# RAMCHANDRA SHANKAR DEODHAR & ORS v. THE STATE OF MAHARASHTRA & ORS

- **Citation:** [1974] 2 S.C.R. 216
- **Court:** Supreme Court of India
- **Decided:** 1974
- **Case number:** Writ Petition No. 299 of 1969
- **Bench:** A. N. Ray, D. G. Palekar, Y. V. Chandrachud, P. N. BHAGWATi, V. R. Krishna !Yer
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ramchandra-shankar-deodhar-ors-v-the-state-of-maharashtra-ors-6132
- **Pages:** 24

## Headnote

Co11stitu1ion of India, 1950, An.
32.-Laches, alternative
remedy
nnd
HCC£'SS!lf)' r-artt'es.
States .Rtor1:a11isatinn Act. t 956-Slale of Bombas_;_Rule.f for _ promolion
fro111 dh·isio11al cadre of Man1latdars to State
Cadre of Deputy Collectors·-
1\'01
1nad~ ri11 S1ate·wide basis-Vtilidit).
The petitioners ·were Tahsildars in the quondam state of Hyderabad. After
the new state of Bombay was constituted with territories drawn fron1 varicu,
existing States including Hyderabad, under the States Rcorp.nisatJon Act, 1956,
equation of posts and determination of inter se seniority was
done by
the
.,-\!located Government Servants' (Absorption, Seniority, Pay and Allowance)
Rules, 1957. Under these rules ( 1957-Rules) the Governn1ent of Bombav declared that lh.: posts of Mamlatdar in the former State of Bombay shall
be
Jcen1ed to be equivalent to the posts of Tahsildars from the former State of
Hyderabad, and the posts of Deputy Collector in the former State of 'Bombay
~hall be deemed to be equivalent to the posts of Deputy Collector allocated
from the forn1er State of Hyderabad. The recruitment to the posts of Deputy
Collector was provided for by Rules of 30th July, 1959, (1959-Rules) according to \\ihich v.-:cancies to the posts of Deputy Collector were to be filled from
three sources : 50% by nomination on the basis of the result of competitive
examination; 25% by directly re9ruited Mamlatdars who have put in at least ·7
yearci' service including the period spent on probation and the remaining 25%
bv Mamlatdars promoted from lhe lower ranks in Lhe revenue
departmc11ts.
The reservation. of 25% in favour of directly recruited Mamlatdars waci made
by the second proviso to rule (1) of the Rules.
On 7th April,
1961
the
Government laid ·down the principles for regulating the preparation and revision of select list of Mamlatdars/Tahsildars fit to b: appointed
as
Deputy
Collectors in posts to· be filled by promotion. The procedure provided that a
Review Con1n1ittee should in July-August each year review the claims of all
:\famh:ld<!rs for promotion to the posts of Deputy Collector and should draw
up a select liSt for each division of those who arc considered by the Committee as fit for promotion. When a vacancy arose in the oosts of Dep11tv
Coliec~or in a division the .Mamlatdar whose name was highest in the divic:ional select list was promoted as officiating Deputy Collector in the
var.ant
post.
Th;:: name of such Mamlatdars though. so promoted, continued in the
divi~ionnl select list until he was confirmed in the cadre of Deputy Collectors
or retired from service. There was a l)eriodical review of the working of the
officiating ckpnty coBectors and on such review the rank in the divisional select
J!c;t_ was adiu<.tcr.I so as to reflect the assessment of the relative merits of the
officiatin,g deputy collectors.
The promotions a<J officiating deputy collectors
were thus made for each division separately on the basis of its divisional select
list in which the rankin.2 changed periodically as a n:sult of sevicw and assel'l<>.-
ment.
Then. deemed dates of continuous officiation were given to the officiating dcputv collectors from each division with a view to ~nsure that their
inter
-~e ranking- in the divisional select list was not affected bv the fact that
nn C'lffi:ccr k"iwer in rank in the divisional select list miiz:ht have been officiating
:i" Deputy Collector for a longer period than another in higher tank. On the
basis of thie deemed dates of continuou~ officiation given to
the
Officiating
Deouty Collector in each division a combined statewise seniority list of cfficiatin_'! D<·puty Collectors was nrepared and
confirmation in
th~ cadre
of
Denul'.' Collectors were made in acc0rdance with the seniority in such comtiinE'd s!ritewi<.:e seniority list. This procedure did not have the warrant of any
leg:i~l:iliv~ rules or administrative''orders. It waci in accordance with this procedu~e 1hat the petitioners were promoted as officiating Dep

## Text

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216
RAMCHANDRA SHANKAR DEODHAR & ORS.
v.
THE STATE OF MAHARASHTRA & ORS.
November, 12, 1973
[A. N. RAY, CJ., D. G. PALEKAR, Y. V. CHANDRACHUD, P. N.
BHAGWATi AND V. R. KRISHNA !YER, JJ.]
Co11stitu1ion of India, 1950, An.
32.-Laches, alternative
remedy
nnd
HCC£'SS!lf)' r-artt'es.
States .Rtor1:a11isatinn Act. t 956-Slale of Bombas_;_Rule.f for _ promolion
fro111 dh·isio11al cadre of Man1latdars to State
Cadre of Deputy Collectors·-
1\'01
1nad~ ri11 S1ate·wide basis-Vtilidit).
The petitioners ·were Tahsildars in the quondam state of Hyderabad. After
the new state of Bombay was constituted with territories drawn fron1 varicu,
existing States including Hyderabad, under the States Rcorp.nisatJon Act, 1956,
equation of posts and determination of inter se seniority was
done by
the
.,-\!located Government Servants' (Absorption, Seniority, Pay and Allowance)
Rules, 1957. Under these rules ( 1957-Rules) the Governn1ent of Bombav declared that lh.: posts of Mamlatdar in the former State of Bombay shall
be
Jcen1ed to be equivalent to the posts of Tahsildars from the former State of
Hyderabad, and the posts of Deputy Collector in the former State of 'Bombay
~hall be deemed to be equivalent to the posts of Deputy Collector allocated
from the forn1er State of Hyderabad. The recruitment to the posts of Deputy
Collector was provided for by Rules of 30th July, 1959, (1959-Rules) according to \\ihich v.-:cancies to the posts of Deputy Collector were to be filled from
three sources : 50% by nomination on the basis of the result of competitive
examination; 25% by directly re9ruited Mamlatdars who have put in at least ·7
yearci' service including the period spent on probation and the remaining 25%
bv Mamlatdars promoted from lhe lower ranks in Lhe revenue
departmc11ts.
The reservation. of 25% in favour of directly recruited Mamlatdars waci made
by the second proviso to rule (1) of the Rules.
On 7th April,
1961
the
Government laid ·down the principles for regulating the preparation and revision of select list of Mamlatdars/Tahsildars fit to b: appointed
as
Deputy
Collectors in posts to· be filled by promotion. The procedure provided that a
Review Con1n1ittee should in July-August each year review the claims of all
:\famh:ld<!rs for promotion to the posts of Deputy Collector and should draw
up a select liSt for each division of those who arc considered by the Committee as fit for promotion. When a vacancy arose in the oosts of Dep11tv
Coliec~or in a division the .Mamlatdar whose name was highest in the divic:ional select list was promoted as officiating Deputy Collector in the
var.ant
post.
Th;:: name of such Mamlatdars though. so promoted, continued in the
divi~ionnl select list until he was confirmed in the cadre of Deputy Collectors
or retired from service. There was a l)eriodical review of the working of the
officiating ckpnty coBectors and on such review the rank in the divisional select
J!c;t_ was adiu<.tcr.I so as to reflect the assessment of the relative merits of the
officiatin,g deputy collectors.
The promotions a<J officiating deputy collectors
were thus made for each division separately on the basis of its divisional select
list in which the rankin.2 changed periodically as a n:sult of sevicw and assel'l<>.-
ment.
Then. deemed dates of continuous officiation were given to the officiating dcputv collectors from each division with a view to ~nsure that their
inter
-~e ranking- in the divisional select list was not affected bv the fact that
nn C'lffi:ccr k"iwer in rank in the divisional select list miiz:ht have been officiating
:i" Deputy Collector for a longer period than another in higher tank. On the
basis of thie deemed dates of continuou~ officiation given to
the
Officiating
Deouty Collector in each division a combined statewise seniority list of cfficiatin_'! D<·puty Collectors was nrepared and
confirmation in
th~ cadre
of
Denul'.' Collectors were made in acc0rdance with the seniority in such comtiinE'd s!ritewi<.:e seniority list. This procedure did not have the warrant of any
leg:i~l:iliv~ rules or administrative''orders. It waci in accordance with this procedu~e 1hat the petitioners were promoted as officiating Deputy Collectors but
A
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A
s~1me of the aIIocated .Afamlatdars/Tahsildars in other divisions l\t·ho were junior
to the peritioflers became officiating Deputy Collectors earlier than the petitioners and were consequently entitled to be confirmed in the cadre of Deputy
Collectors in preference to the petitioners.
The P.Ctitioners filed a writ petin
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tion in this Court, challenging the procedure for promotion,
\
IIELD: ·The second proviso to ruie (1) of the 1959-Rules is void as being
·violative of Art.
16 of the Constitution.
The procedure for promotion to
the cadre of Deputy Collectors followed by the State Governmenfis also invalid
on the ground that it denies -equality of opportunity of promotion and is therefore bit by Art 16 of the Constitution, and hence the Government resolution
dated 7th April 1961 must be quashed.
The State Government should readjust the promotions as officiating Deputy Collectors as also the confirmation
in the· cadre of Deputy Collectors and the readjustment ~hould be made with
.retrospective effect and the petitioners ·should be given the benefit of seniority,
pay and other allowances from the respective dates on which they would have
been promoted hact the promotions been made on the correct basis. f238E-Gl
.
( 1.) The petitioners were not guilty of any laches or delay in filing the
petition.
r226Fl
(a) l'J1e rule that the Court may not inquire into belated and stale claims
is n,Jt a rule of law," but a rule of practice based on exercise of sound judicial
discretion depending on the facts of each case. In the present case, in January
1961, the petitioners· were informed that the rules of recruitment to the posts
of Deputy Collector in the reorganised State of Bombay had· not yet been
unified, that the petitioners continued to be governed by the rules of the exHyden.bad State and that the 1959-Rules did not apply to. them. It was only
-\\hen the Bombay High. Court decided Kapoor's case on 23rd-
~farch 1968,
that the petitioners came to know that it was. the case of the State Govemment
\\-hich v:as accepted by the High Court. that the 1959-Rules were the Ul!ificj
rules of recruitment to the posts of Deputy Collector applicable throughout the
reorganised State of Born.bay .. The petitioners thereafter did not lose any time
in filing the present petition.
[226F-G...; 227A-CI
·
lb) h!o1eover, what is
challenged is the validity of the
orocednre for
maki·ng 'promotiofls to the posts of Deputy Collector and 'ince this· orocedure
is still being foU0\1.-'ed by the State Government it is desirable that its constitutionality should be adjudged when the question has come up before the Court.
f227C-DJ
·
'
.
(c) In the present case all promotiqns that have been made by State Gov-
. ernmt:nt are pH>Visional and the position has not been ~rystallisecl Even if the
petitions were a11owed and the reliefs claimed by the petitioner were granted.
to therii:, it would not result in the reversion of aily Deputy COllector or officiating Deputy Collector ·to the position of Mamlatdar/Tahsildar. The only
effect woul.d be merely to disturb their inter se seniority as officiating deputy
collectors or as deputy coUectorS. Hence there is no question of rights, which
have accrued to others by reason of the delay in filing the petition, .being
~islurbed. f227G-228BJ
·
(d) The claim of enforcement of the fundamental right or equal opportunity under Art_ 16 is itself a right guaranteed under Art., 32 and this Court,
i.vhich has been
assigiJ.~d the role of a .sentinel on· the qui vive for protection
of fundamental rights, cannot allow itself to be
persuaded to refuse
relief
!!ofelv on the ground of Jaches. delay or the like.
[228B-CJ
Tilockchand Aforichand v. H. B. Munshi, [1969] 2 S.C.R. 824, referred
(2) The petitioners could not be said to have any adequate "alternative
legal remedy.
[228F-OJ
(a) The petitioners could not have applied for revieW of the judgment of
the Bombay High Court in Kapoor's case. They were not persons directly or
immediately affected by the judgment _and it could not be said that they were
. necessary parties to the petition who should have been heard before the judg-·
111ent was iiven.
f228D-E]
.
. .
218
SUPREME COURT REPORTS
(1974) 2 S.C.R.
(b) The sub]ect matter of the present petition is, barring only one ques...
A
tion namely the validity _of the s1:cond proviso to rule (1) 01 the 1959-Rules,
. whollx di~erent from that of the petition in ~<JJ.'f.Oor's case [228E-F]
(c) .The remedy by way of review of a judgment giVen in another case in
"'hich the petitioners were not parties could hardly b.! said to be an adequate
alternative legal remedy available to the petitioners. [228F-Gj
.
(3) Those who are· already promoted according to the impugned
proce~
dure and whose position vis-a-vis_ the pe~itioner. would be likely to be affected
by the invalidation of such procedure are before the Court as parties to the
petition.
All those who are necessary parties are before the Court, and th~re
is. therefore no impediment in the way of the Court dealing with the matter.
)228Hf
(4) The inter se seniority of the Tahsildars/MamJatdars allocated from the
former State of Hyderabad etc., would .be governed by rr. 7, 8 _and 9 of the
1957-Ruies; and neither the Government resolution dated 21st November: 1941
as contended by the petitioners, nor the. government resolution -dated 29th July
1963 which superseded the 1941-Resolution, .'\\'ould
ha.-~ any
application.
[229C-EJ
.
(5) A right to be considered for promotion is a condition of service. but
mere chances. of promotion are not.
By making promotions to the posts of
Deputy Collector divisionwise and limiting such promotions to
50% of the
total number of vacancies in the posts of Deputy Collector as a result of the
1959-Rules, all that happened was to reduce the chances of promotion availR
c
able to the petitioners. A rule which merely affects the chances of promotion
D
cannot- be regarded as varying a condition of service.
Therefore, neither- tho
1959-Rules nor the procedure for making promotions to the po3ts of Deputy
Collector divisionwise varies the conditions of service of the p:titioners
to
their disadvantage, and hence could n<Jt be assailed on the ground that
the
previous approval of the Central Government as· required by the
proviso to
s. 115(7) 1Jf the States Reorganisation Act was not obtained.-
l230A.CJ
State of _A,fysore v. G. B. Purohit, C.A. No. 2281 of 1965: dated
25th
January 1967 followed.
E
(6) _The pCtitioners were not right in their contention
that
th.!
second
proviso to r. (1) of the 1959-Rules was a valid provision.
Both the directly
recruited ~famlatdars as well as the promoted A-famlatdars form one class.
They .are both known by the same designation.
They have the same scales of
pay and discharge the same functions.
The posts held by them
are interchangeable.
There is nothing to show that the two groups are
kept apart:
Both are· merged together in the same class.
It is not competent to the Government thereafter to discriminate between directly recruited A-famlatdars and
F
promoted Mamlatdars in the matter of further
promotio1--; to _the
posts ofDeputy Collector .. ,That ~would be violative. of. Art.
16 of the
Constitution.
Therefore, the second proviso to r. ( 1) of the 1959-Rules must b.! held to be · ·
bad. f230D·G'
Meryyn Coutindo v. Collector of Custoni.s. Bo111bav. rI966J 3 S.C.R. 600
c1.nd S. fl.I. Pandit v. The State of Gujarfl/, A.J.R. 19"i1 S.C. 252, fo1lowed.
(7)(a) The State Government in the _absence of legislative rules, has to
G
inake up· its mind on the question '\\·hether -to treat the cadre of ~famlatdars
as a State C(!dre or a divisional Cadre; and· it is competent to the State Government to take a decision in the exercise of its executiv_e power under Art.
162 of the Constitution.
The State Government accordingly decided. on 1st
November 1956, that \\'bile recruitment to the posts of ~famlatdars shoul_d be
''on all State basis'' the cadre of ~famlatdars should be according to the
divisions.
f231 Dl
B. N. NOgarajan v. Stale of Mysore, [1966]·3 S.C.R. 682"and Sant Ram v.
H
St."te of Raiasthan, [1968] I S.C.R. HI, followed.
(b) ft is true that arider the Bombay c·ivil
~ervices Classification and
Recruitment Rules the service of ~famJatdars is regarded as Provincial Ser\·ice
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R. S. DEODHAR V. MAHARASHTRA
219
.as .distinct from Subordinate Service.
B·ut that does 1101 necessarily mean that
it cannot be organised into divisional cadres. The only difference between Provincial Service and Subordinate Service reorganised in these Rules i'l in the mode
of recruitment.
Clearly from 1st November, 1956, the State Government proceeded on the basis that the cadre of Mamlatdars was a divisional cadre ,.nd
not a ;)tate Cadre. [231F-232B]
(8) But nothing turns μpon this fact, b~cause the procedure for promoting
from the divisional cadre of Mamlatdars to the State Cadre of Deputy Collectors
was not consistent with Art. 16.
[232C]
(a) The 1959-Rules provided that 50% of the vacancies in the cadre of
Deputy Collector should be filled by direct recrtiitment.
But since
the
cadre
of Deputy Collector was a State cadre, 50o/o of the vacancies to be tilled by
direct recruitment were determined on the basis of vacancies in the cadre for
the State as a whole and not for any particular division of the State.
But
in regard to promotion by which the other 50% of the \'acancies in the cadre
of Deputy Collectors Wf!S to be filled1 the State
adopted a
wholly different
procedure.
Though a common seniority list of aH the Mamlatdars in the
State. irrespective of the divisions to which they belonged, could be prepared
\Vithout any difficulty on the basis of the
1951-Rules
for
the
allocated
Mamlatdars/Tahsildars and for the subsequent appointees, on the principle vf
continuous officiation up to 29th July 1963 and ·ther1:aft~r according to 1hc
rule laid down in the Resolution of 29th July 1963, and a common statewise
list could also b! made of the ~famlatdars found fit for promotion as Deputy
Collectors, and promotion to the cadre of Deputy Collectors, could be made
on the basis of such. Statewise select list, the State Government L!td not follow
ibis method, and instead. made promotions to the cadre of Deputy Collectors,
which was a State cadre. an the. basis of divisiqna\ :;dcrt lists.
Where pro·
motion is made hv
selection on the basis
of
merit-cum-scn:ority,
every
~famlatdar should have equal opportunity with others for being considered
for promotion.
But the actual procedure followed limits his opportunity for
promotion to a \'acancy in his own division. This procedure amounts to denial
of equality of opportunity to the 1\lam\atdars, b~cause it is wholly unrelated
to· the objec! and purpose of promotion. which is to sec1,1re an efficient cadre
of Deputy Collectors and in fact negates it.
[232D·234F]
(b) It is true that confirmations in the cadre of Deputy C-ollectors are
n1ade on the basis of a combined seniority list of officiating Deputy Collectors
but that does not cure the infirmity in the mode of pron1otion.
[234F-G]
(c) The allotment of deemed dates of continuous officiation cannot h'!lp
retrieve those who have had no opportunity to be promoted as
officiating
Deputy Collectors, not on account of want of higher seniority or better 1nerit,
but purely on account of lack of adequate number of vacancies in the post
of Deputy Collector arising in their division.
The giving of deemed dates
of continuous officiation no doubt reflects the relative merits of the Mamiatdars
in each division taken as a separate unit, but it does not seek to adjust the
seniority of the approved 1\1an1latdars in all the divisions taken as a whole on
the basis of assessment of their relative merits. Jt does not, therefore, eliminate
the initial inequ:.:ility of lreatmcnt. [234G·235C]
(d} The decision in Ra111 Saran v. D./.G. of Police, [1964] 7 S.C.R. 228,
shows that if the Cadre of promotion is a divisional cadre, there was divisionw:se promotion on the basis of divisional select lists, but if it is a State Cadrt,
promotion has to be on Statewise basis, so that every officer in the Stute has
<.-;;i_ual opportunity of promotion to the State Cadre.
[237A-CJ
·(e) It is true that a Mamlatdar cannot be promoted to the cadre of Deputy
Collector unless he officiates as Deputy Collector. But it cannot for that
reason be contended that there i..c; an intermediate cadre oi offici<1ting Deputy Collectors between the cadre of Mam!atdars and the cadre of Deputy CoUectors from
which promotion is made to the cadre of Deputy Collectors. There is no lc;_gista1ive rule or executive order providing for the creatio·n of any such intermediate
cadre of officlaung Deputy Collectorc;.
The 1959-Rules provided that
the
appointment to 50% posts of the Deputy Collectors should be made by
promotion of suitable Mamlatdars, that is, promotion should be from the cadre
of Mamlatdars to the cadre of Deputy Collectors. [238B-E}
220
SUPREME COURT REPORTS
[1974] 2 S.C.R.
[The need for' simplifying and streamlining service rules and a;ivina: th.em
A
statutory shape so as to promote contentment among the services by extending
the area of equal treatment and imparting stability to conditions of ser\'ice
pointed out}.
ORIGINAL JURISDICTION : Writ Petition No. 299 of 1969.
Under Article 32 qf the Constitution of India for the enforcement
of fundamental rights.
M. N. H. Heb/e, Parvathi Heble, S. V. Tambwekar, K.
Raje11dra
Chaudhry and Veena Devi Ta/war, for the petitioners.
S. B. Wad and S. P. Nayar, for respondent No. 1.
S. C. Agarwal, R. K, Garg and V. J.. Francis, for respondents Nos.
46-54.
The Judgment of the Court was delivered by
BHAGWATI, J. The short question that arises for determination in
this petition under Art. 32 of the Constitution lios in a very narrow
.::ompass, but in order to arrive at its proper dctcrn1ination it is necessary to state the facts giving rise to the petition in some detail.
Prior to the reorganisation of the States, which took place on
l.~t
November, 1956 by virtue of the provisions of the States Reorganisation Act, 1956, the petitioners were confirmed Tehsildars in the quondam State of Hyderabad which was then a Part B State. The Rules of
recruitment to the posts of Tehsildar which prevailed in the erstwhile
State of Hyderabad provided that I/3rd of the number of posts shall
be filled by promotion from the lower ranks
while
the
remaining
2/3rd shall be filled by direct recruitment on the basis of the result cf
competitive examination. The petitioners belonged to the latter category
of directly recruited Tehsildllls. The next higher cadre above that of
Tehsildars was the cadre of the Deputy Collectors and recruitment to
that cadre was governed by a notification issued by the Rajpramukh
of Hyderabad State on the 15th September, 1955.
This notification
provided that all the vacancies of the cadre of Deputy CollectOfS shall
be filled 'only by promotion by selection' from the cadre of Tehsildars.
It was common ground between the parties that both the cadres of
Tehsildars as well as Deputy Collectors were State cadres.
On 31st August, 1956 the Parliament enacted the States Reorganisation Act, 1956 and that Act brought about reorganisation of almost
all the States in India with effect from the appointed day, namely, !st
November, 1956. The fasciculus of sections in Part II of the Act
altered the territories of the existing States of Madras
and
Andhra
Pradesh and brought into being various other new States. We are concerned here only with the formation of the new State of Bombay and
we will, therefore, confine our attention to that. Section ~ constilutod
a new State of Bombay \vith territories drawn fron1 Various existing
States. namely, Bombay, Hyderabad, Madhya Pradesh,
Saurashtr:i
and Kutch. The old State of Bombay ceased to exist and a new State
of Bombay with considerably enlarged territories came info being·
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R. s. DEODHAR '" MAHARASHTRA (Blzagwati, !.)
221
Since the new State of Bombay comprised territories coming from _
different existing States that was naturally bound to give rise to new
and complex probli;ms of administration, particularly in foe
context
of increased tempo of developmental activities inducting· land reform
measures . and the necessity of integrating th_e services, introducing a
unified pattern of administration and unifying the laws in the different
territories brought together to form the new State of Bombay. The
Government of Bombay, therefore, issued a Resolution, dated !st
November, 1956, dividing the territories of the new State
into
six
divisions and placing e.ach division in the charge of a Divisional
Officer. The territories of former Saurashtra and Kutch States were
grouped together in Rajkot Division, the territ·ories drawn from the
former Bombay State, save the District of East Khandesh,
in
Ahmedabad, Bombay and Poona Divisions, the territories drawn from
the former State of Madhya Pradesh in Nagpur Division and the tcrri·
tories drawn from the former Hyderabad State with the addition
of
East Khandesh District in Aurangabad Division.
Since
the servic'
personnel from these different territories came to be allocated to th'
new State of Bombay, they had all to bo fitted into form a compact
and hon1ogcncous service, and it was,. therefore, necessary to decide
where and at what place they should be adjusted in the constitution of
the new· service. This process necessarily involved equation of posts.
absorption of service personnel in the equated posts and determination
of illter se seniority. The Government of Bombay, therefore. made Tl;,
Allocated Government Servants'
(Absorption, Seniority,
Pay
and
Allowances) Rules, 1957, which we shall hereafter, for the sake of
oonvcnience, refer to as the Rules of 1957. The Preamble to the Rub
of 1957 stated that they were made by the Governor of Bombay in
exercise of powers conferred by Art. 309 of the Constitution and wiih
due regard to the proviso to sub-s. (7) of s. 115 of the States Reorganisation Act, 1956 and· with the approval of the Government of India
obtained thereunder where neeessary. The Rules of 1957 provided
inter alia for absorption of all persons allotted for
Servfce to the
State of Bombay and the determination of their inter se seniority in the
cadre of absorption. Rule 3 dealt with the case of an allocated Govern·
ment servant belonging to a local cadre, that is, a cadre other than a
State cadre in a former State, but this rule had no application to
Tehsildars of Ex-Hyderabad State because they belonged to a State
cadre artd not to a lo:al cadre .. Rule 4 enacted a general provision ihat
the appointing authority shall issue an order absorbing each allocated
Government servant, other than one covered by r. 3. in an equivalent
post after the equation of posts was made by· the Government.
The
Government of Bombay thereafter. by a Resolution dated 21st
October, 1957. declared inter a/ia that the post of Mamlatdars in the
· former State of Bombay shall be deemed to be equivalent to ·the posts
of Tehsildars allocated from the foi·mer State of Hyderabad. The peti·
tioners. and other Tehsildars allocated from the Ex-Hyderabad Sta:o
were accordingly absorbed as confirmed Grade II Mamlatdars with
effect from ·l st November; 1956. and since thcv wcro 'serving in one or
the other of the districts of the . Ex-Hyderabad State which· wer~
· grouped together with East Khandesh District to constitute Aurangnbnd
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Division, it was dir.ected that they shquld be treated as
Grade II
Mamlatdars in the Aurangabad division. Similarly, by the same Government Resolution dated 21st October, 1957 the posts of Deputy
Collector in the former State of Bombay were declared to be equivalent to the posts of Deputy Collector allocated from the former State
of Hyderabad.
·
·Prior to !he reorganisation of the States different rules of recruitment to the posts of Deputy Collector prevailed in the different re·
gions which went to make up the reorganised State of Bombay. We
have already referred to the rules contained in the Notification of the.
Rajpramukh of Hyderabad dated 15th September, 1955. Then ti.ere
were rules enacted by the Government Resolution dated 24th Juli,
1~51 which prevailed in the fomer State of Bombay. There wore also
similar rules in the ether States, namely, Madhya Pradesh, Saurashtra
and Kutch.
The allocated Mamlatdars/Tehsildars coming from these
different States undoubtedly carried
their respectiv~ conditions of
service with them under s. 115, sub-s. (7) of the States Reorganisation· Act, 1956, and those conditions of service included the right to
be considered for promotion as Deputy Collector, but the different
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rules of recruitment which prevailed in the differ·ent regions as such
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became wholly inapposite and incongruous and ceased to be appli- .
cable in the new set up.
The. Government of Bombay, therefore,
felf that it was necessary to have new rules of rec·ruitmcnt to the posts
__ \lLDcputy Collector applicable
uniformly throughout the territory
· cf the reorganised State and, with that end in view, framed recruitment rules and issued them as appendix to a Rcsolutimt dated 30th
July, .1959. These rules we shall hereafter for the sake of conveni·
ence refer as the rules of 30th July, 1959. Rule 1 of tbese Rules· is
material and it may be reproduced as follows .:
"Appointment to. the posts of Deputy Collector ,.hall
be made either by nomination or by promotion of suitable
Mamlatdars.
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Provided that the ratio of appointment. by nomination
and by promotion shall, as far as practicable be 50 : 50.
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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."
It will be noticed that according to these rules vacancies in the posts
of Deputy Collector were to be filled from three sources : 50% by
nomination on the basis of the result of competitive examination, 25 %
by directly recruit·,d Mamlatdars who have put in at least seven years
service including the period spent on probation and the remainin~ 25%
by Mamlatdars promoted from the lower ranks in \)10 Revenue Department. Tue· reservation of 25% of vacancies in favour of directly re·
cruited Mamlatdars was made by the second proviso to rule 1, but in
writ Petition No. 845 of 1967 filed by one Kapoor against the Commissioner of Aurangabad Division & Ors., a Division Bench of the Bombay
High Court, by its judgment dated 23rd March,
1968, declared
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R. s. DEODHAR v. MAHARASHTRA (Bhagwati, J.)
223
that proviso void as being violative of the equal opportunity ~lause
contained in Art. 16 of the Constitution; The petitioners in this petition disputed the correctness of this view takon by the High Court
and contended that the provision enacted in the second proviso to rule
· 1 was a valid provision. But of that a little later when we deal with
the arguments of the parties. It is, however, evident that if the second
proviso to ruk 1 were invalid, 50% of the vacandes · in the posts of
Doputy Collector would have. to be filled by nomination and 50% by
promotion of Mamlatdars irrespective of whether they were directly
recruited Mamlatdars or Mamlatdars promoted from the lower ranks .
. \Ve may also at this stage refer to one other cont~ntion raised on behalf
of the petitioners in regard to ·the Rules of 30th July, 1959. That
contention was that the Rules of 30th July, 1959 did not apply to the
allocated Tehsildars from Ex-Hyderabed State who continued to be
governed by the recruitment and promotion rules of their erstwhile
State. This contention was sought to be supported by reference to
a letter dated 18th October, 1960 addressed by the Commissioner of
Aurangabad Division to the first petitioner· in which the Commissioner
stated that the Rules of 30th July, 1959 "are not applicable to Marath\vada officers as they are governed by re.cruitn1ent and promotion
rules of Ex-Hyderabad State which are not yet unified by Government."
The respondents admitted that such a letter was addressed by .the Commissioner to the first petitioner, but said that that was due to a bonafide
error, and in any event it was not binding on the State Government.
The respondents urged that the Rules of 30th July, 1959 were unified
recruitment rules applicable throughout the whole of reorganised State
of Bombay and the promotion of the allocated Tehsildars from ExHyderabad State to the posts of Deputy Collector was governed by
those 'Rules and not by the Ex-Hyderabad rules. This controversy as
to the scope and extent of the applicability of the Rules of 30th July,
1959 need not, however, detain us, as the same controversy \Vas raised
also before the Bombay High Court in Kapoor's case and was decided
in favour of the State Government,. and in view of the cogent reasons
given by the Bombay High Court in support of its decision the petitioners·
did not press their contention and agreed to proceed on the footing that
<he Rules of 30th July, 1959 governed recruitment to the posts
of
Deputy Collector throughout the reorganised Bombay Stzte.
It may also ~tated that, as in the case of Deputy Collectors, so also
in the case of Mamlatdars, the Government of Bornbav mad~ unifled
rules of recruitment by a Resolution dated
19th November,
1959.
These Rules which we sha]J for the sake of convenience refer as the
·Rules of 19th November, 1959 came into force with effect from !st
January, 1960.
Rule 1 of these rules is material and it provided that
appointment to the posts of Mamlatdars. shall be made by nomination
on the result of competitive examination or by promotion from amongst
tl1e members of subordinate revenue service. provided that as nearly as
may be one half of the vacancies in the cadre of Mamlatdars shall be
reserved for direct recruits by nomination "except in the case of Na~
pur Division" where a special provision was made that this ratio would
not aoply till oil persons recruited as Naib Tehsi!dars were either promoted as Tehsild1rs or rejected as not fit to be so promoted.
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SUPREME COURT REPORTS
[ 1974] 2 S.C.R·
Now, according to the respondents, the cadre of Mamlatdars was a
divisional cadre and not a State cadre and the reorganised State of
Bombay being divided into six divisions, ·there. was a separate cadre of
Mamlatdars for each division.
This position was, however, disputed
on behalf of the petitioners and their argument was that though it was
true that Mamlatdars were allocated to different divisions, that was only
for the sake of administrative convenience and it did not have the effect
of splitting up the State cadre of Mamlatdars into divisional cadres. The
· cadre of Mamlatdars always remained one and indi,isibk and it was a ·
State cadre.
Now, whatever be the correct position in law, and we
shall examine that presently, one thing is certain that the State Government proceeded on the basis that the cadre of Mamlatdars wa> a divisional cadre.
The procedure that the State Government followed for
making appointment to the posts of Deputy Co!lect·Jr by promotion of
suitable Mamlatdars/Tehsi!dars from and after 1st November, 1956
was that Jor each division a select list of Mamlatdars/Tel1sildars considered fit for promotion as Deputy Collector was prepared by a revising
committee every year and from the divisional sekct list, promotions
were made as officiating Deputy Collector on a divisional basis, and
thereafter confirmations in the cadre of Deputy Collector, which was
admittedly a State cadre, ''were made for the State as a whob after
considering the claims of all officiating Deputy Collectors in the State
as a whole.
This procedure does not appear to have the warrant of
any legislative
rules or administrative
orders,
but
there can
be
no
doubt,.
from
the
affidavit
in
reply
filed
on
behalf of the State Government, that it was in fact
followed
for
making promotions to the posts of Deputy Collector.
On 7th April,
1961, the Government issued a Resolution laying; down the "principle<
for regulating preparation and revision of select list of Mamlatdars/
Tehsildars fit to be appointed as Deputy Collectors in the posts to
be filled by promotion". It may be recapitulated here that under
the Rules of 30th Ju\y, 1959 the posts tO be filled by promotion
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of suitable Mamlatdars/Tehsildars were 25% in case
the second
proviso to rule 1 were held to be valid and 50% in case it was
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invalid.
The Government Resolution dated 7th April, 1961 provided '
that a committee should, in July-August each year, review the claims
of all Mamlatdars(fehsildars for promotion to the posts o1 I'eputy
Collector and should draw up a select list for each division of those
who are considered by the committee fit for promotion, and para- .
graphs 3 to 7 of this Government Resolution laid down the principles .
governing the preparation and. revision of the divisional· selec~ . ~sts.
The promotions as officiating Deputy Collectors were made d!Vls10nwise on the basis of the divisional select lists and confirmations in
the cadre of Deputy Collector were made according to. the combined
seniority list of officiating Deputy Collectors.
Paragraph 17 of the
affidavit in reply filed on behalf of the State Government set out the
detailed procedure followed by the St"cte Government in this behalf.
We shall have occasion to refer to this procedure in detail when we
examine
the
respective
arguments
of the parties and we need
not, therefore, elaborate it at this stage.
Snffice it to point out that
it was in accordance with the procedure that the petitioners were
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R. s. DEODHAR v. MAHARASHTRA (Bhagwati, I.)
22$
promoted as officiating Deputy Collectors in the Aurangabad Divisimi
on different dates. The consequence of the adoption of thi• proce-
. dure, however, was that some of the allocated Mamlatdars/Tehsild'1rsin other divisions, who were junior to the pe:itioners,
became
JJfficiating Deputy Collectors earlier than
_the petitioners and. were
consequently entitled to be conf4med in the cadre of Deputy Collector•
in preference to the petitioners. The petitioners actually gave
in
paragraph 38 of the petition examples of three allocated Mamlatdars
from Ex-Bombay State, who were admittedly appointed Mamlatdars
. later than the petitioners, and yet came to be promoted os oftkiating:
Deputy Collectors earlier than the petitioners. This was the main
cause of grievance of the petitioners in the petiti-~n.
Before we conclude the narration of facts we must also refer to
Government Resolution dated· 29th July, 1963 passed by the Govornment of Maharashtra which superseded the rule of seniority contained
in an earlier Government Res-elution dated 21st November, 19-H.
and provided that "The seniority of. .. promoted officers in the State
Services"-and this would include the service of Deputy Collectors-
"should· be determined, •. according to the date of promotion to
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officiate continuously in the case of those appointed by promotion,
· irrespective of whether the appointments are made in temporary or
in permanent . vacancies, subject to the provisions of the
following
clauses : (i).;_(ii) The inter se seniority of officers promoted from the
select lists prepared in consultation with the State Public Service Commission should be determined in accordance with the ranks in the sdect
list." This was the rule which governed the determination of seniority
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in the cadre of Deputy Collectors.
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Nbw, various reliefs were claimed by the petitioner in the present
petition, but of these reliefs, the petitioners did not press those contained in prayets V, VI and IX to XII. The · other reliefs were
pressed by the petitioners and they may be subsummed :mdcr the
following _three grounds :
·
.
(A) The gradation list of Mamlatdars/Tehsildars allocat·
ed·to the State of Bombay as on 1st November. 1956
was liable to ·be prepared in accordance with the
principle of seniority laid down in Government ·
Resolution dated 21st November, 1941, and the Gov-
. ernment Resolution dated 29th July; 1963 . -had no
application in the determination of such seniority.
(B) The Rules of 30th July, 1959 varied the conditions
of service of the petitioners and other allocated
Tehsildars from Ex-Hyderabad State to their
dis·
advantage without the previous approval of the Central Government as required under the provi!o to
s. 115, sub-s. (7) of the States Reorganisation Act, .
1956, and were, therefore, null and void.
If, contrary to this submission, the Rules of 30th July,
1959 were valid, so also was the .eoond proviso to
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SUPREME COURT REPORTS
[ 1974] 2 s.c.R.
rule 1 of these .Rules, and the Bombay High Court
was in error in declaring .it to be in.valid in Kapoor's
case.
(CJ The Government Resolution dated 7th April, 1961,
as also the· procedure for making promotions t~ the
posts of Deputy Collector followed by the State Government were violative of · the equal
opportunity
clause contained in Art. 16 of the Constitution. The
promotions to the posts of Deputy Collector should
have been made on the basis of Statewide seniority
of Mamlatdars/Tehsildars by selection from amongst
Mamlatdars/Tehsildars throughout the State
as
a
whole.
We shall proceed to examine these grounds in .the order in which
we have set them out, but before we do so we must refer to some
<Jbjections of a preliminary nature raised on behalf of. the respondents.
The first preliminary objection raised on behalf of the respondents.
was that the petitioners were guilty of gross ]aches and delay in filing
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the petition.
The divisional cadres of Mamlatdars/Tehsildars were
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created as far back as 1st November, 1956 by
the
Government
Resolution of that date, and the procedure for making promotion to·
the posts of Deputy Collector on the basis of divisional select lists,
which was a necessary consequence of the creation of the divisional
•cadre of Mamlatdars/Tehsildars, had been in operation for a long
number of years, at any rate from 7th April, 1961, and the Rules
of 30th July, 1959 were also given effect to since the date of their
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.enactment and yet tlie petitioner did not file the petition until 14th
July, 1969. There was a delay of more than ten or twelve years
in filing the petition since the accrual of the cause
of complaint,
and this delay, contended the respondents, was-sufficient to dlsentitlc
the petitioners to any relief in a pe'.ition under Art. 32 of the · Consti-
. tution.
We -do not think <this contention should prevail with us.
In the first place, it must be remembered that the rule which says
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·that the Court may not inquire into belated and stale claims is not
a rule of law, but a. rule of practice based on sound and proper
·exercise of discretion, and there is no inviolable rule that whenever
there is delay, the court must necessarily refuse to· entertain
the
petition.
Each case must depend on its own facts.
The question,
..is pointed out by Hidayatullah, C.J.; in Tilockchand Motichand v.
H. B. Munishi(•) "is one of discretion for this Court to follow from
case to case. There is no lower limit and there is no upper limit-.
It will all depend on what the breach of the Fundamental
Right
and the remedy claimed are and how the delay arose." Here the
petitioners were informed by the Commissioner.