Appeal No 46376
Appeal by Special Leave from the Judgment and Order dated 1112 11 1975 of the Gujarat High Court in LPA No 11374
DV Patel PH Parekh and Miss Manju Jetley for the Appellants
MC Bhandare SP Nayar and MN Shroff for the State of Gujarat
R K Garg and SC Agarwala for Respondents Nos
5 6 and 8 11
MN Shroff for the State of Maharashtra
The Judgment of the Court was delivered by KRISHNA IYER J
This is a typical service  appeal by special leave which prompts the topical question Is lit Wiser national policy to process disputes regarding seniori ty promotion termination and allied matters affecting the public services through the docket bound formalised methodology of the judicature adopting its traditional time consuming tier upon tier system and handicapped by absence of administrative expertise accessibility to criti cal information and other limitations on the mode and extent of relief or alternatively through built in high pow ered but credibility wise less commanding agencies of composite skills and processes and flexible remedial juris dictions  Justice and Reform  is a recurrent interroga tion
Our civil services if only the static and stratified system were transformed and the men properly oriented and activated may well prove equal to the dynamic challenges of our times but for the pathetic phenomenon of numbers of officials being locked in long forensic battles
This litigative pathology of the members of the public services deplorably diverts the undivided energies sensitive under standing and people based disposition demanded of them for the fulfilment of the Nation s Tryst with Destiny through implementation of massive 1040 and multiform developmental plans
Hopefully constructive thinking on impregnable competent and quick acting but not derobed or devalued intra structures and procedures for improving and accelerating the system of justice to the public services is currently under way
Now to the merits
The briefs are big and the arguments long but the factual matrix and the legal conflicts lend themselves to be condensed without detriment
The competi tion between two categories of members borne on the cadre of Deputy Collectors of the State of Gujarat viz direct recruits and in service promotees on the issue of seniority inter se with its futuristic career overtones is the crunch question in this civil appeal
The grey area of service jurisprudence  covered before us encompasses sever al decisions and if by good disputing shall the law be well known  there has been so much disputation of learned length at the bar that the legal points should have been more pellucid than the precedents read and re read made us feel The aid of the purifying ordeal of skilled argument  when too lapidary and finical reaches a point of no return despite Megarry J to the contrary in Cordell vs Second Clanfield Properties Lid 1
Seven Deputy Collectors arriving by direct recruitment in and after 1963 claim to be ahead in the gradation list of their more numerous counterparts former mamlatdars whose promotional incarnation as Deputy Collectors dates back to the years 1960 63
The title of these younger incum bents to be eider in the Civil List is primarily founded on a basic Resolution of Government of July 30 1959 regulating recruitment to the Deputy Collectors  cadre by the then Bombay State adopting a quota basis
The Gujarat State carved out of Bombay and formed on May 1 1960 continued the system and so simplistically presented the fate of the seniority  struggle critically turns on the construc tion the Bombay Resolution of 1959 bears the rival versions having been alternately frowned upon or favoured at the original and appellate docks of the High Court
There are other matters of moment debated at the bar and we will pass on some of them at later stages
In administrative and legal terms this case is the projection of the common rivalry for promotional positions between fresh young recruits and old seasoned promotees between alleged excel lence of talented youth and tasted experience of mellowed age
Sympathies may sway either way and reasons often spring from sympathies
To be captiously wise in retrospect may itself border on vice
Even so we are constrained to observe that when government orders as here have the flavour of law and impact upon the fundamental rights and equal opportunities of citizens they have to be drafted with the case that legal orders deserves lest avoidable litigation should thrive for no better reason than that administrative orders or subsidiary legislation have been drawn up with a casual ness that betrays the skills of insoucience
Law must be precise simple clear comprehensive and 1 1968 3 All ER Ch
1041 there is a duty on the law maker at every level not to injure the community by tengled webs of rules orders and notifications whose meaning is revealed only through tran scendental meditation or constant litigation
in a social istic pattern of society there is hardly any part of nation al life or personal life which is not affected by some legal rule or other
When men have to look to the law from the cradle to the grave making of even subsidiary laws demands greatest attention
To begin with the legal beginning is best done with the Bombay Government Resolution of 1959 after giving a thumb nail sketch of the relevant service structure and other minimal particulars
The composite Bombay State for purposes of Revenue Administration had been divided into Divisions which were separate units for promotional prospects liability to transfer etc of deputy collectors
The routine source of recruitment to these posts used to be mamlatdars who were transferred as deputy collectors by promotion
As early as 1939 a different recruitment policy had been evolved for picking suitable hands from the open market by direct nomi nation
The inevitable concomitant of a plurality of recruitment categories is the evolution of a workable rule of inter se seniority
So by an order of 1941 the mode of determining seniority between nominees  and promotees  was settled
Service for seniority purposes so far as direct recruits were concerned was to run from the date of their appointment on probation and in the case of promotee offi cers such service was to begin with promotion in substan tive vacancies if continued without break
For reasons obscure the direct recruitment scheme of infusion of fresh blood to use the usual validating vascular metaphor to invigorate the Administration hibernated from 1950 until 1959
However the crucial government decision of July 30 1959 not merely re activated the mode of direct recruitment but fixed the promotion in which recruitment from the two sources was to be made referred to conveniently as the quota system
The heart of the debate before us is whether a quota prescription willy nilly does postulate ex necessitate a rota process in practice
We may here read the resolution itself Deputy Collector Recruitment of probationers GOVERNMENT OF BOMBAY REVENUE DEPARTMENT Resolution No RTC
115799153 D Sachivalaya Bombay 30th July 1959 Read Government Resolution No 931345 dated the 6th Febru ary 1950
Government Resolution No 931345 dated the 24th July 1951
1042 RESOLUTION 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 interest of administration the revival of that system is quite necessary
Government is accordingly pleased to cancel the orders contained in Government Resolution No 931345 dated 6th February 1950 and those in Government Resolution No 931345 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 herewith
x x x x x By order and in the name of the Governor of Bombay GL Sheth Secretary to Government We may also extract the portion from the  annexed rules of recruitment pertinent to our purpose Appointment to the posts of Deputy Collector shall be made either by nomination or by promotion of suitable Mamlatdars Provided that the ratio of appointment by nomination and by promotion shall as far as practicable be 50 50 The raw materials government proceedings needed for our discussion will be complete if the 1941 Resolution also were read at this stage GOVERNMENT OF BOMBAY Political  Services Department Resolution No 328334 Bombay Castle 21st November 1941
x x x RESOLUTION 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 1  Date of their promotion to the 2 substantive vacan cies 3 provided there has 1043 been no break in service prior to their con firmation in those vacancies
By order and in the name of the Governor of Bombay GFS Collins Chief Secretary to the Govt
of Bombay Political and Services Department Flowing out of the fixation of the ratio between the two species of recruits and having a bearing on the issue of seniority is another Resolution of the Bombay Government continued during the relevant period in Gujarat also by virtue of an omnibus circular of May 1 1960 of February 3 1960
This step became primarily necessary on account of the Reorganisation of States and the abolition of Divisions
The legal fiction of deemed dates of commencement of serv ice  for the purpose of inter se seniority of personnel drawn from different pre Reorganisation States and from the Divisions within the State on conversion of the deputy collectors  cadre into a State wide one has been crystal lised in this rule of February 1960
One more clarificatory proceeding of Government dated May 27 1960 has loomed large in Shri Patel s submissions especially the Explanation portion thereof and in a sense it lends some push to the problematic conclusion
We there fore read the relevant Government Circular right here No GSF 1060 F Government of Gujarat General Administration Department Sachivalaya Ahmedabad 27th May 1960 CIRCULAR Read Government Circular No GSF 1060 dated the 1st May 1960
Doubts have arisen as respects the directions given under Government Circular No GSF 1060 dated the 1st May 1960 
To remove any doubt in that behalf therefore Government is pleased to direct that the following Explanation shall be and shah be deemed always to have been added to the said circular namely 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 condi tions of service of the officers authorities or persons appointed or the members of the Tribunals or bodies so constituted
By order and in the name of the Governor of Gujarat
Sd V Isvaran Chief Secretary to the Government
 Reliance has been placed on the Explanation quoted above to emancipate Government from compliance with the Bombay rules 1044 regarding appointments of officers or their conditions of service an aspect we will expand if needed
Prima facie while we agree that the new State is not bound by adminis trative directions of the parent State and may free itself from it by appropriate steps an unguided power is suspect and a carte blanche in doing what Government fancies with any of its servants is subversive of ordered societies
We have no further probe to make into this Resolution in the present case and leave it at that
The fact of the matter is that during 1959 62 no direct recruitments were made but many promotions were effected
Afterwards ie in 1963 and later direct recruits were appointed who contrary to their legal aspira tion were not assigned seniority over earlier promotees of 1960 63 vintage having regard to the factual position
The further hope that for post 1963 recruits dates of appoint ment and running of service with effect therefrom on the basis of a quota allocation and rota system telescoped into it proved a plain dupe in the seniority list prepared by government
The doubly chagrined direct recruits moved the High Court for relief as stated earlier
The anatomy in outline of the deputy collector s cadre in the Gujarat Government and the grievances of the writ petitioners respondents before us thus emerge
On a 5050 basis the vacancies in the cadre are filled from two sources viz direct recruitment and promotion from among mamlat dars
Once appointed their seniority gains saliency and turns on length of service and though no specific provision to count commencement of service is made in the 1959 Resolu tion it has been understood as set out in the 1941 Resolu tion earlier mentioned
The contesting respondents plead for pushing down promotees based on the strict roster system of 1 1 going by each vacancy and demur to taking the year as a unit for adjustment of ratio
Which view should prevail Force there may be in the rival versions indi vidual injustice there can be whichever view were accepted and precedential pushes and pressures may also be brought into play by either side if we surrender to scriptural literality of decisions of this Court and miss the thrust of the ratio therein
In a liner sense and within the frame of reference of leading precedents each case has an individu ality and is a law unto itself
Strictly speaking the primary problem is one of fair interpretation of the basic government Resolution of 1959 illumined by the purposes and motivations of good government and unravelling the implications embedded therein against the background of the administrative structure service pattern and seniority principles prevalent contemporane ously as gleaned from the records of the case
The milieu aids the meaning although lawyer s law leans heavily even lop sidedly on judicialized lexicography
Counsel natural ly took us through rulings bearing on the meanings of words and canons of construction which merely re stated time honoured principles and dictionary culls and did not make us any the wiser in coming nearer to a resolution of the conflict here
Likewise arguments galore on the connota tion of the quota system of recruitment with abstractions propositions and illustrations based on decided cases were addressed to us although we came out by the same door as in we went  Common 1045 sense is the first aid in the art of interpretation
The only sure approach that judges make when confronted by complexity in construction and necessity for rationalisation is on the lines justice Cardozo frankly stated 1 We may figure the task of the judge if we please as the task of a translator the reading of signs and symbols given from without
None the less we will not set man to such a task unless they have absorbed the spirit and have filled themselves with a love of the language they must read Two groups the promotees who came from the lesser stations of life and the direct recruits who have had better advan tages of higher education fight for berths in the musical chair
In such situations while construing rules sub conscious forces have to be excluded and objectification must be attempted
Even so the beautiful candour of Benjamin Cardozo whispers to us that we judges are  ever and always listening to the still small voice of the herd and are ever ready to defend and justify its instructions and warnings and accept them as the nature results of our own reasoning
This was written not of judges specially but of men and women of all classes
The training of the judge if coupled with what is styled the judicial temperament will help in some degree to emancipate him from the suggestive power of individual dislikes and prepossessions 
  2  Our effort in unlocking the meaning of the controversial Government Resolution of July 1959 and of other official notifications may inarticulately minimally and unwittingly be moulded by these broad under currents
Other facts relevant for discussion of specific points urged and other legal issues germane to the grounds of attack and defense formulated by counsel may be filled in as and when those points are taken up by us instead of inartistically clut tering up or en massee lugging together many government proceedings sequences of events and clarification of difficulties following on the division of Bombay into Gujarat and Maharashtra even at this preliminary stage
The pivotal questions one an interpretative exercise and the other a facet of the fundamental right of equal opportunity around which revolve the other arguments may first be set out 1 If the Gujarat Government has by an administrative guideline or statutory rule directed that open market recruits and in service promotees will be ap pointed on a 50 50 basis with the qualification that this principle shall be adhered to as far as practicable is Government free to ignore such a rule of conduct as if it were no inflexible directive violation of which spells illegality on the appointments made or does this clause obligate the State flatly to try and comply but if surprise circumstances or insurmountable exigencies arise which make recourse to the rule impracticable deviate from it without the risk of court branding such deviant appointments void In short how far can 1 Benjamin N Cardozo The Nature of the Judicial Proc ess Yale University Press P 174
2 Cardozo supra pP 175 176
1046 administrative pragmatics influence without invalidation the recruitment mechanics where a narrow rider providing for imponderable exigencies written into the rule provides for departure  2 Assuming there has to be a proportion of 50 50 as above indicated how is it to be worked out  On a rotational basis of the direct recruits inexorably getting the first the third the fifth and such like vacancies or as an entitlement to half the total number of vacancies arising in the cadre in a particular year or other conven tional period  Again does it further imply an imperative obligation on the part of Government to keep untilled all vacancies allocable to direct recruits so that they may be available to be filled up in later years with retroactive repercussions and if such ear marked posts are for admin istrative exigencies filled regularly not ad hoc in sub stantive vacancies not ex cadre posts by selection and promotion they must be treated as provisional nationally filled by direct recruits who may arrive long later And consequentially in counting seniority reckon their ie direct recruits deemed dates of entry as prior to those actually officiating promotee deputy collectors by importing a sort of legal fiction that the direct recruits must be allowed to count service from the date when the entitled vacancy for direct recruits arose May be a diffusive digressive discussion can be obviated and the focus turned on specific issues if we start with a formulation of the major points urged by Sri D V Patel counsel for the appellant hotly controverted of course by shri RK Garg for the contesting respondents
Elimination of the minor clears the ring for the major bouts
The appellants represent the group of promotee deputy collectors and the contestants are deputy collectors di rectly recruited
The Gujarat State lines up with the former more or less
We now set out sequentially the six point propositional formulation made by Shri Patel for the appellants although salience suggests the third item as first and if we anticipate our conclusion the last in importance
The cornerstone of the case as noted earlier is the Bombay Government s Resolution of 1959 fixing the proportion between direct recruits and promoted candidates with an emergency escape route to jump out of the fixed ratio
Shri Patel s first point is that once the new State of Gujarat was formed mere administration proceedings of he former government of Bombay State ceased to be in force proprio vigore unless Gujarat adopted or continued or otherwise modified them
subject to statutory regulations and consti tutional limitations
The State of Gujarat had plenary executive power granted by the Constitution to fill up administrative posts in any manner it chose
The clarifi catory government Resolution of May 27 1960 issued by the Gujarat Government becomes significant in this context as it contains in explanation which specifically provides that the adoption of the Bombay Government Resolution of 1959 does not in any way fetter the Gujarat Government in making appointments of officers on or after May 1 1960 nor does the said 1959 Resolution in any manner restrict the condi tions of service of such officers
Therefore it is per fectly oven to the Gujarat Government to make fresh appoint ments to the posts of Deputy Collectors untremmelled by the ratio or other 1047 restrictive conditions which may be read into the Bombay Government Resolution of 1959
In this view his clients cannot suffer even if the Bombay Resolution has been breached
2 Assuming that point No 1 has no force Shri Patel submits that the various government Resolutions of the Bombay and Gujarat Governments referred to by the parties are purely administrative directions and cannot have the binding status of statutory rules
Therefore no rights can be derived therefrom by the direct recruits or potential direct appointees and breach of such directives or rules cannot invalidate appointments made
3 On the further assumption that point No 2 above is bereft of substance and the Government Resolutions referred to have statutory character the very terms of the 1959 Government Resolution provide a sensible safely value wisely anticipatory when we remember the pragmatic considerations and administrative exigencies that the slow moving apparatus of the Government of a newly formed State has to face or be puzzled with
The 1959 Resolution which is the rounding document  of the rights of the direct recruits itself states that the propor tion between the two categories is to be applied as far as practicable 
Therefore the rule is neither exception proof nor abstractly absolute but realistic and flexible true to life
Rigidly to read the rule is surely to misread it
Since it contemplates special situations of impracticability it is but right for the Court so to construe the Resolution in the light of the explanation offered by the State for non recruitment directly until 1963 as to make it adminis tratively viable and reasonably workable If such an imagina tive and informed judicial insight plays upon the rule the difficulties in making immediate recruitments from the open market by the Public Service Commission may sufficiently absolve the State from the supposed violation of Government Resolution of 1959 So viewed the orders of promotion of the appellants are in order and unassailable
4  5 The mandate of equality ensconced in Arts 14 and 16 cannot handcuff justice by pushing down the promotees if the Sen iority List in the face of their actual service and legal appointment
The attack based on article 16 that the roster method of filling up posts is integral to the quota system is baseless
Quota without rotate is also reasonable and constitutional as much as quota plus rota
The choice both being permissible and fair is left to the Administration the Court not ferretting or dissecting to detect deadly traces of discrimination or unreasonableness
6 The assignment of deemed dates  of commencement of service is not unreasonable but is often adopted by Governments when integrating into a common cadre officers drawn from differ ent States or Departments or divisions
Novel compulsions demand novel solutions and law accepts life s expediency save where the public Vower has been obliquely exercised or unreasonableness is writ large on the face of the process
Such a stigma being absent the promotees cannot be dis lodged from their notches in the ladder
We are mercifully absolved from making the discussional journey over a long mileage covering the poly pointed formu lation since two essential issues may virtually be decisive of the case
Both sides have agreed to this abbreviation and the other grounds have dropped out of effective contest in the long course of arguments
Enough upto the day 1048 It is fair to state even at this stage that be the Bombay GO of 1959 merely administrative or really statuto ry both the learned Single Judge and the Division Bench have head the Gujarat State bound by it
The rule of law is tile enemy of arbitrary absolutism and the discretion to disobey is a doctrine of despotism and cannot be subscribed to by a Court merely because the state chooses to label a rule or conduct anecting the rights of others an administra tive regulation
In a constitutional order governed by the rule of law whim or humour even if benignly motivated masquerading as executive discretion is anathema to law
When power is vested under the Constitution or other statute in the State to promulgate rules of conduct attracting oth ers such rules must ordinarily govern the State and subject alike
When there are service rules affecting the public services they may either be in exercise of the executive power of the State under article 162 or rules with legislative colour framed under the proviso to article 309 of the Constitu tion
It is fair for the Administration in a democratic system employing expanding armies of government servants whose lot in life and career prospects will be governed by recruitment conduct and disciplinary rules to respect beyond suspicion the rule of law by exercising statutory power as distinguished from executive power even where it has an option
Of course in exceptional situations or sudden exigencies and for new experiments to be tried the framing of statutory rules under article 309 proviso may be postponed and executive orders immediately promulgated
The best judge is the State Government exercising its power justly and efficiently
For the art of government is beset with the perils of a journey through life s jungle and textbook prescriptions can prove ruinous
We may point to another problem
It has often been difficult to discover whether a particular set of rules is framed under the provi so to article 309 or in mere exercise of article 162 although it is desirable that the State makes it explicit
We are however not called upon to investigate this perplexing aspect because as stated earlier the High Court has held that the State is bound by the Bombay GO of 1959
Counsel for the appellants Shri Patel and counsel for the State Shri Bhandare have rightly acquiesed in that posi tion and proceeded with their arguments on that footing
This point which is the first therefore does not need our pronouncement
The other points pedentically capable of being sepa rately dealt with highlight what we have earlier indicated as the two telling questions of law that settle the outcome of the appeal
We will seek the tight of common sense to solve them and later test the conclusions with reference to binding rulings of this Court
The first question that falls for considerations there fore is as to whether the 5050 ratio as between direct recruits and promoted hands is subject to the saving clause as far as practicable 
Can Government vary the ratio  Ordinarily No Is it permissible at all  Probably yes given proof of the government s case that it was not practicable for the State to recruit from the open market qualified persons through the specialised agency of the Public Service Commission
The factual basis for this plea of extenuation will be examined presently but according to Shri RK Garg appearing for the contestants 1049 even if the alibi of the State were true it furnished no legal justification for deviation from the application of the rule
He interpreted as far as practicable  occurring in the Government Resolution in a very different way and submitted that to adopt the appellant s view on this aspect was to subvert the substance and nullify the conscience of the binding Bombay Resolution of 1959
Shri Garg argued that the language of the critical GO was peremptory that for the high purpose of improving administrative efficiency a balanced mix of old experience gained by long service and young abilities proved by competitive selection was hit upon as half and half from each category and the Court could not fall for any construc tion of the words as far as practicable  which would frus trate this goal of overall efficiency unless the semantic search left no other option
Far from there being no alternative interpretation the benignant purpose of the Resolution pressed forward to a reasonable meaning that as far as practicable  related not to the tampering with the proportion of the mix but in permitting provisional varia tions or ad hoc solutions or emergency arrangements to meet a difficulty of the Administration without making formal or regular appointments  to the posts meddling irrevocably with the proportion in the prescription
Later when direct recruits were secured they would be entitled to their quota vacancies and commencement of seniority from the date of their appointment
Logomachic exercises are the favourite of the forensic system but too barren to fascinate the Court and too luxuri ous in our penury of time to indulge
Should we chase decisions and dictionaries and finer verbal nuances with explorative industry  The sense of the setting the why  the author whispers through his words and the warning not this
not this  that the objective understanding of the totality of the socially relevant scheme instils these light up the interpretative track alone the criss cross woods of case law and lexicons
Led by that lodestar we will eye the situation afresh
In doing so we must first set down the meaning Shri Patel suggests and Shri Bhandare supports and the manner in which these appellants claim that their appointments and seniority are sequestered by the saving words as far as practicable 
What does as far as practicable  or like expression mean in simple anglo saxon  Practicable feasible possi ble performable are more or less interchangeable
A skiagraph of the 1959 Resolution reveals that the revival of the direct recruitment method was motivated by the inter est of administration  an overriding object which must cast the benefit of doubt if two meanings with equal persuasive ness contend
Secondly going by the text 50 of the substantive vacancies occurring in the cadre should be filled in by selection in accordance With appended Rules As far as practicable  finds a place in the Resolution and the Rule
In the context what does it qualify  As far as possible 50  That is to say if 50 is not readily forth coming then less  Within what period should be imprac ticabilitv to felt  What is the content of impracticabi litv  in the given administrative setting  Contrariwise can you not contend that impracticability is 1050 not a license to deviate a discretion to disobey or a liberty with the ratio  Administrative tone is too impor tant to be neglected but if sufficient numbers to fill the direct recruits  quota are not readily available substan tive vacancies may be left intact to be filled up when direct recruits are available
Since the exigencies of administration cannot wait expediency has a limited role through the use of the words as far as practicable 
Thereby Government is authorised to make ad hoc appointments by promotion or by creation of ex cadre posts to be filled up by promotees to be absorbed in the 50 portion falling to the promotional category in later years
In short as far as practicable means not interfering with the ratio which fulfils the interest of administration but flexible provision clothing government with powers to meet special situations where the normal process of the government Reso lution cannot flow smooth
It is a matter of accent and import which affords the final test in the choice between the two parallel interpretations
We have given close thought to the competing contentions and are inclined to the view that the former is the better
Certainly Shri Garg is right that the primary purpose of the quota system is to improve administrative efficiency
After all the Indian administration is run for the service of the people and not for opportunities for promotion to a few persons
But theories of public administration and experiments in achieving efficiency are matters of govern mental policy and business management
Apparently the State having given due consideration to these factors thought that a blended brew would serve best
Even so it could not have been the intention of government to create artificial situations import legal fictions and complicate the composition of the cadre by deviating from the natural course
The State probably intended to bring in fresh talent to the extent reasonably available but not at the sacrifice of sufficiency of hands at a given time nor at the cost of creating a vacuum by keeping substantive vacancies unfilled for long
The straight forward answer seems to us to be that the State in tune with the mandate of the rule must make serious effort to secure hands to fill half the number of vacancies from the open market
If it does not succeed despite honest and serious effort it qualifies for depar ture from the rule
If it has become non feasible imprac ticable and procrastinatory to get the requisite quota of direct recruits having done all that if could it was free to fill the posts by promotion of suitable hands if the filling up of the vacancies was administratively necessary and could not wait
Impracticable cannot be equated with impossible  nor with unplatable and we cannot agree with the learned judges of the High Court in construing it as colossally incapable of compliance
The short testthere fore is to find out whether the government in the present case has made effective efforts doing all that it reasona bly can to recruit from the open market necessary numbers of qualified hands
We do not agree that the compulsion of the rule goes to the extreme extent of making government keep the vacancies in the quota of the direct recruits open and to meet the urgent needs of administration by creating ex cadre posts or making ad hoc appointments or resorting to other out of the way expedients
The sense of the rule is that as far as possible the quota system must be kept up and if not prac 1051 ticable promotees in the place of direct recruits or direct recruits in the place of promotees may be inducted applying the regular procedures without suffering the seats to lie indefinitely vacant
The next question then is as to whether government has satisfied the Court that efforts had been made to secure direct recruits and failure to secure such hands is the explanation for resort to
promotions of mamlatdars
The reason for delay in making appointments of direct recruits during the year 1960 1961 and 1962 has been set out by the State before us
It appears that a requisition for 12 posts of deputy collectors was sent to the Gujarat Public Service Commission on October 31 1960 but the Commission raised some linguistic queries regarding the requirement of ade quate knowledge of Marathi and Gujarati by the candidates
Anyway various points were raised from time to time in the correspondence between the Commission and Government and eventually the former held a competitive examination for the posts of deputy collectors in July 1962 declared the results in January 1963 and sent up its recommendations in the following February
Government issued orders for ap pointment of the candidates so selected by the Public Serv ice Commission in May 1963
This is a working explanation prima facie good and not rebutted as got up
If it is not necessary for the State Government to have recourse to recondite processes of ad hoc appointments and creation of ex cadre posts and if government has taken active steps in the direction of direct recruitment the exception to the Government Resolution comes into operation
Direct recruit ment ordinarily involves processing by the Public Service Commission an independent body which functions at its own pace
If Government had excluded the posts of Deputy Col lectors from the purview of the Public Service Commission with a view to achieve expeditious recruitment it might have been exposed to the criticism that the normal method was being by passed with oblique motives
Having looked at the matter from a pragmatic angle we are convinced that the government did what it could and need not have done what it ordinarily should not have done
Therefore the con clusion is inevitable although Shri Garg s argument to the contrary is ingenious that the State had tried as far as practicable to fill 50 of the substantive vacancies from the open market but failed during the years 1960 62 and that therefore it was within its powers under the relevant rule to promote mamlatdars who otherwise complied with the requirements of efficiency
Now we move on to the more thorny question of quota and rota
Shri Garg urges that the rotational mechanics is implicit in the quota system and the two cannot be delinked
To shore up this submission he relies on what he propounds as the correct command of the rule of quota 
In his view 1 1 simply means one direct recruit or promotee followed vacancy by vacancy by the other
To maintain the propor tion in compliance with the quota fixture Government must go by each post as it falls vacant and cannot circumvient this necessity by year war reckoning of vacancies and keep ing up the ratio
The counter view put forward by Shri Parekh for the appellant is that 338SC176 1052 quota and rota are not indissolubly wedded and are separate and separable
In the present case according to him it is an error to import rota  where the rule has spelt out only quota  as a governing principle
The Usual practice sanctioned by rulings of this Courtis to go by the year as a unit for working out the quota
Here a again we are not disposed to hold having special regard to the recent decisions of this Court cited before us that quota  is so the recent decisions of this where the former is expressly prescribed interlocked with rota that where the former is expressly prescribed the latter is impliedly inscribed
Let us logicise a little
A quota necessarily postulates more than one source of recruitment
But does it demand the manner in which each source is to be provided for after recruitment especially in the matter of seniority  Cannot quota stand independent of rota  You may fix a quota for leach category but that fixes the entry
The quota methodology may itself take many forms vacancy wise ratio cadre composition wise pro portion period wise or numberwise regulation
Myriad ways can be conceived of Rotational or roster system is a com monly adopted and easily understood method of figuring out the placement of officers on entry
It is not the only mode in the code and cannot be read as an inevitable consequence
If that much is logical then what has been done here is legal
Of course Shri Garg s criticism iS that mere qu ota  is not viable without provision for seniority and if nothing more is found in the rule the quota itself must be understood to apply to each post as and when it falls to be filled
If exigencies of administration demand quick post ing in the vacancy and one source here direct recruit ment has gone dry for a while then the proper course is to wait for a direct recruit and give him notional date of entry as of the quota vacancy and manage to keep the wheels of government moving through improvised promotions express ly stripping such ad hocist of rights flowing from temporary occupancy
We have earlier dealt with the same submission in a slightly different form and rejected it
Nothing more remains to be said about it
What follows and matters on entry into service is seniori ty which often settles the promotional destiny of the var ious brands of incumbents
Naturally the inter se struggle turns how best to bend the rules to one s good account
Shri Garg criticised the thoughtways apparent in the argu ment backed by some rulings that quota being delinked from rota annual intake is the unit for adjusting the seniority among candidates from the two sources
This is an innovation dehors the rule he says
We do not think so
The question is not whether the year being taken as the unit is the only course but whether there is anything in the rule prescribing Government taking it as the unit or prescribing some other specific unit
It is obvious that the Resolution of 1959 is silent on how to allocate or reckon the quota as also on how to compute seniority and Government has a good alibi for taking the year as the unit and length of continu ous service as determining seniority
The first is evident from the reading of the 1959 Resolution in the light of some ruling of this Court and the second from the 1941 Resolution
Moreover there is nothing in the Resolution of 1959 preventing Government from treating a year as the unit
1053 We therefore reach the following conclusions 1
The promotions of mamlatdars made by Government between 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 flamed for promotees and direct recruits flowing into the pool of Deputy Collectors on the same quota basis but with a basic difference
The saving provision as far as practicable  has been deleted in the 1966 rules
The conse quence bears upon seniority even if the year is treated as the unit for quota adjustment
If any promotions have been made in excess of the quota set apart for the mamlatdars after rules in 1966 were made the direct recruits have a legitimate right to claim that the appointees in excess of the allocable ratio from among mamlatdars will have to be pushed down to later years when their promo tions can be regularised by being absorbed in their lawful quota for those years
To sim plify by illustration if 10 deputy collec tors  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 redun dancy 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 promotees
This will have to be worked out down the line wherever there has been excessive representa tion of promotees in the annual intake
Shri Parekh Counsel for the appellants has fairly conceded this position
The 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 contin uous 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
These formulations based on the commonsense understand ing of the Resolution of 1959 have to be tested in the light of decided cases
After all we live in a judicial system where earlier curial wisdom unless competently over ruled binds the Court
The decisions cited 1054 before us start with the leading case in Mervyn Coutindo  Ors
vs Collector of Customs Bombay1 and closes with the last pronouncement in Badami vs State of Mysore  Ors
This time span has seen dicta go zigzag but we see no diffi culty in tracing a common thread of reasoning
However there are divergencies in the ratiocination between Mervyn Coutindo Supra and Govind Dattaray Kelkar  Ors
vs Chief Controller of Imports and Exports  Ors3 on the one hand and SG Jaisinghani vs Union of India4 Bishan
Sarup Gupta vs Union of India5 Union of India  Ors
vs Bishan Sarup Gupta6 and AK Subbraman  Ors
vs Union of India7 on the other especially on the rota system and the year being regarded as a unit that this Court may one day have to harmonize the discordance unless Government wakes up to the need for properly drafting its service rules so as to eliminate litigative waste of its servants  energies
In Mervyn Coutindo the validity of the rotational system as applied in fixing the seniority inter se between promo tees and direct recruits fell for decision in the context of the specific rule applicable to Customs  appraisers
One of the principles in the circular which contained the rules related to the comparative seniority of the two categories It provides  says the Court in summarizing the rule that relative seniority of direct re cruits and promotees shah be determined ac cording to the rotation of vacancies between direct recruits and promotees which shall be based on the quota of reservation for direct recruitment and promotion respectively in the recruitment rules
It was further explained that a roster should be maintained based on the reservation for direct recruitment and promotion in the recruitment rules
Where for example the reservation for each method is 50 per cent the roster will run as fol lows1 promotion 2 direct recruitment 3 promotion 4 direct recruitment and so on
Appointments should be made in accordance with this roster and seniority determined accordingly
A question has been raised whether the circular of 1940 to which we have already referred survived after this circular of 1959 but in our opinion it is unnecessary to decide that question for the circular of 1959 itself lays down that seniority shall be determined accordingly ie in accordance with the rotational system depending upon the quota reserved for direct recruitment and promotion respectively
It is this circular which according to the respondent has been followed in determining the seniority of Appraisers in 1963
 In the face of such a plain directive in the relevant rule regarding relative seniority for the solution of the problem that arises before us where such a seniority provision is absent and the relevant seniority 1  2 1976 1 SCR 815
3 1967 2 SCR 29
4  5 1975 Supp
SCR 491
6  7 1975 2 SCR 979
1055 provision is different Mervyn Coutindo supra cannot be of any assistance
That case is authority for the proposition it decides in the matrix of the special facts and rule therein
In view of the words of the Circular that senior ity as between direct recruits and promotees should be determined in accordance with the roster which has also been specified  the inextricable interlinking between quota and rota springs from the specific provision rather than by way of any general proposition
Mervyn Coutindo Supra cannot therefore rescue the respondents
Nor does the refer ence to a service  being divided into two parts derived from two sources of recruitment help Shri Garg s clients
The rule of carry forward  struck down in T Devadasan vs Union of India  Anr1 has no relevance to a situation where the whole cadre of a particular service is divided into two parts
Apart from the fact that it is doubtful whether Devadasan s case survives State of Kerala vs
NM Thomas  Ors
2 there is no application of the carry forward  rule at all in fact situations where two sources of recruitment are designated in a certain proportion and shortfalls occur in the one or the other category
In such a case what is needed is conformity to the prescription of the proportion and No question of carrying anything forward strictly arises
It is true that Mervyn Supra does not support the year by year intake as the yardstick but the reason is obvious the rule is specific
Kelkar Supra also dealt with the ratio prescribed as between direct recruits and promotees
Many grounds of attack were levelled there one of which was that the rota tional system would itself violate the principle of equal opportunity enshrined in the Constitution article 161 
The Court repelled this contention
Of course promotions made on an ad hoc basis confer no rights to the posts on the appointees as was clearly pointed out in that decision
In the instant case it is common ground that the appointments are not on a purely ad hoc basis but have been regularly made in accordance with the rules to fill substantive vacan cies except that the promotees have exceeded their quota direct recruits being unavailable
Kelkar supra stands on a different footing and hardly advances the position advanced by Shri Garg
Jaisinghani Supra which has had a die hard survival through Bishan Sarup Gupta vs Union of India3 and Union of India  Ors
vs Bishan Sarup Gupta4 if one may refer to
the two cases flowing out of Jaisinghani supra in that fashion has been referred to by both sides at the bar
It was relied on by Mr Garg for the strong observation of Ramaswami J that the absence of arbitrary power is the first essential of the rule of law upon which our constitu tional system is based
He has also drawn attention to the suggestion made in that decision to the  government that for future years the roster system should be adopted by framing an appropriate rule for working out the quota be tween direct recruits and the promotees  
We may straightway state that our Constitutional system is very allergic to arbitrary power but there is nothing arbitrary made out in the present case against the government
The second observation in 1  2  3 1975 Supp
SCR 491
4  1056 Jaisinghani Supra is of a suggestion that for future years the roster system linking up quota with rota may well be adopted by government
It is not the interpretation of any existing rule nor laying down of a rule of law so much so we cannot have any guideline therefrom to apply to the present case
The Government could no doubt if it so thought expedient frame a specific rule incorporating the roster system so as to regulate seniority
But we should not forget that seniority is the manifestation of official experience the process of metabolism of service over the years of civil servants by the Administration and there fore it is appropriate that as far as possible he who has actually served longer benefits better in the future
More over the search for excellence receives a jolt from the rule of equality and the State is hard put to it in striking a happy balance between the two criteria without impairment of administrative efficiency
Broadly speaking the Court has to be liberal and circumspect where the area is trickly or sensitive since administration by court writ may well run haywire
Moving on we may start off with the statement that the last case Badami Supra lays down the incontrovertibly harmless principle that quotas that are fixed are inaltera ble according to governmental exigencies
But there unlike here no saving provision as far as practicable  existed and here post 1966 promotees have to suffer a push down where their appointments are in excess of
the promotee quota
Nothing directly bearing on our controversy could be discerned by us in that decision
Gupta I Supra an off shoot of Jaisinghani Supra proceeds on the assumption that the quota is for a year
Whether the rule stated so or not that was probably the practice and there was nothing unreasonable in it
Even if the rule as such had expired it could according to that decision be followed as a guideline
Government had to follow some guiding principle and not be led by its fancy as each occasion arose
Palekar J expressed the view of the Court thus When the rule is followed as a guideline and appointments made a slight deviation from the quota would not be material
But if there is an enormous deviation other considerations may arise
 In the present case prior to 1963 there was departure from the quota system and that was sanctioned by the rule itself because of special circumstances
For subsequent periods if by taking the year as a unit there have been surplus promotees beyond their allocation even after taking into account impracticability of getting direct recruits upto 1966 when new statutory rules were enacted then such spill overs could and should as indicated by this Court be set off and absorbed in the later allocable vacancies the pro tempore illegal appointments being thus regularised
Of course appointees on an ad hoc basis are never clothed with any rights and have to quit when the exit time arrives but here there are none
In Gupta IISupra the Court ruled 1057 If there were promotion in any year in excess of the quota those promotions were merely invalid for that year but they were not invalid for all time
They can be regularised by being absorbed in the quota for the later years
That is the reason why this Court advisedly used the expression and onwards  just to enable the Government to push down excess promotions to later years so that these promotions can be absorbed in the lawful quota for those years
 Such is the essence of the two Gupta cases Supra
Law conceptualises anew every time life inseminates it with new needs and we have in Gupta the innovation of temporary invalidity of an appointment clinically dead but later resuscitated  Jurisprudence burgeons from the left neces sities of society
AK Subbaraman Supra relying on Gupta 11 Supra and going further has silenced the direct recruits with reference to the precise contention now urged by Shri Garg that rota being imbedded in the womb of the quota system their co existence could not be snapped
While quota and rota may constitutionally co exist their separation is also constitutionally permissible if some reasonable  way not arbitrary whim were resorted to
Even what is reasona ble  springs from sort of reflexes manifesting social sub consciousness as it were
Nothing absolutely valid exists and rationality and justice themselves are relative
Within these great mental limitations the Court S observations in Subbaraman Supra have to be decided
This brief and quick survey of decided cases and the submissions considered by us in the judicial crucible yield the following conclusions leaving aside the question of confirmation  in service which in the Gujarat set up leaves our controversy untouched a The quota system does not necessitate the adoption of the rotational rule in practi cal application
Many ways of working out quota  prescription can be devised of which rota is certainly one
b While laying down a quota when fill ing up vacancies in a cadre from more than one source it is open to Government subject to tests under article 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 proposed that there is no invalidity administrative tech nology may have free play in choosing one or other of the familiar processes of implement ing the quota rule
We as Judges cannot strike down the particular scheme because it is unpalatable to forensic taste
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
1058 d A periodisation is needed in the case to settle rightly the relative claims of promotees and direct recruits
1960 62 forms period A and 1962 onwards forms period
B Promotees 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 claim their whole length of service for seniority even against direct recruits who may turn up in succeeding peri ods
e Promotees 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 acquir ing new life when vacancies in their quota fall to be filled up
To that extent they will step down rather be pushed down as against direct recruits who were later but regularly appointed within their quota
On this basis the judgment of the High Court stands substantially modified but preparation of a new seniority list becomes necessitous
We set aside the judgment under appeal but direct the State Government to draw up de novo a gradation list showing inter se seniority  on the lines this judgment directs
The subject has been pending so long that very expeditious administrative finalisation is part of justice
Officials live in the short run even if Administra tions live in the long run
We direct the State to act quickly
Lack of adequate articulation of simple points regarding rotation and seniority and the amber light shed by case law on the questions raised warrant the direction that parties shall bear their costs throughout
The unlovely impact of these protracted and legalistic proceedings makes us epilogue an unusual step in a judg ment but pathetically necessitous for the renovation of the judicial process
Law is not a brooding omnipotence in the sky  nor a sort of secretariat asoterica known only to higher officialdom
But lengthy legal process where administrative immediacy is the desideratum is a remedy worse than the malady
The fact that the present case has taken around 5 working days for oral arguments is a sad commentary on the system which compels litigents to seek extra curial forums
Judge Brian Mokenna was right and the Indian judicial process needs systemic change since his wise words apply also to our judicature when he said The fault is that the rules of our procedure which by their discouragement of written argument make possible extensively protracted hearings in open court
Those re sponsible might think more of changing them
In civil cases a written argument supplemented by a short oral discussion would sometime s save a great deal of time To streamline and to modernise court management is a Cinderella subject in India as elsewhere
We conclude by repeating what Chief 1059 Justice Warran Burger of the US Supreme Court said in 1970 in his address to the American Bar Association In the final third of the century we are still trying to operate the courts with fundamentally the same basic methods the same procedures and the same machinery Roscoe Pound said were not good enough in 1906
In the super market age we are trying to operate the courts with craker barrel corner grocer methods and equipment vintage 1900
 We too have miles to go for law and justice to meet
PHP Appeal allowed


Summary:
The appellants are the promotee Deputy Collectors in the State of Gujarat
The contesting respondents are the direct recruits to the parent cadre of Deputy Collectors
7 Deputy Collectors who are the contesting respondents in this appeal and who were directly recruited as Deputy Collectors in and after 1963 claimed that they were senior to the appellants who were the promotees promoted as Deputy Col lectors between the years 1960 and 1963 by filing a Writ Petition in the High Court
The routine source of recruit ment to the posts of Deputy Collectors used to be Mamlatdars who were promoted as Deputy Collectors
In 1939 direct recruitment policy was also evolved for this post
By an order of 1941 the mode of determining seniority between direct recruits and promotees was settled
As far as the direct recruits were concerned their seniority was to run from the date of their appointment on probation and in the case of promotees such service was to begin with promotion in substantive vacancy if continued without break
During the year 1950 to 1959 the direct recruitment was discontin ued
By the Bombay Government Resolution dated 30 7 1959 the mode of direct recruitment was again started and the proportion in which the recruitment from the two sources namely the direct recruits and the promotees was fixed as 50 50 as far as practicable
On 1 5 1960 the Bombay State was bifurcated into Gujarat and Maharashtra
On 1 5 1960 a circular was issued by the Gujarat Government adopting the rules resolu tions notifications etc
of the Bombay State
By a further clarificatory resolution dated 27 5 1960 Gujarat Government provided that nothing contained in the circular dated 1 5 1960 shall apply to appointments of officers authorities or persons which may be made by the Government on or after 1 5 1960
During the year 1959 62no direct recruitment was made but many promotions were effected
The Writ Peti tion filed by the direct recruits was dismissed by a learned Single judge of the High Court
The Division Bench of the High Court however accepted the appeal of the con testing respondents
In an appeal by Special Leave the appellants contended 1
The expression as far as practicable  in the resolution of 1959 provides a sensible safety valve
Therefore the rule is neither exception proof nor abstractly absolute but realistic and flexibly true to life
The mandate of equality in Articles 14 and 16 does not require pushing down the promotees in the seniority list in the fact of their actual service and legal appointment
Rotation is not implicit in quota
Quota without rotation is also reasonable and constitutional as much as quota with rotation
The choice both being permissible and fair is left to the Administration
The contesting respondents contended i The rule of law is the enemy of arbitrary absolutism and the discretion to disobey is a doctrine of despotism and cannot be sub scribed to by a Court
1038 ii As far as practicable does not permit the State to deviate from it
It merely authorises provisional variations or ad hoc solutions or emergency arrangements to meet the difficulty of the Administration without making formal or regular appointments to the posts in question
iii Rotational system is implicit in quota
iv Any deviation from rotational system is violative of Articles 14 and 16 of the Con stitution
Allowing the appeal held 1
The State in tune with the mandate of the quota rule must make serious efforts to secure hands to fill half the number of vacancies from the open market
If it does not succeed despite honest and serious effort it qualifies for departure from the rule
If it has become non feasible imprac ticable to get the requisite quota of direct recruits having done all that it could it was free to fill the Post by promotion of suit able hands if the filling up of the vacan cies was administratively necessary and could not wait
The sense of the rule is that as far as possible the quota system must be kept up and if not practicable promotees in place of direct recruits or direct recruits in place of promotees may be inducted applying the regular procedures without suffering the seats to lie indefinitely vacant
1050 F H 1051 A 2
The Government sent a requisition for 12 posts of Deputy Collectors to the Gujarat Public Service Commission as early as in October 1960
On account of commission having raised various queries including require ments of adequate knowledge of Marathi and Gujarati the examination could not be held during the years 1960 1962
The expla nation given by the Government is prima facie good and not rebutted as got up
Since the Government took active steps in the direction of direct recruitment the excep tion to the Government Resolution comes into operation
The Government in the present case did all that it could
1051 A F 3
Quota is not inter locked with Rota
1052 A a The quota system does not necessitate the adoption of the rotational rule in practical application
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 from more than one source it is open to Government
subject to tests under article 16 to choose a year  or other period of the vacancy by vacancy basis to work out the quota among 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 imple menting the quota rule
We as Judges cannot strike down the particular scheme because it is unpalatable to forensic taste
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 consti tutionality tests being satisfied
d Promotees regularly appointed during period 1960 62 in excess of their quota for want of direct recruits can claim their whole length of service for seniority
e Promotees appointed in 1963 and onwards in excess of their quota should be pushed down and absorbed in vacancies in their quota during subsequent years
1057 E H 1058 A C 1039 Mervyn Coutindo  Ors
vs Collector of Customs Bombay 1967 3 SCR distinguished Badami vs Stale of Mysore  Ors
1976 1 SCR 815 distinguished Govind Dattaray Kelkar and Ors
vs Chief Controller of Imports and Exports  Ors
1967 2 SCR 29 distinguished and doubted
SG Jaisinghani vs Union of India 1967 2 SCR 703 distinguished
Bishan Sarup Gupta vs Union of India 1975 Supp
SCR 491 Union of India vs Bishan Sarup Gupta 1975 1 SCR 104 and AK Subbraman  Ors
vs Union of India 1975 2 SCR followed
The Court directed the Government to draw up expedi tiously a fresh seniority list in the light of the observa tions made in the Judgment
1058 H Obiter Lengthy legal process where administrative immediacy is the desideratum is a remedy worse than the malady
The fact that the present case has taken around 5 working days for oral arguments is a sad commentarY on the legal system
To streamline and to modernise Court manage ment is a cinderella subject in India as elsewhere
We too have miles to go for law and justice to meet