Case: Ramchandra Shankar Deodhar &amp; Ors Vs. The State Of Maharashtra &amp; Ors

the efficiency of the police force of these ranks and is designed with that object" On this reasoning the Court negatived the constitutional challenge to the validity of the system of promotion. 17. It will be seen from this analysis of the reasoning of the decision in Ram Sarans case, (1964) 7 SCR 228 = (AIR 1964 SC 1559 ) that far from negativing the contention of the petitioners, it goes a long way towards supporting it. In Ram Sarans case the cadre of Sub-Inspectors was a range cadre and promotion to that cadre in each range was made on the basis of select list of approved Head Constables from that particular range. This mode of promotion which confined promotions from Head Constables to Sub-Inspectors within the range was upheld by this Court because it was calculated to make available the advantage of local knowledge in a post where such local knowledge would be useful in promoting the interest of administrative efficiency of the police force. But the basic feature underlying this mode of promotion was, and that is vital to the understanding of the true ratio of this decision, that in respect of promotion to the range cadre of Sub-Inspectors all the Head Constables in the rangewere eligible for being considered and promotion to such range cadre was made on the basis of rangewise selection list prepared by taking into account the relative merits ofall the Head Constables in the range. Every Head Constable in the range had, therefore, equal opportunity of promotion to the range cadre of Sub-Inspectors. Here in the present case, however, as we have already pointed out above, the procedure adopted by the State Government provided for promotion to the State cadre of Deputy Collectors, not on the basis of State wise select list, but on the basis of divisional select lists of Mamlatdars. This is a very vital point on which the mode of promotion in the present case differed from that in Ram Sarans case, (1964) 7 SCR 228 = (AIR 1964 SC 1559 ). If the cadre of Deputy Collectors had been a divisional cadre, there would have been no objection in providing that the promotion to that cadre shall be divisionwise on the basis of divisional select lists. Then the analogy in Ram Sarans case, would have been complete. But here the cadre of Deputy Collectors was admittedly a State cadre and not a divisional cadre and divisionwise promotion to such cadre on the basis of divisional select lists could not, therefore, be justified on the ratio of the decision in Ram Sarans case.It may be noticed that in Ram Sarans case, in regard to promotion to the State cadre of Inspectors, the procedure followed was to have a Statewise select list of approved Sub-Inspectors from all over the State and to make promotion to the State cadre of Inspectors on the basis of such Statewise select list. The promotion to the State cadre of Inspectors was not made rangewise on the basis of separate select lists of Sub-Inspectors of each range. If that had been done, and upheld by this Court, the argument of the respondents would have been almost unassailable. But the promotion to the State cadre of Inspectors was on a Statewise basis. The ratio of the decision in Ram Sarans case, does not, therefore, support the contention that promotion to a State cadre can be made on the basis of divisional select lists. On the contrary, it suggests that if the cadre is a divisional cadre, there can be divisionwise promotion on the basis of divisional select lists, but if it is a State cadre, promotion must be on Statewide basis so that every officer in the State has equal opportunity of promotion to the State cadre. Ram Sarans case, therefore, impliedly supports the view which we have taken on a priori reasoning. The respondents faintly attempted to argue that in the present case there was an intermediate cadre of officiating Deputy Collectors between the cadre of Mamlatdars and the cadre of Deputy Collectors and promotion from the cadre of Mamlatdars lay to the cadre of officiating Deputy Collectors and it was from the cadre of officiating Deputy Collectors that one could obtain promotion to the cadre of Deputy Collectors. The cadre of officiating Deputy Collectors was a divisional cadre, and therefore, promotion to it was divisionwise on the basis of divisional select lists, while the cadre of Deputy Collectors was a State cadre and hence promotion to it was Statewide on the basis of the combined seniority list of all officiating Deputy Collectors in the State. This was in accord with the pattern of promotion in Ram Sarans case, (1964) 7 SCR 228 = (AIR 1964 SC 1559 ) and was, therefore, valid. This contention of the respondents is without force. The premise on which it is founded is incorrect. It is wholly contradicted by the Rules of 30th July, 1959 which are admittedly statutory rules. These Rules provide that appointment to 50% of the posts of Deputy Collectors shall be made by" promotion of suitable. Mamlatdars". The promotion that is spoken of in these Rules is promotion from the cadre of Mamlatdars to the cadre of Deputy Collectors. These Rules completely negative the existence of any intermediate cadre of officiating Deputy Collectors. It is difficult to see how in the face of these Rules which have statutory effect,it can ever be contended that promotion to the cadre of Depty Collectors was not from the cadre of Mamlatdars but from the so-called cadre of officiating Deputy Collectors.Of course it is true that a Mamlatdar cannot be promoted to the cadre of Deputy Collectors unless he has first officiated as Deputy Collector, but when he is promoted, it is from the cadre of Mamlatdars and not from any supposed cadre of officiating Deputy Collectors. In fact there is no legislative rule or executive order providing for the creation of such an intermediate cadre of officiating Deputy Collectors.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]Here, as admitted by the State Government in paragraph 55 of the affidavit in reply, all promotions that have been made by the State Government are provisional and the position has not been crystallised to the prejudice of the petitioners. No rights have, therefore, accrued in favour of others by reason of the delay in filing the petition. The promotions being provisional, they have not conferred any rights on those promoted and they are by their very nature liable to be set at naught, if the correct legal position, as finally determined, so requires. We were also told by the learned counsel for the petitioners, and that was not controverted by the learned counsel appearing on behalf of the State Government, that even if the petition were allowed and the reliefs claimed by the petitioners granted to them, that would not result in the reversion of any Deputy Collector or officiating Deputy Collector to the post of Mamlatdar/Tehsildar;the only effect would be merely to disturb their inter se seniority as officiating Deputy Collectors or as Deputy Collectors Moreover, it may be noticed that the claim for enforcement of the fundamental right of equal opportunity under Art. 16 is itself a fundamental right guaranteed under Article 32 and this Court which has been assigned that role of a sentinel on the qui vive for protection of the fundamental rights cannot easily allow itself to be persuaded to refuse relief solely of the jujune ground of laches, delay or the likeThis contention is also without force, and for three very good reasons.In the first place, it is difficult to see how the petitioners could have applied for review of the judgment of the Bombay High Court in Kapoors case. The petitioners were not persons directly and 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 judgment was given, as was the case in AIR 1963 SC 1909  . The petitioners had, therefore, no locus to apply for review of that judgment. Secondly the subject matter of the present petition is, barring only one question which is common, namely, the question as to the validity of the second proviso to rule 1 of the Rules of 30th July, 1959, wholly different from that of the petition in Kapoors case, and asking for review of the judgment in Kapoors case would be no remedy at all so far as the reliefs claimed in the present petition are concerned.Lastly, the remedy by way of review of a judgment given in another case in which the petitioners are not parties can hardly be said to be an adequate alternative legal remedy available to the petitionersThose who are already promoted according to the impugned procedure and whose position vis-a-vis the petitioners would be likely to be affected by the invalidation of such procedure are before the Court as parties to the petition. Only those Mamlatdars/Tehsildars are not made parties to the petition who are not promoted as officiating Deputy Collectors or who are, even on the basis of the promotions made under the impugned procedure junior to the petitioners. But these Mamlatdars/Tehsildars are not necessary parties to the petition, as they would not be adversely affected vis-a-vis the petitioners even if the impugned procedure were held to be invalid. All those who are necessary parties are before the Court and there is, therefore, no impediment in the way of the Court proceeding to decide the questions raised for its determinationWe fail to see how either of the two Government Resolutions dated 21st November, 1941 and 29th July, 1963 comes into the picture in determining the seniority of the petitioners qua other allocated Mamlatdars-Tehsildars as on 1st November, 1956. The inter se seniority of the Tehsildars and Mamlatdars allocated from the former States of Hyderabad, Madhya Pradesh, Bombay, Saurahstra and Kutch to the reorganised State of Bombay as on 1st November, 1956 would be governed by Rules 7, 8 and 9 of the Rules of 1957, and neither the Government Resolution dated 21st November, 1941 nor the Government Resolution dated 29th July, 1963 would have any application. Prayer II of the petition must accordingly be rejectedSo far as the question of validity of the second proviso to R. 1 of the Rules of 30th July, 1959 is concerned, there can be no doubt that the Bombay High Court was right in declaring it to be invalid. It can hardly be disputed that both the directly recruited Mamlatdars as well as the promotee Mamlatdars from one class. They are both known by the same designation. They have same scales of pay. They 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 Mamlatdars and promotee Mamlatdars in the matter of further promotion to the posts of Deputy Collector. That would be violative of Art. 16 of the Constitution. This is abundantly clear from the decisions of this Court in Mervyn Continho v. Collector of Customs, Bombay, (1966) 3 SCR 600   = (AIR 1967 SC 52  ) and S. H. Pandit v. The State of Gujarat, AIR 1972 SC 252   = (1972 Lab IC 155).In fact S. M. Pandits case is directly in point. The facts of the present case are almost indistinguishable from S. M. Pandits case. The second proviso to Rule 1 of the Rules of 30th July, 1959 must consequently be held to be bad as being in conflict with Art. 16 of the ConstitutionIn fact we find legislative recognition of the constitution of divisional cadres of Mamlatdars in the Rules of 19th November, 1959 which are admittedly statutory rules made under the proviso to Article 309 of the Constitution. The proviso to Rule 1 proceeds on the basis that the cadre of Mamlatdars is a divisional cadre and in reference to each divisional cadre, goes on to provide that one half of the vacancies shall be filled by nomination and one half by promotion, except in case of divisional cadre of Nagpur division where this provision would not apply until after all persons recruited as Naib Tehsildars are either promoted as Mamlatdars or rejected as not to be so promoted. There can, therefore, be no doubt that right from 1st November, 1956 the cadre of Mamlatdars was a divisional cadre and not a State cadre. It is equally clear from the Government Resolution dated 1st November, 1956 as well as the affidavits that the cadre of Deputy Collectors was a State cadreThe procedure followed for the purpose of preparing the combined seniority list was as follows: In the first place "deemed dates of continuous officiation were given to the officiating Deputy Collectors from each division with a view to ensuring that their inter se ranking in the divisional select list was not affected by the fact that an officer lower in rank in the divisional select list might have been officiating as Deputy Collector for a longer period than another in higher rank. This was done by providing that the officer who was highest in the rank in the divisional select list should be given the date of continuous officiation of the officer who had the longest period of officiation as Deputy Collector and the officer next to him in rank should be given the date of continuous officiation of the officer who had officiated next longest as Deputy Collector and so on till the dates of continuous officiation of all officers were adjusted so as to reflect their inter se seniority in the divisional select list. Thus, if A, B and C were officiating Deputy Collectors in a division having 1st January, 1960, 1st July, 1960 and 1st January, 1961 respectively as their dates of continuous officiation and in the divisional select list their ranking was first C. second B and last A, their deemed dates of continuous officiation would be 1st January, 1960 for C, 1st July, 1960 for B and 1st January, 1961 for A. Then on the basis of the deemed dates of continuous officiation given to the officiating Deputy Collectors in the each division, a combined Statewise seniority list of officiating Deputy Collectors was prepared and confirmations in the cadre of Deputy Collectors were made in accordance with the seniority in such combined Statewise seniority list. This was the procedure followed by the State Government and it has to meet the challenge of Art. 16 of the Constitution15.Now, it is clear that this procedure suffers from a serious infirmity in that it provides for promotions to the State cadre of Deputy Collectors to be made on the basis of divisional select lists. That clearly amounts to denail of equality of opportunity to Mamlatdars in the State in the matter of promotion to the cadre of Deputy Collectors.If a Mamlatdard aspires to be promoted to the cadre of Deputy Collectors which is the next higher cadre of promotion for him, he has to be promoted first as officiating Deputy Collector. It is only after he is promoted as officiating Deputy Collector that he can become eligible to be confirmed in the cadre of Deputy Collectors. But, in order to be promoted as officiating Deputy Collector, he has to wait until a vacancy occurs in the post of Deputy Collector in his division. Even if he is senior to a Mamlatdar in another division and more suitable, he cannot be promoted to officiate in a vacancy which arises in the other division. His opportunity for promotion is limited to a vacancy in his own division. The consequence is that if a vacancy in the post of Deputy Collector arises earlier in one division, a Mamlatdar in the select list of that division would get promoted as officiating Deputy Collectorearlier than a Mamlatdar in another division where a vacancy in the post of Deputy Collector arises later and, subject to the operation of the rule of deemed dates of continuous officiation, that would mean that the former would gain entry in the cadre of Deputy Collectors earlier than the latter, even though the former may be junior and less suitable than the latter.The entry in the cadre of Deputy Collectors is thus made to depend not on the assessment of the relative merits of a Mamlatdar vis-a-vis the other Mamlatdars in the State, but on the fortuitous circumstances as to when a vacancy in the post of Deputy Collector arises in the division to which the Mamlatdar belongs. This is clearly violative of the equal opportunity clause because it is wholly unrelated to the object and purpose of promotion which is to secure an efficient cadre of Deputy Collectors and in fact negates it. It must be remembered that the cadre of Deputy Collectors is a State cadre and for promotion to such State cadre every Mamlatdar must have equal opportunity to be considered. Where promotion is made by selection on the basis of merit-cum-seniority, every Mamlatdar should be able to enter the lists; he should have equal opportunity with others for being considered for promotion. There must be one common door for entry into the cadre of Deputy Collectors through which every Mamlatdar should be equally entitled to enter, provided he is selected on the application of the principles of merit-cum-seniority. There cannot be six doors of entry, one door available exclusively for the Mamlatdars of each division. That is bound to create inequality of opportunity in the matter of promotion. It is true that confirmations in the cadre of Deputy Collectors are made on the basis of combined seniority list of officiating Deputy Collectors, but that does not cure the infirmity in the mode of promotionThe giving of deemed dates of continuous officiation no doubt reflects the relative merits of the Mamlatdars in each division taken as a separate unit, but it does not seek to adjust the seniority of the approved Mamlatdars in all the divisions taken as a whole on the basis of assessment of their relative merits.It does not, therefore, eliminate the inequality of treatment which inheres at the initial stage of promotion as officiating Deputy Collectors. The vice on inequality of opportunity continues to inhibit promotions to the cadre of Deputy Collectors. The procedure followed by the State Government in making promotions must, therefore, be held to be violative of Art. 16 of the ConstitutionThe promotion that is spoken of in these Rules is promotion from the cadre of Mamlatdars to the cadre of Deputy Collectors. These Rules completely negative the existence of any intermediate cadre of officiating Deputy Collectors. It is difficult to see how in the face of these Rules which have statutory effect,it can ever be contended that promotion to the cadre of Depty Collectors was not from the cadre of Mamlatdars but from the so-called cadre of officiating Deputy Collectors.Of course it is true that a Mamlatdar cannot be promoted to the cadre of Deputy Collectors unless he has first officiated as Deputy Collector, but when he is promoted, it is from the cadre of Mamlatdars and not from any supposed cadre of officiating Deputy Collectors. In fact there is no legislative rule or executive order providing for the creation of such an intermediate cadre of officiating Deputy Collectors19. Before we part with this case we may add a paragraph by way of epilogue. We find in the course of our judicial experience, and we notice this fact with some apprehension that members of public services in alarmingly large numbers resort to legal remedies in courts of law for agitating their grievances in regard to service matters. This phenomenon is symptomatic of a sense of injustice and subversive of that undivided and devoted attention of official duties which is so essential for efficient and any dynamic functioning of the Government. It can, therefore, hardly be overemphasised that there is great need for simplifying and streamlining service rules and giving them statutory shape so as to promote contentment among the services by extending the areas of equal treatment and imparting stability to conditions of service. It is not desirable that the fortunes of such a vital and strategic instrument of Government as the public services should be left to be governed by mere departmental resolutions and executive instructions. These cannot take the place of statutory rules which alone can impart stability and security and ensure observance of the rule of law. Legal rules must govern the recruitment and conditions of public servants so that there is no arbitrariness or inequality in State action in regard to them and the rule of law is not eroded. And such rules should preferably be framed without avoidable delay and after consultation with groups which apprehend discriminatory treatment as that would go a long way to produce a sense of contentment and satisfaction. We make these observations not with a view to casting any reflection on the administration but to highlight a problem which has come to our notice quite often, in the hope that it will help appreciate the social dimensions of the problem and the damage to public interest which may be likely to result if the problem is not promptly and satisfactorily resolved.