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

2. Prior to the reorganisation of the States, which took place on 1st November, 1955 by virtue of the provisions of the States Reorganisation Act, 1956, the petitioners were confirmed Tehsildars in the quondam State of Hyderabad which was then a Part B State. The Rules of recruitment to the posts of Tehsildar which prevailed in the erstwhile State of Hyderabad provided that 1/3rd of the number of posts shall be filled by promotion from the lower ranks while the remaining 2/3rd shall be filled by direct recruitment on the basis of the result of competitive examination. The petitioners belonged to the latter category of directly recruited Tehsildars. The next higher cadre above that of Tehsildars was the cadre of the Deputy Collectors and recruitment to that cadre was governed by a notification issued by the Rajpramukh of Hyderabad State on the 15th September, 1955. This notification provided that all the vacancies of the cadre of Deputy Collectors shall be filled "only by promotion by selection from the cadre of Tehsildars. It was common ground between the parties that both the cadres of Tehsildars as well as Deputy Collectors were state cadres3. On 31st August, 1956 the Parliament enacted the States Reorganisation Act, 1956 and that Act brought about reorganisation of almost all the States in India with effect from the appointed day, namely, 1st November, 1956. The fasciculus of sections in Part II of the Act altered the territories of the existing States of Madras and Andhra Pradesh and brought into being various other new States. We are concerned here only with the formation of the new State of Bombay and we will, therefore, confine our attention to that Section 8 constituted a new State Bombay with territories drawn from various existing States, namely, Bombay, Hyderabad, Madhya Pradesh, Saurashtra and Kutch. The old State of Bombay ceased to exist and a new State of Bombay with considerably enlarged territories came into being. Since the new State of Bombay comprised territories coming from different existing States, that was naturally bound to give rise to new and complex problems of administration, particularly in the context of increased tempo of developmental activities including land reform measures and the necessity of integrating the services, introducing a unified pattern of administration and unifying the laws in the different territories brought together to form the new State of Bombay. The Government of Bombay, therefore, issued a Resolution, dated 1st November, 1956, dividing the territories of the new State into six divisions and placing each Division in the charge of a Divisional Officer. The territories of former Saurashtra and Kutch States were grouped together in Rajkot Division, the territories drawn from the former Bombay State, save the District of East Khandesh, in Ahmedabad, Bombay and Poona Divisions, the territories drawn from the former State of Madhya Pradesh in Nagpur Division and the territories drawn from the former Hyderabad State with the addition of East Khandesh District in Aurangabad Division. Since the service personnel from these different territories came to be allocated to the new State of Bombay, they had all to be fitted in to form a compact and homogeneous service, and it was, therefore, necessary to decide where and at what place they should be adjusted in the constitution of the new service. This process necessarily involved equation of posts, absorption of service personnel in the equated posts and determination of inter se seniority. The Government of Bombay, therefore, made The Allocated Government Servants (Absorption, Seniority, Pay and Allowances) Rules, 1957, which we shall hereafter, for the sake of convenience, refer to as the Rules of 1957. The Preamble to the Rules of 1957 stated that they were made by the Governor of Bombay in exercise of powers conferred by Art. 309 of the Constitution and with due regard to the proviso to sub-s. (7) of S. 115 of the States Reorganisation Act, 1956 and with the approval of the Government of India obtained thereunder where necessary. The Rules of 1957 provided inter alia for absorption of all persons allotted for Service to the State of Bombay and the determination of their inter se seniority in the cadre of absorption. Rule 3 dealt with the case of an allocated Government servant belonging to a local cadre, that is, a cadre other than a State cadre in a former State, but this rule had no application to Tehsildars of Ex-Hyderabad State because they belonged to a State cadre and not to a local cadre. Rule 4 enacted a general provision that the appointing authority shall issue an order absorbing each allocated Government servant, other than one covered by Rule 3, in an equivalent post after the equation of posts was made by the Government. The Government of Bombay thereafter, by a Resolution dated 21st October, 1957, declared inter alia that the post of Mamlatdars in the former State of Bombay shall be deemed to be equivalent to the posts of Tehsildars allocated from the former State of Hyderabad. The petitioners and other Tehsildars allocated from the Ex-Hyderabad State were accordingly absorbed as confirmed Grade II Mamlatdars with effect from 1st November, 1956, and since they were serving in one or the other of the districts of the ex-Hyderabad State which were grouped together with East Khandesh District to constitute Aurangabad Division, it was directed that they should be treated as Grade II Mamlatdars in the Aurangabad division. Similarly, by the same Government Resolution dated 21st October, 1957 the posts of Deputy Collector in the former State of Bombay were declared to be equivalent to the posts of Deputy Collector allocated from the former State of Hyderabad4. Prior to the reorganisation of the States different rules of recruitment to the posts of Deputy Collector prevailed in the different regions which went to make up the reorganised State of Bombay. We have already referred to the rules contained in the Notification of the Rajpramukh of Hyderabad dated 15th September, 1956. Then there were rules enacted by the Government Resolution dated 24th July, 1951 which prevailed in the former State of Bombay. There were also similar rules in the other States, namely, Madhya Pradesh, Saurashtra and Kutch. The allocated Mamlatdars/Tehsildars coming from these different States undoubtedly carried their respective conditions of service with them under S. 115, sub-S. (7) of the States Reorganisation Act, 1956, and those conditions of service included the right to be considered for promotion as Deputy Collector, but the different rules of recruitment which prevailed in the different regions as such became wholly inapposite and incongruous and ceased to be applicable in the new set up. The Government of Bombay, therefore, felt that it was necessary to have new rules of recruitment to the posts of Deputy Collector applicable uniformly throughout the territory of the reorganised State and, with that end in view, framed recruitment rules and issued them as appendix to a Resolution dated 30th July, 1959. These rules we shall hereafter for the sake of convenience refer as the rules of 30th July, 1959, Rule 1 of these Rules is material and it may be reproduced as follows:"Appointment to the posts of Deputy Collector shall be made either by nomination or by promotion of suitable MamlatdarsProvided that the ratio of appointment by nomination and by promotion shall, as far as practicable be 50: 50Provided further that half the vacancies reserved for appointment by promotion shall be filled by directly recruited Mamlatdars who have put in at least seven years service in the posts including the period spent on probation.It will be noticed that according to these rules vacancies in the posts of Deputy Collector were to the filled from the three sources: 50% by nomination on the basis of the result of competitive examination, 25% by directly recruited Mamlatdars who have put in at least seven years service including the period spent on probation and the remaining 25% by Mamlatdars promoted from the lower ranks in the Revenue Department. The reservation of 25% of vacancies in favour of directly recruited Mamlatdars was made by the second proviso to Rule 1, but in Writ Petn. No. 845 of 1967 filed by one Kapoor against the Commissioner of Aurangabad Division and Ors. a Division Bench of the Bombay High Court, by its judgment D/- 23-3-1968 declared that proviso void as being violative of the equal opportunity clause contained in Art. 16 of the Constitution. The petitioners in this petition disputed the correctness of this view taken by the High Court and contained that the provision enacted in the second proviso to Rule 1 was a valid provision. But of that a little later when we deal with the arguments of the parties. It is, however, evident that if the second proviso to rule 1 were invalid, 50% of the vacancies in the posts of Deputy Collector would have to be filled by nomination and 50% by promotion of Mamlatdars irrespective of whether they were directly recruited Mamlatdars or Mamlatdars promoted from the lower ranks. We may also at this stage refer to one other contention raised on behalf of the petitioners in regard to the rules of 30th July, 1959. That contention was that the Rules of 30th July, 1959 did not apply to the allocated Tehsildars from Ex-Hyderabad State who continued to be governed by the recruitment and promotion rules of their erstwhile State. This contention was sought to be supported by reference to a letter dated 18th October, 1960 addressed by the Commissioner of Aurangabad Division to the first petitioner in which the Commissioner stated that the Rules of 30th July, 1959 "are not applicable to Marathwada officers as they are governed by recruitment and promotion rules of Ex-Hyderabad State which are not yet unified by Government. The respondents admitted that such a letter was addressed by the Commissioner to the first petitioner, but said that was due to a bona fide error, and in any even it was not binding on the State Government. The respondents urged that the Rules of 30th July, 1959 were unified recruitment rules applicable throughout the whole of reorganised State of Bombay and the promotion of the allocated Tehsildars from Ex-Hyderabad State to the posts of Deputy Collector was governed by those Rules and not by the Ex.-Hyderabad rules. This controversy as to the scope and extent of the applicability of the Rules of 30th July, 1959 need not, however, detain us, as the same controversy was raised also before the Bombay High Court in Kapoors case and was decided in favour of the State Government, and in view of the cogent reasons given by the Bombay High Court in support of its decision the petitioners did not press their contention and agreed to proceed on the footing that the Rules of 30th July, 1959 governed recruitment to the posts of Deputy Collector throughout the reorganised Bombay State5. It may also be noted that, as in the case of Deputy Collectors, so also in the case of Mamlatdars, the Government of Bombay made unified rules of recruitment by a Resolution dated 19th November, 1959. These Rules which we shall for the sake of convenience refer as the Rules of 19th November, 1959 came into force with effect from 1-1-1960. Rule 1 of these rules is material and it provided that appointment to the posts of Mamlatdars shall be made by nomination on the result of competitive examination or by promotion from amongst the members of subordinate revenue service, provided that as nearly as may be one half of the vacancies in the cadre of Mamlatdars shall be reserved for direct recruits by nomination "except in the case of Nagpur Division where a special provision was made that this ratio would not apply till all persons recruited as Naib Tehsildars were either promoted as Tehsildars or rejected as not fit to be so promoted6. Now, according to the respondents, the cadre of Mamlatdar was a divisional cadre and not a State cadre and the reorganised State of Bombay being divided into six divisions, there was a separate cadre of Mamlatdars for each division. This position was, however, disputed on behalf of the petitioners and their argument was that though it was true that Mamlatdars were allocated to different divisions, that was only for the sake of administrative convenience and it did not have the effect of splitting up the State cadre of Mamlatdars into divisional cadres. The cadre of Mamlatdars always remained one and indivisible and it was a State cadre. Now whatever be the correct position in law, and we shall examine that presently, one thing is certain that the State Government proceeded on the basis that the cadre of Mamlatdars was a divisional cadre. The procedure that the State Government followed for making appointment to the posts of Deputy Collector by promotion of suitable Mamlatdars/Tehsildars from and after 1st November, 1956 was that for each division a select list of Mamlatdars/Tehsildars considered fit for promotion as Deputy, Collector was prepared by a reviewing committee every year and from the divisional select list, promotions were made as officiating Deputy Collectors on a divisional basis, and thereafter confirmations in the cadre of Deputy Collectors, which was admittedly a State cadre, "were made for the State as a whole after considering the claims of all officiating Deputy Collectors in the State as a whole. This procedure does not appear to have the warrant of any legislative rules or administrative orders, but there can be no doubt, from the affidavit in reply filed on behalf of the State Government, that it was in fact followed for making promotions to the posts of Deputy Collector. On 7th April, 1961, the Government issued a Resolution laying down the "principles for regulating preparation and revision of select list of Mamlatdars/Tehsildars fit to be appointed as Deputy Collectors in the posts to be filled by promotion It may be recapitulated here that under the Rules of 30th July, 1959 the posts to be filled by promotion of suitable Mamlatdars/Tehsildars were 25% in case the second proviso to rule 1 were held to be valid and 50% in case it was invalid. The Government Resolution dated 7th April, 1961 provided that a committee should, in July August each year, review the claims of all Mamlatdars/Tehsildars for promotion to the posts of Deputy Collector and should draw up a select listfor each divisionof those who are considered by the committee fit for promotion, and paragraphs 3 to 7 to this Government Resolution laid down the principles governing the preparation and revision of the divisional select lists. The promotions as officiating Deputy Collectors were made division wise on the basis of the divisional select lists and confirmations in the cadre of Deputy Collectors were made according to the combined seniority list of officiating Deputy Collectors. Paragraph 17 of the affidavit in reply filed on behalf of the State Government set out the detailed procedure followed by the State Government in this behalf. We shall have occasion to refer to this procedure in detail when we examine the respective arguments of the parties and we need not, therefore, elaborate it at this stage. Suffice it to point out that it was in accordance with this procedure that the petitioners were promoted as officiating Deputy Collectors in the Aurangabad Division on different dates. The consequence of the adoption of this procedure, however, was that some of the allocated Mamlatdars/Tehsildars in other divisions, who were junior to the petitioners, became officiating Deputy Collectors earlier than the petitioners and were consequently entitled to be confirmed in the cadre of Deputy Collectors in preference to the petitioners. The petitioners actually gave in paragraph 38 of the petition examples of three allocated Mamlatdars from Ex-Bombay State, who were admittedly appointed Mamlatdars later than the petitioners, and yet came to be promoted as officiating Deputy Collectors earlier than the petitioners. This was the main cause of grievance of the petitioners in the petition.

Reasoning:
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.