Case ID: 5880

Judgment:
vil Appeal Nos. 3804 to 3807 of 1988. From the Judgment and Order dated 23.11.1987 of the Bombay High Court in Second Appeal No. 404 of 1985	 W.P. No. 607 of 1985 ant Second Appeal No. 86 of 1986. R.K. Garg	 Vijay Hansaria and Sunil K. Jain for the Appellants. PG NO 714 S.B. Bhasme	 V.M. Tarkunde	 A.S. Bhasme	 V.N. Ganpule	 S K. Agnihotri	 A.G. Pawar and A.B . Lal for the Respondents. The Judgment of the Court was delivered by DUTT	 J. Special leave is granted in all these matters. Heard learned Counsel for the parties. The principal question that is involved in these appeals is some what peculiar. The question is whether the Food & Civil Supplies Department	 Sholapur	 has a separate and independent existence or whether it is part and parcel of the Revenue Department. The best authority which can answer the question is the Government	 but the Civil Courts and the High Court have not been able to accept the Government version that the Food & Civil Supplies Department	 Sholapur	 is an independent Government Department and does not form part of the Revenue Department. The facts leading to the question will be stated presently. The Commissioner of Pune Division	 by his order dated January 27	 1981	 granted promotions to the appellants to the posts of Awal Karkuns	 and directed that the private respondents herein	 who were holding these posts would be repatriated to their parent department	 that is	 the Revenue Department. Aggrieved by the said order of the Commissioner	 Pune Division	 some of the private respondents filed a civil suit for a declaration that the said order granting out of turn promotions to the appellants as Awal Karkuns was unjust	 illegal and violative of the fundamental rights of the respondents guaranteed under Articles 14 and 16 of the Construction of India. The learned Civil Judge	 Senior Division	 Sholapur	 decreed the suit and declared that the impugned order of the Commissioner	 Pune Division was discriminatory	 illegal and not binding upon the respondents. The learned Civil Judge also granted an injunction permanently restraining the Government from reverting the respondents from the posts of Awal Karkuns to the posts of Clerks on appeal. the Fourth Addition District Judge	 Sholapur	 upheld the judgment and decree of the Civil Court and dismissed the appeal preferred by the appellants and the State of Maharashtra The appellants and the State of Maharashtra filed two separate second appeals to the High Court of Bombay. In the meantime	 some of the respondents also filed writ petitions in the High Court challenging the validity of the impugned order of the Commissioner	 Pune Division. The High Court	 by a common judgment	 disposed of the second appeals and the writ petitions. The High Court PG NO 715 came to the finding that the Food & Civil Supplies Department	 Sholapur	 had no separate existence on the date the impugned order was passed	 and that it was part and parcel of the Revenue Department. Upon that finding	 the High Court dismissed the second appeals and allowed the writ petitions of the respondents. It is not disputed before us that before 1965	 there was no such Department as the Food & Civil Supplies Department at Sholapur. Initially	 the Agriculture	 Food & Cooperation Department of the Government was entrusted with the subject of food and the supply thereof. By a circular dated January 13	 1965 of the Government of Maharashtra	 a new department called "the Civil Supplies Department" was created. By a subsequent Government circular dated May 13	 1965 it was renamed as "Food & Civil Supplies Department . It appears from the said Government circular dated January 13	 1965	 creating the department	 that the Agriculture	 Food & Cooperation Department was renamed as the Agriculture & Cooperation Department. In other words	 the subject of food was withdrawn from the said and a new Department	 namely the Civil Supplies Department. subsequently renamed as Food & Civil Supplies Department	 was created. After the creation of the Food & Civil Supplies Department the rationing was introduced in Sholapur City and Salgarwadi area under the control of the Food & Civil Supplies Department which will appear from the Government resolution dated February 19	 1966. As a result of introduction of statutory rationing several posts had to be created in the establishment of the Controller of Rationing	 which was admittedly a part of the Food & Civil Supplies Department. Certain posts were also transferred from the Revenue Department to the Food & Civil Supplies Department along with the holders of such posts. The most significant fact in this regard is that the holders of the posts had to be appointed afresh as personnel of the Food & Civil Supplies Department which will also appear from the Government resolution dated February 19 1966. It is not disputed that at the time that is to say	 after the introduction of statutory rationing	 the Food & Civil Supplies Department was an independent Government Department at Sholapur. The statutory rationing was discontinued in Sholapur with effect from May	 1	 1968. The posts in the rationing establishment were directed to be merged in the office of the Foodgrain Distribution Officer	 Sholapur	 and the expenditure on that account was directed to be debited to PG NO 716 the budget head "26 Miscellaneous Department Civil Supplies Department (iii) Procurement	 Distribution and Price Control (b) Mofussil" and met from the grants sanctioned thereunder. It is	 however	 not disputed that some of the rationing staff were retrenched	 some were absorbed in the Revenue Department and the remaining staff were directed to be merged in the office of the Food grain Distribution Officer	 Sholapur	 with effect from May 1	 1969. So far as the appellants before us are concerned	 they were not retrenched	 but according to the private respondents they were absorbed in the Revenue Department. This has been emphatically disputed by the appellants. Mr. Tarkunde	 learned Counsel appearing on behalf of the private respondents	 has drawn our attention to a letter dated October 25	 1969 written by the Foodgrain Distribution Officer	 Sholapur	 to the Collector	 Revenue Branch	 Sholapur. In that letter	 the Food grain Distribution Officer	 Sholapur	 requested the Collector to absorb the remaining staff of the rationing department	 who were then working in the Foodgrain Distribution Office. At this stage	 it may be that there is no dispute that both the Departments	 namely	 the Food & Civil Supplies Department and the Revenue Department	 were under the District Collectorate. A list was attached to the said letter dated October 25	 1969 of the Foodgrain Distribution Officer relating to absorption of rationing staff in the Revenue Department. The list contains the names of the appellants and under column No. 7 of the list	 it has been recorded that the appellants and other remaining staff were willing to work in the Revenue Department. In view of the said letter of the Foodgrain Distribution Officer and the list annexed to his letter written to the Collector	 it is submitted by the learned Counsel	 appearing on behalf of the private respondents	 that the appellants were transferred to the Revenue Department as the Food & Civil Supplies Department was abolished on the abolition of the statutory rationing. It has been already noticed that some of the staff of the rationing establishment	 who were not retrenched	 were transferred to the office of the Foodgrain Distribution Officer. According to the respondents	 the Foodgrain Distribution Office is under the Revenue Department	 while the appellants aver that it belongs to the Food & Civil Supplies Department. In this regard	 the most important say is that of the Government. It is asserted on behalf of the State of Maharashtra that the Food grain Distribution Officer belongs to the Food & Civil Supplies Department. The PG NO 717 controversy in this respect can be easily resolved by referring to the said letter dated October 25	 1969 of the Foodgrain Distribution Officer to the Collector	 Revenue Branch. If the Foodgrain Distribution Office belongs to the Revenue Department	 there was no necessity for the Foodgrain Distribution Officer to request the Collector	 Revenue Department	 to absorb the unretrenched staff of the rationing establishment. Be that as it may	 the question that arises is whether the appellants were absorbed in the Revenue Department. It is true that under column No. 7 of the list annexed to the said letter dated October 25	 1969 of the Food grain Distribution Officer	 it has been recorded that the appellants and other staff of the rationing establishment were willing to work in the Revenue Department. There is	 however	 nothing to show that as a matter of fact the appellants were transferred to the Revenue Department. The appellants might be willing to be absorbed in the Revenue Department	 but there is no material in proof of the alleged absorption of the appellants in the Revenue Department. It is also not the case of the State Government that the appellants were absorbed in the Revenue Department. In the counter affidavit of the respondent No. 1	 it is stated as follows: "That the District Collector of Solapur by his memorandum dated 17 4 1969 laid down the conditions of giving alternative employment to the retrenched ex civil supply staff in Revenue Department. These conditions are: (1) That the services in Revenue Department are transferable throughout the district. (2) That Revenue employees are required to pass departmental examination within prescribed period. (3) That to hold Awal Karkun 's post Revenue employee is required to pass revenue qualifying exam. in addition to Sub Service Department Examination. " It is clear from the statement extracted above that one of the conditions for absorption was that the appellants were required to pass the departmental examination within the prescribed period. Another conditions was that one had to pass revenue qualifying examination in addition to Sub Service Department Examination for holding the post of Awal Karkun in the Revenue Department. It is not disputed that the appellants have not passed any of these examinations. This shows that as they did not fulfil the conditions for PG NO 718 absorption in the Revenue Department	 they could not be transferred to or absorbed in that Department. The High Court proceeded on the assumption that on the abolition of the statutory rationing	 the Food & Civil Supplies Department	 Sholapur	 also came to be absolished. Indeed	 this is also the contention of the private respondents. Food is an important matter for Government 's consideration and it was the responsibility of the Agriculture	 Food & Cooperation Department before the creation of the Food & Civil Supplies Department. The said Department was renamed as `Agriculture & Cooperation Department ' inasmuch as food ' was taken out of that Department and placed under the Food & Civil Supplies Department. Thus	 the fact of introduction or abolition of statutory rationing has nothing to do with the question of food and supply thereof	 which must be dealt with by some department of the government and after the creation of the Food & Civil Supplies Department	 it was dealt with by that Department. It will be wrong to assume that the Food & Civil Supplies Department dealing with food and supply thereof	 will be abolished consequent on the abolition of the statutory rationing. In the counter affidavit of the State of Maharashtra	 affirmed by Shri Chandrasen Pandarinath Kamble	 it has been stated inter alia that in the State of Maharashtra there is a system of Fair Price Shops and Household Card System in the areas where statutory rationing system does not exist This Fair Price Shops and Household Card system undoubtedly comes under the control and supervision of the Food & Civil Supplies Department. As the Department existed it can be reasonably presumed that it had its own staff and the appellants contention that they were retained in the Food & Civil Supplies Department seems to be correct. Merely the fact of giving of consent by the appellants to their absorption in the Revenue Department	 fails to persuade us to hold that the appellants were absorbed in the Revenue Department	 in the absence of any proper material in that regard. A question has	 however	 been raised on behalf of the private respondents that if the Department of Revenue and the Food & Civil Supplies Department are two different Departments of the Government	 there is no material to show how the respondents came to hold posts in the Food & Civil Supplies Department. It is true that there is no order showing that the respondents were transferred on deputation from the Revenue Department to the Food & Civil Supplies Department. In our opinion	 in view of the facts and circumstances stated above	 it can be reasonably presumed PG NO 719 that the respondents were sent on deputation to the Food & Civil Supplies Department	 otherwise there was no question of their repatriation to their parent department	 that is	 the Revenue Department. There are other materials which would also justify the finding that the Food & Civil Supplies Department and the Department of Revenue are two independent and separate Departments even after the abolition of statutory rationing. The Governor of Maharashtra	 by an order dated April 13	 1983	 framed rules under the proviso to Article 309 of the Constitution of India for regulating recruitment to the posts of Assistant Commissioner (Supply)	 District Supply Officer and Foodgrain Distribution Officer Class I under the Food & Civil Supplies Department of the Government of Maharashtra. Framing of these rules	 proves two things	 namely	 that the Food & Civil Supplies Department has independent and separate existence	 and that the Foodgrain Distribution Officer belongs to that Department. Another set of rules was framed under the proviso to Article 309 of the Constitution of India by the notification dated May 21	 1984 for regulating recruitment to Class 11 posts in the Food & Civil Supplies Department of the Government of Maharashtra. The framing of these rules for regulating the recruitment of officers in the Food & Civil Supplies Department supports the case of the appellants and also of the Government that the Food & Civil Supplies Department Sholapur	 is an independent Department. The final gradation list of supply staff of directly recruited Clerks and Godown Keepers was prepared and published. It is. however contended on behalf of the private respondents that the supply staff belong to the Revenue Department. This contention is without any substance. The words supply staff undoubtedly	 refer to the supply staff of the Food & Civil Supplies Department . The State Government is justified in placing reliance upon the gradation list in support of its case that the Food & Civil Supplies Department is an independent and separate Department. It is	 therefore	 apparent from the above facts	 particularly the fact that separate rules were framed for recruitment of officers in the Food & Civil Supplies Department and a final gradation list was also prepared and published	 and the Food & Civil Supplies Department not part and parcel of the Revenue Department but it has a separate and independent existence. This finding finds support from another fact that the Revenue Department has its own gradation list of its employees including the private respondents. PG NO 720 We may now deal with one more submission made on behalf of the private respondents. Our attention has been drawn to a fact which has also been noticed by the High Court	 namely	 that by a Government order issued to all Commissioners of Divisions	 it was directed that the posts of Inspecting Officers should be made available to the persons from the Revenue Department as well as from the Food & Civil Supplies Department in the ratio of 75:25. It is submitted on behalf of the private respondents that this Government order points to the fact that both the Food & Civil Supplies Department and the Revenue Department are one and the same Department at Sholapur. We are unable to accept this contention. The Government order in question	 in our opinion	 establishes the fact that the two Departments are separate Departments of the Government. It has been already noticed that some officers of the Revenue Department were holding the posts in the Food & Civil Supplies Department	 Sholapur	 presumably on deputation and	 hence	 the ratio with regard to the posts of Inspecting Officers	 with which we are not concerned	 had to be fixed. If the two Departments were not separate Departments	 there was no necessity for mentioning the names of these two Departments in the said order. It is not disputed that the posts of Inspecting Officers are posts of the Food & Civil Supplies Department. The contention of the private respondents based on the said Government order is	 accordingly	 rejected. Before we conclude the judgment	 we may refer to an unreported Bench decision of the Nagpur Bench of the Bombay High Court in Special Civil Applications Nos. 707 of 1974 and 4258 and 4834 of 1976 (Shri Atmaram Chaturji Garbade & Ors. vs State of Maharashtra & Ors.) disposed of on January 13	 1977 where it has been held that the two departments are separate. It is	 however	 contended by Mr Tarkunde that the Nagpur Bench decision has no bearing on the instant appeals before us as it relates to the city of Nagpur and cantonment in Kampte where the Food & Civil Supplies Department was not abolised. It	 however	 appears that in that decision	 the Bench has taken into consideration some common documents. Be that as it may	 in the instant appeals	 there are ample materials which justify the conclusion that the two departments are not one and the same department but are two separate departments. In the circumstances	 we are unable to agree with the High Court that the appellants are employees of the Revenue Department inasmuch as after the abolition of the statutory rationing	 the Food & Civil Supplies Department was also abolished and the appellants were absorbed in the Revenue PG NO 721 Department. As the appellants belong to a different department	 their promotions will be governed by the rules of that department. Similarly	 the promotions of the private respondents will be considered in accordance with the rules of the Revenue Department. We are told that after their repatriation to their parent department all the private respondents were promoted to the posts of Awal Karkuns. For the reasons aforesaid	 we set aside the judgment of the High Court as also of the trial court and that of the lower appellate court and dismiss the suit and the appeals. The writ petitions filed ' in the High Court are also dismissed. The instant appeals are allowed	 but in view of the peculiar facts and circumstances of the cases	 there will be no order as to costs. R .S.S. Appeals allowed.

Summary:
The appellants were promoted in January 1981 as Awal Karkuns in the Department of Food and Civil Supplies	 Sholapur. At the same time	 the private respondents holding those posts were directed to be repatriated to their parent department	 that is	 the Revenue Department. The private respondents challanged these orders by way of a civil suit on the ground that these orders were unjust	 illegal and violative of Articles 14 and 16 of the Constitution. The Civil Judge decreed the suit. The Additional Sessions Judge and the High Court upheld the decree. The High Court came to the finding that the Food & Civil Supplies Department	 Sholapur	 had no separate existence on the date the impugned order was passed and that it was part and parcel of the Revenue Department. It is contended by the private respondents that on the abolition of the statutory rationing	 the Food & Civil supplies Department was abolished	 and the appellants were absorbed in the Revenue Department. This contention is disputed by the appellants. Allowing the appeals	 it was	 HELD: (1) It was not disputed that after the introduction of statutory rationing	 the Food & Civil Supplies Department was an independent Government Department at Sholapur. [71G] (2) It was wrong to assume that the Food & Civil Supplies Department dealing with food and supply thereof. was abolished consequent on the abolition of the statutory rationing. [718D] (3) The fact of introduction or abolition of statutory rationing had nothing to do with the question of food and supply thereof	 which must be dealt with by some department of the Government and after the creation of the Food & Civil PG NO 712 PG NO 713 Supplies Department	 it was dealt with by that Department. [718C] (4) As the Department existed	 it could be reasonably presumed that it had its own staff and the appellant 's contention that they were retained in the Food & Civil Supplies Department seemed to be correct. [718E] (5) There was no material in proof of the alleged absorption of the appellants in the Revenue Department. Moreover	 as they did not fulfil the conditions for absorption in the Revenue Department	 they could not be transferred to or absorbed in that Department. [717C; 718H] (6) It is true that there was no order showing that the respondents were transferred on deputation from the Revenue Department to the Food & Civil Supply Department. It could	 however	 be reasonably presumed that the respondents were sent on deputation to the Food & Civil Supplies Department	 otherwise there was no question of their repatriation to their parent department. [718H; 719A] (7) It was apparent from the fact that separate rules were framed for recruitment of officers in the Food and Civil Supplies Department and a final gradation list was also prepared and published	 that the Food and Civil Supplies Department was not part and parcel of the Revenue Department	 but it had a separate and independent existence. [719G] (8) As the appellants belonged to a different department their promotions would be governed by the rules of that department. Similarly	 the promotion of the private respondents would be considered in accordance with the rules of the Revenue Department. [721A] Shri Atmaram Chaturvedi Garbude & Ors. vs State of Maharashtra & Ors.	 Special Civil Application Nos. 707 of 1974 and 4834 of 1976 Bombay High Court	 Nagpur Bench	 referred to.