Appeal Nos 1173 to 1175 of 1976
Appeals by Special Leave from the Judgment and Order dated the 1 3 1975 of the Bombay High Court Nagpur Bench in Special Civil Application No 695 of 1971
LN Sinha Sol Genl MN Shroff for the Appellants in CA 117376 for R 3 in CA 117476 and 117576
MN Phadke V M Phadke and 4
G Ratnaparkhi for RR
J and 2 in CA 117376 and CAs
1174 7576
Nilofer MrsBhagwat SC Agrawal and V J Fran cis for R 5 in CA 1174 and 117576
VJ Francis for RR
No 6 in CA 117576
The Judgment of the Court was delivered by SINGHAL J
These appeals arise out of a judgment of the Bombay High Court dated March 11 1975 by which the High Court quashed that part of Government resolution dated January 15 1970 which holds that the respondents Nos
3 to 5 should not be compelled to go back to their respective lists
and which gives a further option to these three respondents to indicate whether they wanted to go back to the department of History
 The High Court has further held that the writ petitioners will be entitled to be considered for promotion to Class I posts in the department of Politi cal Science and the seniority of respondents Nos 3 to 5 will be considered in the seniority list relating to the Department of History
The controversy arose because of a writ petition filed by Bhalchandra Khanderao Joshi and Padmakar Siddhanath Kane
Both of them were members of the Maharashtra Educational Service Class II Collegiate Branch
Bhalchandra Khande rao Joshi was MA in Political Science as well as in History
He was appointed Lecturer in Political Science in 1958 and was confirmed in that capacity
Padmaliar Siddhanath Kane passed MA Examination in Political Science in 1956 and was appointed Lecturer in Political Science in 1958
He was also confirmed on that post
Both of them filed a writ 784 petition and challenged the resolution of the State Govern ment in the Education and Social Welfare Department No SCP No 1064 D dated January 15 1970 in pursuance of which respondents Smt
KA Parekh SA Bari and Smt
RS Dossal were promoted as Professors of Political Science and were given the option to opt for the History or the Political Science department
It may be mentioned that after the reorganisation of States a combined seniority list was prepared on November 1 1956 for History and Political Science teachers
In that list respondent No 3 was shown at serial No 3 and respondent No 4 at serial No 5
One SR Nanekar was appointed as Lecturer in Political Science on June  26 1954
Respondents Nos 3 and 5 were MA in History
It was not disputed in the High Court that Political Science was not a separate subject until 1956 in Bombay because out of the eight papers for post graduation in History four were in Political Science
KA Parekh was MA in History and was recruited as Lecturer on August 5 1946
She however taught both History and Political Science upto 1963 when she was appointed officiating Professor of Political Science on February 27 1963
Dr SA Bari was recruited as Lecturer in History on October 1 1947
He was thereafter promoted as Professor in that subject
MG Sonnal who was MA in History was appointed as Professor of Political Science
R S Dassal was recruited as Assistant Lecturer in History on August 5 1946 and taught both History and Political Science upto 1956
Thereafter she taught only Political Science and was promoted as Profes sor in that subject in 1968
She was confirmed in that capacity in 1972
These facts are quite sufficient for purposes of the present appeals
The controversy relates to the question whether the Director of Education Maharashtra State had the authority to issue the letter dated August 20 1963 which was ad dressed to all the Principals of he Government Colleges
It was stated by the Director in that letter as follows It has been decided to amalgamate the two lists of lecturers in History  and Political Science  and to combine the two lists under the common subject of History  and Political Science 
The revised seniori ty list so prepared is enclosed herewith
Please bring this decision of Government to the notice of the officers concerned
 The Director thus conveyed the decision to amalgamate the lists of
Lecturers in History and Political Science and to prepare a single seniority list for both the subjects
It was expressly stated in the letter that it had been issued in pursuance of the decision of the State Government
A revised seniority list was therefore prepared in which respondent No 3 was placed at serial No 4 respondent No 4 at serial No 5 and SR Nanekar at serial No 7
Nanekar challenged that order in the High Court by Special Civil Application No 120 of 1964 mainly on the ground that when two separate seniority lists had been prepared for the
departments of History and Political Science 785 in accordance with the earlier Government Order of 1960 the new list was invalid
The High Court however took the view that the existence of the Government resolution dated February 27 1963 which was said to be the authority for the issue of the Director s letter dated August 20 1963 had not been proved
It therefore held that there was no such resolution or order requiring the preparation of a combined seniority list
It decided that the earlier order of 1960 requiring the preparation of separate lists for History and Political Science continued to be opera tive and that as Nanekar could not claim to be the senior most person in his department he had no cause of action
It therefore dismissed the writ petition
The High Court in the present case went by the deci sion in Nanekar s case and held that there was no order or decision dated February 27 1963 so that the action of amalgamating the lists of History and Political Science departments was invalid
The High Court made a reference to the Director s letter dated July 27 1967 asking the Principals to forward information in the prescribed pro forma in respect of those Professors and Lecturers of Histo ry in their respective colleges who were qualified to teach Political Science and had been recognised therefore
It also made a reference to the impugned resolution dated January 15 1970 which reads as follows A decision was taken by Government in the year 1963 to amalgamate the lists of Lecturers in History  and Lecturers in Political Science  into one common list of Lecturers in History and Political Science 
According ly a combined seniority list was prepared with reference to the date of appointment of the officer concerned in the MES Class 11 irrespective of the fact as to whether the Lecturers are qualified in both the subjects of History and Political Science or in any one of the two
The decision to amalgamate the two lists into one was taken because it was noticed that some of the Lecturers in the seniority list of the subject History also possessed the qualifications in the subject Political Science
Similarly some of the Lecturers in Political Science possessed the qualifications in History
But they were not considered eligible for appointment to a post of Professor in a subject other than the subject under which their names were included in the seniority list of their subject
In order to remove this anomaly decision to amalgamate the seniority lists of Lecturers in History and Political Science and to make appointment to the posts of Professors on the basis of the combined seniority list in the subjects of History and Political Science was taken by Government
However in view of the difficulties experienced with regard to the implementation of the decision of Government referred to above Government on reconsideration decided in the year 1967 to revert to the old practice of having separate seniority lists of Lecturers for the two subjects
 History  and Political Science 
786 2
Some of the teaching members of the Department of History brought to the notice of Government that in the western Maharashtra formerly there were no separate posts for Political Science as Political Science did not exist as distinct subject
All teachers were designated as Lecturers Professors in History but they used to teach the subject Political Science also
The question of giving option to those LecturersProfessors who were qualified to teach both the sub jects viz History and Political Science and recognised as such to elect either of the two subjects was under consideration of Government for some time past
While re verting to the decision to split up the combined seniority list of History and Polit ical Science Government considers that those who were promoted to the posts of professors on the basis of the combined seniority list should not be compelled to go back to their respective lists
Government has now decided that an option should be given to those LecturersProfessors of the Old Bombay State who were recruited as LecturersProfessors of History but have been recognised as teachers of Political Science and also those who have been promoted to the posts of Professors in MESC II Collegiate Branch on the basis of the combined seniority list to elect either of the two Departments viz Histo ry  or Political Science 
Accordingly the concerned LecturersProfessors were asked to exercise their option
The following offi cers have opted for their being treated as belonging to the Department of Political Science i Smt
KA Parekh Officiating Profes sor of Political Science I Y College Jogeshwari
ii Shri SA Bari Officiating Profes sor of History Government Arts and Science College Aurangabad
iii Smt
RS Dossal Officiating Pro fessor of Political Science Elphistone Col lege Bombay
The option exercised by these officers have been accepted by Government and their senior ity in the Department of Political Science should be as shown in the accompanying state ment Emphasis added
It therefore gave option to respondents Nos
3 to 5 to go back to the department of History or not and stated further that the option had been accepted and their seniority finalised in the Political Science department
It is this resolution of the Government dated January 15 1970 which has been challenged in the present petition
The reason is that if respondents Nos 3 to 5 had not been given the option to continue in the Political Science department the petitioners would have been promoted to a Class I Post
They have stated that they would then not have been deprived of that chance in violation of article 16 of the Constitu tion
787 Respondents Nos 4 and 5 did not enter appearance in the High
Court but it was urged on behalf of respondent No 3 that in view of the curriculam for the Master s degree in History upto 1956 a person obtaining the Master s degree in History was equally qualified to teach Political Science
It was also urged that the respondent taught Political Science and had been recognised by the University as a teacher of Political Science
The High Court examined the effect of the Government resolution dated January 15 1970 and held that in the absence of the earlier resolution dated February 27 1963 the Director of Education was not compe tent to combine or amalgamate the seniority lists of the History and Political Science departments
It assumed that legally there was no amalgamation at all and any action taken on the basis of such amalgamation would also consequently have to fall on the ground In that view of the matter the High Court held that promotions were not permissible on the basis of the combined list
It accord ingly held that the Government resolution dated January 15 1970 proceeded on a misapprehension that the respondents
had been promoted as Professors on the basis of the combined seniority list which was itself invalid
The High Court held that there was no valid reason why persons who were qualified in the Department of Political Science itself could be prevented from having their names considered for the post of Professor in Class I That led the High Court to hold further that the option which was given by the resolution dated January 15 1970 had the effect of perpetu ating the effect of the working of the invalid list and amounted to violation of article 16 of the Constitution
This is why the State of Maharashtra Smt
KA Parekh and Smt
RS Dossal have come up in appeal by special leave to this Court
The controversy therefore is whether the State govern ment passed
the aforesaid resolution dated February 27 1963 to amalgamate the lists of Lecturers in History and Political Science as stated in the Director s aforesaid letter dated August 20 1963 or whether there was no such resolution and the Director s order was unauthorised  The High Court has taken the view that as no attempt was made to produce the resolution dated February 27 1963 in Nanekar s case there was no such resolution at all
On that basis it held that the Director had no authority to take the decision to amalgamate the lists
We find however that in taking that view  the High Court lost sight of the intrinsic evidence which was available on the record to prove beyond doubt that Government had passed the aforesaid resolution dated February 27 1963 to amalga mate the two lists
We have extracted the Government reso lution dated January 15 1970 and the underlined portions thereof clearly show that the Government itself reiterated the fact that a decision was taken by Government in the year 1963 to amalgamate the lists of Lecturers in History and Lecturers in Political Science into one common list of Lecturers in History and Political Science
 It has further been stated in that resolution of the Government that accordingly a combined seniority list was prepared with reference to the date of appointment of the 788 officer concerned in the MES Class 11 irrespective of the fact as to whether the Lecturers are qualified in both the subjects of History  and Political Science  or in any one of the two
The reason for taking that decision to amalgamate the two lists has also been stated in the reso lution
Then it has been stated that in view of the difficulties experienced with regard to the implementation of the decision of Government referred to above the Government on reconsideration had decided to revert to the old practice of having separate seniority lists of Lecturers of History and Political Science
It has also been stated that the decision had been taken for reverting to the decision to split up the combined seniority list which formed the basis of promotion of some of the teachers
It would thus appear that the resolution dated January 15 1970 repeatedly refers to the earlier decision of the State Government of 1963 for amalgamating the lists states the reason for the amalgamation makes a mention of the diffi culties experienced in the implementation of that decision and gives the reasons for the government s decision to revert to the old practice of having separate seniority lists
As it was not challenged in the High Court that the resolution dated January 15 1970 was genuine the High Court should have taken notice of its intrinsic evidentiary value for the purpose of proving the earlier resolution dated February 27 1963
If it had done so it would have inevitably reached the conclusion that the Government had really decided in 1963 to amalgamate the lists and that the Director had rightly conveyed that decision in his order dated August 201963 and it was therefore an authorised communication
In fact the Director specifically stated in that order that the decision of Government to amalgamate the two lists had to be
brought to the notice of all concerned
The combined seniority list was therefore fully authorised and there was nothing wrong if it formed the basis of the promotions which were given to the persons mentioned above
We have no doubt that the High Court did not read the relevant document carefully and that was why it arrived at a contrary conclusion
The resolution dated January 15 1970 shows that as the Government had decided to split up the seniority list for the department of  History and Political Science it thought it desirable to
give an option to those LecturersPro fessors of the old Bombay State who were recruited as LecturersProfessors of History but were recognised by the University as teachers of Political Science to elect for either of the two departments
No exception can be taken to that decision to give  the option to the LecturersPro fessors concerned for in the absence of such an option they would have been deprived of the opportunity of express ing their desire to serve in the one or the other department on the basis of their experience and prospects of promotion
It was to be appreciated that the decision to amalgamate the seniority lists of the two departments was not taken in consultation with them and if they were required to
teach History or Political Science and were promoted as Profes sors of History or Political Science on the basis of a combined seniority list for which
they themselves were not responsible it would have been unfair if they had been required to serve in another department by a unilateral executive fiat
789 It may be mentioned that Mr Phadke tried to argue that even if the resolution dated January 15 1970 were held to be valid it would not be permissible for the teachers concerned to take advantage or  it because they did not fulfill its requirements
We do not find any merit in this argument
As has been stated those teachers were promoted to posts of Professors on the basis of the combined list they were recognised as such teachers by the Univer sity and were recruited initially as Lecturers in History
They were therefore entitled to take the benefit of the resolution dated January 15 1970 as there is nothing wrong with it
We have no doubt that in the facts and circum stances mentioned above there could be no justification for the view taken by the High Court that there was violation of article 16 of the Constitution
The appeals are allowed the impugned judgment of the High Court dated March 11 1975 is set aside and the writ petition is dismissed
The State of Maharashtra will pay the costs of respondents Nos 1 and 2 Bhalchandra K Joshi and Padmakar Sidharath Rao in Special Leave Petition No 915 of 1976 as directed by this Court October 8 1976


Summary:
After the reorganisation of the States a separate sen iority list was prepared by the State of Bombay for History and Political Science teachers
On 2081963 the Director of Education issued a letter conveying the decision of Government to amalgamate the list of lecturers in History and Lecturers in Political Science and to prepare a single seniority list for both the subjects
It was expressly stated in the letter that it was issued in pursuance of the decision of the State Government
Thereafter a revised seniority list was prepared
One Nanekar filed a writ petition in the High Court challenging the said order on the ground that when two separate seniority lists had been prepared for the departments of History  Political Science in accordance with the earlier Government Order of 1960
the new list was invalid
The High Court took the view that the existence of the Government resolution dated 2721963 which was said to be the authority for the issue of Direc tor s letter dated 2081963 had not been proved
It therefore held that there Was no such resolution or
order requiring the preparation of a combined seniority list
It decided that the earlier order of 1960 requiring the prepa ration of separate list of History and Political Science continued to be operative
It however dismissed the writ petition filed by Nanekar on the ground that he could not claim to be the seniormost person in his department In the present writ petition filed by BK Joshi and PS Kane the High Court followed its decision in Nanekar s case and held that there was no order or decision dated 2721963 so that the action of amalgamating the list of  History and PoLit ical Science departments was invalid
A resolution was taken on 1511970 in which it was mentioned that the earli er decision to amal gainate the two categories was given up on account of the difficulties which were experienced and an option was given by the 1970 resolution in order to obviate those difficulties
That resolution was challenged in the present proceedings
The High Court examined the effect of the Government Resolution dated 1511970 and held that in the absence of the earlier resolution dated 2721963 the Director of Education was not competent to combine or amal gamate the seniority lists of History and Political Science Departments
It assumed that legally there was no amalga mation at all and any action taken on the basis of the amalgamation would also consequently have to fall on that ground
The High Court held that the option given by the 1970 resolution had the effect of perpetuating the effect of the working of the invalid list and amounted to violation of article 16 of the Constitution
The High Court held that in Nanekar s case no attempt was made to produce the resolution of 2721963 Allowing the appeals Held 1 The High Court erred in observing that the resolution of 2721963 did not exist
The High Court lost sight of the intrinsic evidence which was available on the record to prove beyond doubt that Government had passed the resolution on 2721963 to amalgamate the two lists
In the 1970 resolution the Government itself reiterated the act that a decision was taken by Government in the year 1963 to amalgamate the lists of Lecturers in History and the Lecturers in Political Science into one common list
The reason for taking that decision to amalgamate the two lists was also stated in that resolution  In fact the 1970 reso lution made a mention of the difficulties experienced in working the 1963 resolution and that was why it was decided to revert to the decision to split up the combined seniority list which formed the basis of promotion of some of the teachers
As the genuineness of the resolution of 1970 was 783 not challenged the High Court ought to have taken notice of its intrinsic evidentiary value for the purpose of proving the earlier resolution of 1963
In fact the Director in his order specifically stated that the decision of the Government to amalgamate the two lists had to be brought to the notice of all concerned
The combined seniority list was therefore fully authorised and there was nothing wrong if it formed the basis of the subsequent promotions
787 G H 788 A E 2
No exception could be taken to the decision of the Government to give option to the Lecturers to elect either of the two departments
The decision to amalgamate the seniority lists of the two departments was not taken in consultation with them and if they were required to teach History or Political Science and were promoted as Professor of History or Political Science on the basis of combined seniority list for which they themselves were not responsi ble it would have been unfair if they had been required to serve in another departmeat by a unilateral executive fiat