respect thereof appended as Annexure I to
the Recruitment Rules. The said Rule 2 also prescribed the
D
qualifications for candidates desiring to appear in the said
examination. Amongst the qualifications so prescribed was that
the candidates should "possess adequate knowledge of Marathi
--<
or Gujarati." Rules 3 and 4 of
the Recruitment Rules
were
as follows
"3. Candidates appointed by nomination shall be on
probation for a period of two years, the probation
being regulated according to the rules appended
hereto as Annexure II.
4. After appointment as Deputy Collector, whether
by
nomination
or
by
promotion,
the
selected
candidate
will
have
to
pass
the
prescribed
examinations in Hindi and in a regional language
according to the prescribed rules."
Following upon the reorganization of the States, Revenue
Divisions were abolished and by a Circular of the Government
of Bombay dated February 3,' 1960, the legal fiction of "deemed
dates on the co11111E!ncement of service" for the purpose of- inter
se seniority of personnel drawn from different pre-reorganiza~
tion States and from the Division was abolished. The Circular
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applied to all the services and consequently the cadre of +
Deputy Collectors stood converted into a State-wide cadre. On
the State of Gujarat coming into existence a similar notification was issued by the Goverrunent of Gujarat on May l, 1960.
Thereafter, the Goverrunent of Gujarat issued another circular
dated May 27, 1960. The said circular is as follows
"Doubts have arisen as respects the directions
given under Goverrunent Circular No. GSF-1060 dated ~
the lst May, 1960 .... To remove any doubt in that
behalf, therefore, Goverrunent is pleased to direct
that the following Explanation shall be and shall
be deemed always to have been added to the said
circular, namely -
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Explanation.
-
Nothing
herein shall apply to ~
appointments of officers, authorities or persons or
to the constitution of tribunals or other bodies
which may be made by Government on or after the 1st
May,
1960 and the conditions of service of the
officers, authorities or persons appointed or the
members of the Tribunals or bodies so constituted."
Until then the select list of Mamlatdars fit to be appointed
as Deput.Y Collector used to be prepared on the basis of
divisional seniority in their respective Divisions.
In
Rallchandra Sbankar Deodhar
and others v.
The State
of
Maharashtra and others, [1974] 2 s.c.R. 216 the second proviso
to Rule 1 of the Recruitment Rules was held by this Court to
be void as being violative of Article 16 of the Constitution.
In that case this Court further held that the procedure for
promotion based on divisional seniority was also violative of )'
Article 16
and that the State should readjust seniority
according to State-wide seniority.
During the period 1960 to 1962 no direct recruits were
appointed to the post of Deputy Collectors, but sixty-one
Mamlatdars were promoted to that post.
The reason why not
direct recruitments were made during this period was that on
--,.
October 31, 1961, the Goverrunent sent a requisition for twelve
October 31, 1961, the Goverrunent sent a requisition for twelve
posts of Deputy Collectors to the Gujarat Public Service
Commission but the Commission raised certain· queries with
regard to the qualification prescribed by clause (c) of Rule
G.K. DUDANI v. S.D. SHARMA [MAOON,J,]
265
-+ 2 of the Recruitment Rules that the candidate should possess
an adequate knowledge of Marathi or Gujarati".
The
reason
for this query was that on the reorganization of the State of
Bombay, the State of Gujarat which came into being consisted
of those areas of the State of Bombay which were predominantly
Gujarati-speaking
areas
while
the
State of
Maharashtra
consisted of the territories of the State of Bombay of which
the predominant language was Marathi and the City of Bombay of
f
which Marathi was not the predominant language.
Considerable
correspondence took place between the Coumission and
the
Government.
Ultimately, a competitive examination for the
posts of Deputy Collectors was held in July 1962.
The results
of this examination were declared in January 1963 and the
.f Connnission sent its recommendations in February 1963.
The
.. ·~Government thereupon issued orders for appointment of the
candidates so selected by the Public Service Coumission in May
1963,
Thus, in 1963 and later the direct recruits came to be
appointed.
The Government of Gujarat issued on December 12,
1971, a seniority list as on January 1, 1971. The list of the
promotees was prepared on the basis of their continuous length
of service and the list of the direct recruits was prepared on
the basis of the dates of their respective appointments.
A
-i_ combined seniority list showing seniority inter se between the
promotees and the direct recruits was also prepared.
It may
be mentioned that ever since 1941 in the Province of Bombay
and thereafter in the State of Bombay and subsequently in the
State of Gujarat the principle of continuous officiation had
been admittedly followed.
The direct recruits filed a writ
-fl>etition in the Gujarat High Court being Special Civil application No. 1401
of 1972 challenging the said seniority list •
. {The parties, apart from the State of Gujarat, namely, the
promotees and the direcc recruits, were
arraigned in a
representative capacity in the said writ petition.
The
grievance of the direct recruits was that the promotees who
were promoted during the period 1960 to 1963 were given
seniority over those directly recruited in 1963 and later. It
was their contention that as the appointments to the cadre of
Deputy Collectors were made on the basis of a quota alloca-
/'-'{tion, a system of rotation should also apply.
A learned
Single Judge of the Gujarat High Court by his judgment dated
November 30, 1973, dismissed the said writ petition holding
that Rule 1 of the Recruitment Rules required implementation
of the quota as far as it was practicable and, therefore, the
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promotions of Mamlatdars made between 1961 and 1963 were +
regular. The direct recruits thereupon filed a Letters Patent
Appeal being Letters Patent Appeal No. 113 of 1974.
In the
said Letters Patent Appeal the direct recruits contended that
the promotees had not been appointed in.substantive vacancies,
but were appointed in such vacancies only on the date on which
they were confirmed.
By its judgment dated November 12, 1975,
the Division Bench of the Gujarat High Court held that the
__
Government ought to have followed the roster method.
The Y
promotees thereupon approached this Court in appeal.
During
the pendency of the appeal, on January 1, 1976, the Government
prepared a seniority list on the basis of the judgment of the
Division Bench.
By its judgment delivered on November 1,
1976, and reported as N.L
Qatihan and others v. State of1_
Qijarat and others, [1977] 1 s.c.R. 1037 this Court partly
•
allowed the said appeal filed by the promotees.
In Chauban's Case the Court accepted the explanation
. given by the State of Gujarat for its inability to hold the
examination.
The Court sumarized the conclusions it had
reached as follows (at page 1053) :
"1. -
~ pr<iB>tions of mamlatdars made by Govenaent y_
bet1ill!en 1960 and 1962 are saved by the 'as far as
practicable' proviso and therefore valid. Here it
falls to be noticed that in 1966 regular rules have
been jramed for promotees and direct recruits
flowing into the pool of Deputy Collectors on the
same quota basis but with a basic difference. The -1"'
saving provision 'as far as practicable' has been
deleted in the 1966 rules. The consequence bears
upon seniority even if the year is treated as the. f.
unit for quota adjustment.
2. If any promotions have been made in excess of
the quota set apart for the -1atdars after rules
in 1966
liilere Jlllde, the direct recruits have a
legitimate right to c:laia that the appointees in
excess of the allocable ratio from smug -1.atdars r-- ~
will have to be pushed dallll to later years when
their promotions
can be regularised by being
absorbed in their lavfal quota for those years. To
simplify, by illustration, if 10 deputy collectors'
G.K. DUDANI v. S,D, SHARMA (MADON,J,)
267
substantive vacancies exist in 1967 but 8 promotees
were appointed and two direct recruits alone were
secured, there is a clear transgression of the 50 :
50 rule. The redundancy of 3 hands from among
promotees cannot claim to be regularly appointed on
a permanent basis. For the time being they occupy
the posts and the only official grade that can be
extended to them is to absorb them in the subsequent vacancies allocable to promo tees. This will
have to be worked out down the line wherever there
has been excessive representation of promotees in
the annual intake •••••
3. 1he quota rule does not, inevitably, invoke the
application of the rota rule. The impact of this
position is that if sufficient number of direct
recruits have not been forthcoming in the years
since 1960 to fill in the ratio due to them and
those deficient vacancies have been filled up by
promotees,
later direct recruits
cannot claim
'deemed' dates of appointment for seniority in
service with effect from the time, according to the
rota or turn, the direct recruits' vacancy arose.
Seniority will depend on the length of continuous
officiating service and cannot be upset by later
arrivals from the open market save to the extent to
which any excess promotees may have to be pushed
down as indicated earlier."
{Emphasis
supplied.)
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further conclusions it had reachedand gave the requisite
directions for reframing the inter se seniority list. These
conclusions and directions are ss follows (at pages 1057-58) :
"(a} 'l:be quota SJllbs does DOt neceaaitate the
adoption of the rotational rule .in practical
application. Many ways
of. working out
1 quota'
prescription can be devised of which rota is
certainly one.
(b} While laying down a quota when filliug up
vacancies In a cadre frca more than one ~. it
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is open to Government, subject to tests under Art. +
16, to choose ·•a year' or other period or the
vacancy by vacancy basis to work out the quota
among the sources. But once the Court is satisfied,
examining for constitutionality the method proposB
ed, that there is no invalidity, administrative
technology may have free play in choosing one or
othe1 of the familiar
processes of implementing ythe quota rule. We, as Judges, cannot strike down
the particular scheme because it is unpalatable to
forensic taste.
c
( c) Seniority, normally is measured by length of
continuous, officiating service -
the actual is -£--
easily accepted
as
the legal.
This
does
not ~ •
preclude a different prescription, constitutionally
tests being satisfied.
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(d) A periodisation is
needed in the case to
settle rightly the
relative claims of promotees
and direct recruits. 196()-62 forms period A and
1962 onwards foI'lllll period B.
Proontees regularly
appointed during period A in excess of their quota,
for want of direct recruits (reasonably sought but
not
secured and
because tarrying longer would
injure the administration) can claia their whole
length of service for seniority even against direct
recruits who may turn up in succeeding periods.
F
(e) Prc.>tees who have been fitted into vacancies J
beyond their quota during the period B -
the year ·
being regarded as the unit - must suffer survival
as invalid appointees acquiring new life when
vacancies in their quota fall to be filled up. To
that extent they will step down, rather be pushed
G
down as against direct recruits who were later but
regularly appointed within their quota."
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(Emphasis supplied.) r---'
Thereafter, on January 19,
1978,
the
Government
of
Gujarat prepared a seniority list pursuant to the directions
ll
given by this Court in Clauhan's Case. Thereupon, in March
G.K. DUDANI v. S.D. SHARMA
[MADON, J,]
269
·"""- 1978 the direct recruits filed a writ petition in the Gujarat
High Court being Special Civil Application No. 1407
of 1'178
challenging the said seniority list dated January 19, 1978.
This writ petition was also filed in a representative capacity
and the parties thereto are the same as in the earlier writ
petition, namely, Special Civil Application No. 1401 of 1972,
save that as N. K. Chauhan had retired, G. K. Dudani has been
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