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TMI Blog1976 (11) TMI 190X X X X Extracts X X X X X X X X Extracts X X X X ..... is easily accepted as the legal. This does not preclude a different prescription, constitutionally tests being satisfied. A periodisation is needed in the case to settle rightly the relative claims of promotees and direct recruits. 1960-62 forms period A and 1962 onwards forms period. B. Promotees regularly appointed during period A in excess of their quota, for want of direct recruits (reasonably sought but not secured and because tarrying longer would injure the administration) can claim their whole length of service for seniority even against direct recruits 'who may turn up in succeeding periods. Promotees who have been fitted into vacancies beyond their quota during the period B--the year being regarded as the unit--must suffer survival as invalid appointees acquiring new life when vacancies in their quota fall to be filled up. To that extent they will step down, rather be pushed down as against direct recruits who were later but regularly appointed within their quota - On this basis, the judgment of the High Court stands substantially modified, but preparation of a new seniority list becomes necessitous - Appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... should have been more pellucid than the precedents read and re-read made us feel. 'The aid of the purifying ordeal of skilled argument' when too lapidary and finical reaches a point of no return, despite Megarry J to the contrary in Cordell v. Second Clanfield Properties Lid. ([1968] 3 All E.R. Ch. Dn. 746). Seven Deputy Collectors, arriving by direct recruitment in, and after 1963, claim to be ahead, in the gradation list, of their more numerous counterparts former mamlatdars, whose promotional incarnation as Deputy Collectors, dates back to the years 1960-63. The title of these younger incumbents to be eider in the Civil List is primarily founded on a basic Resolution of Government of July 30, 1959 regulating recruitment to the Deputy Collectors' cadre by the 'then Bombay State adopting a quota basis. The Gujarat State, carved out of Bombay and formed on May 1, 1960, continued the system; and so, simplistically presented, the fate of the 'seniority' struggle critically turns on the construction the Bombay Resolution of 1959 bears, the rival versions having been alternately frowned upon or favoured at the original and appellate docks of the High Court. There are other matters of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concerned, was to run from the date of their appointment on probation and, in the case of promotee officers, such service was to begin with promotion in substantive vacancies, if continued without break. For reasons obscure, the direct recruitment scheme of infusion of fresh blood-to use the usual validating vascular metaphor--to invigorate the Administration, hibernated from 1950 until 1959. However, the crucial government decision of July 30, 1959 not merely re-activated the mode of direct recruitment but fixed the promotion in which recruitment from the two sources was to be made, referred to conveniently as the quota system. The heart of the debate before us is whether a quota prescription, willy nilly, does postulate exnecessitate a rota process in practice. We may here read the resolution itself: Deputy Collector: Recruitment of probationers GOVERNMENT OF BOMBAY REVENUE DEPARTMENT Resolution No. RTC. 1157/99153-D Sachivalaya, Bombay, 30th July 1959 Read-Government Resolution-No. 9313/45, dated the 6th February 1950. Government Resolution No. 9313/45, dated the 24th July 1951. RESOLUTION: Government had for sometime under consideration the question of reviving the syst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity is another Resolution of the Bombay Government (continued during the relevant period in Gujarat also by virtue of an omnibus circular of May 1, 1960) of February 3, 1960. This step became primarily necessary on account of the Reorganisation of States and the abolition of Divisions. The legal fiction of 'deemed dates of commencement of service' for the purpose of inter se seniority of personnel drawn from different pre-Reorganisation States and from the Divisions within the State on conversion of the deputy collectors' cadre into a State-wide one has been crystallised in this rule of February 1960. One more clarificatory proceeding of Government, dated May 27, 1960 has loomed large in Shri Patel's submissions, especially the Explanation portion thereof and, in a sense, it lends some push to the problematic conclusion. We therefore read the relevant Government Circular right here: No. GSF-1060-F Government of Gujarat General Administration Department Sachivalaya, Ahmedabad, 27th May 1960 CIRCULAR Read: Government Circular No. GSF-1060, dated the 1st May 1960. Doubts have arisen as respects the directions given under Government Circular No. GSF-1060 dated the 1st May, 1960 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the 1959 Resolution, it has been understood as set out in the 1941 Resolution earlier mentioned. The contesting respondents plead for pushing down promotees, based on the strict roster system of 1: 1 going by each vacancy and demur to taking the year as a unit for adjustment of ratio. Which view should prevail? Force, there may be, in the rival versions, individual injustice there can be whichever view were accepted and precedential pushes and pressures may also be brought into play by either side if we surrender to scriptural literality of decisions of this Court and miss the thrust of the ratio therein. In a liner sense, and within the frame of reference of leading precedents, each case has an individuality and is a law unto itself. Strictly speaking, the primary problem is one of fair interpretation of the basic government Resolution of 1959, illumined by the purposes and motivations of good government and unravelling the implications embedded therein, against the background of the administrative structure, service pattern and seniority principles, prevalent contemporaneously, as gleaned from the records of the case. The milieu aids the meaning although lawyer's law leans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istically cluttering up or en massee lugging together many government proceedings, sequences of events and clarification of difficulties following on the division of Bombay into Gujarat and Maharashtra, even at this preliminary stage. The pivotal questions--one an interpretative exercise and the other a facet of the fundamental right of equal opportunity--around which revolve the other arguments may first be set out: (1) If the Gujarat Government has, by an administrative guideline or statutory rule directed that open market recruits and in-service promotees will be appointed on a 50: 50 basis with the qualification that this principle shall be adhered to, as far as practicable, is Government free to ignore such a rule of conduct as if it were no inflexible directive, violation of which spells illegality on the appointments made, or does this clause obligate the State flatly to try and comply, but if surprise circumstances or insurmountable exigencies arise which make recourse to the rule impracticable, deviate from it without the risk of court branding such deviant appointments void? In short, how far can (1) Benjamin N. Cardozo: The Nature of the Judicial Process: Yale Universit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d ratio. Shri Patel's first point is that once the new State of Gujarat was formed, mere administration proceedings of he former government of Bombay State ceased to be in force proprio vigore unless Gujarat adopted or continued or otherwise modified them. subject to statutory regulations and constitutional limitations. The State of Gujarat had plenary executive power, granted by the Constitution, to fill up administrative posts in any manner it chose. The clarificatory government Resolution of May 27, 1960 issued by the Gujarat Government becomes significant in this context as it contains in explanation which specifically provides that the adoption of the Bombay Government Resolution of 1959 does not, in any way, fetter the Gujarat Government in making appointments of officers on or after May 1, 1960 nor does the said 1959 Resolution in any manner restrict the conditions of service of such officers. Therefore, it is perfectly oven to the Gujarat Government to make fresh appointments to the posts of Deputy Collectors untremmelled by the ratio or other restrictive conditions which may be read into the Bombay Government Resolution of 1959. In this view his clients cannot suffer even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g or dissecting to detect deadly traces of discrimination or unreasonableness. (6) The assignment of "deemed dates' of commencement of service is not unreasonable but is often adopted by Governments when integrating into a common cadre officers drawn from different States or Departments or divisions. Novel compulsions demand novel solutions and law accepts life's expediency save where the public Vower has been obliquely exercised or unreasonableness is writ large on the face of the process. Such a stigma being absent, the promotees cannot be dislodged from their notches in the ladder. We are mercifully absolved from making the discussional journey over a long mileage covering the poly-pointed formulation since two essential issues may virtually be decisive of the case. Both sides have agreed to this abbreviation and the other grounds have dropped out of effective contest in the long course of arguments. Enough upto the day It is fair to state even at this stage that be the Bombay G.O. of 1959 merely administrative or really statutory, both the learned Single Judge and the Division Bench have head the Gujarat State bound by it. The rule of law is tile enemy of arbitrary absolutism ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttle the outcome of the appeal. We will seek the tight of common sense to solve them and later test the conclusions with reference to binding rulings of this Court. The first question that falls for considerations, therefore, is as to whether the 50:50 ratio 'as between direct recruits and promoted hands is subject to the saving clause 'as far as practicable'. Can Government vary the ratio ? Ordinarily no. Is it permissible at all ? Probably, yes, given proof of the government's case that it was not practicable for the State to recruit from the open market qualified persons through the specialised agency of the Public Service Commission. The factual basis for this plea of extenuation will be examined presently but, according to Shri R.K. Garg, appearing for the contestants, even if the alibi of the State were true, it furnished no legal justification for deviation from the application of the rule. He interpreted, 'as far as practicable' occurring in the Government Resolution, in a very different way and submitted that to adopt the appellant's view on this aspect was to subvert the substance and nullify the conscience of the binding Bombay Resolution of 1959. Shri Garg argued that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubstantive vacancies occurring in the cadre should be filled in by selection in accordance With appended Rules. 'As far as practicable' finds a place in the Resolution and the Rule. In the context what does it qualify ? As far as possible 50% ? That is to say, if 50% is not readily forthcoming, then less ? Within what period should be impracticabilitv to felt ? What is the content of impracticabilitv' in the given administrative 'setting ? Contrariwise, can you not contend that impracticability is not a license to deviate, a discretion to disobey or a liberty with the ratio ? Administrative tone is too important to be neglected but if sufficient numbers to fill the direct recruits' quota are not readily available, substantive vacancies may be left intact to be filled up when direct recruits are available. Since the exigencies of administration cannot wait, expediency has a limited role through the use of the words 'as far as practicable'. Thereby Government is authorised to make ad hoc appointments by promotion or by creation of ex cadre posts to be filled up by promotees, to be absorbed in the 50% portion falling to the promotional category in later years. In short 'as far as prac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y numbers of qualified hands. We do not agree that the compulsion of the rule goes to the extreme extent of making government keep the vacancies in the quota of the direct recruits open and to meet the urgent needs of administration by creating ex-cadre posts or making ad hoc appointments or resorting to other out-of-the-way expedients. The sense of the rule is that as far as possible the quota system must be kept up and, if not practicable, promotees in the place of direct recruits or direct recruits in the place of promotees may be inducted applying the regular procedures, without suffering the seats to lie indefinitely vacant.. The next question then is as to whether government has satisfied the Court that efforts had been made to secure direct recruits and failure to secure such hands is the explanation for resort to. promotions of mamlatdars. The reason for delay in making appointments of direct recruits during the year 1960, 1961 and 1962 has been set out by the State before us. It appears that a requisition for 12 posts of deputy collectors was sent to the Gujarat Public Service Commission on October 31, 1960 but the Commission raised some linguistic queries 'regarding the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... war reckoning of vacancies and keeping up the ratio. The counter-view put forward by Shri Parekh, for the appellant, is that quota and rota are not indissolubly wedded and are separate and separable. In the present case, according to him it is an error to import 'rota' where the rule has spelt out only 'quota' as a governing principle. The Usual practice, sanctioned by rulings of this Court,is to go by the year as a unit for working out the quota. Here a again we are not disposed to hold, having special regard to the recent decisions of this Court cited before us that 'quota' is so the recent decisions of this where the former is expressly prescribed, interlocked with 'rota, that where the former is expressly prescribed, the latter is impliedly inscribed. Let us logicise a little. A quota necessarily postulates more than one source of recruitment. But does it demand the manner in which each source is to be provided for after recruitment, especially in the matter of seniority ? Cannot quota stand independent of rota ? You may fix a quota for leach category but that fixes the entry. The quota methodology may itself take many forms--vacancy-wise ratio, cadre composition-wise proporti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing conclusions: 1. The promotions of mamlatdars made by Government between 1960 and 1962 are saved by the 'as far as practicable' proviso and therefore valid, Here it falls to be noticed that in 1966 regular rules have been flamed for promotees and direct recruits flowing into the pool of Deputy Collectors on the same quota basis but with a basic difference. The saving provision 'as far as practicable' has been deleted in the 1966 rules. The consequence bears upon seniority even if the year is treated as the unit for quota adjustment. 2. If any promotions have been made in excess of the quota set apart for the mamlatdars after rules in 1966 were made, the direct recruits have a legitimate right to claim that the appointees in excess of the allocable ratio from among mamlatdars will have to be pushed down to later years when their promotions can be regularised by being absorbed in their lawful quota for those years. To simplify, by illustration, if 10 deputy collectors' substantive vacancies exist in 1967 but 8 promotees were appointed and two direct recruits alone were secured, there is a clear transgression of the 50: 50 rule. The redundancy of 3 hands from among promotees can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rules so as to eliminate litigative waste of its servants' energies. In Mervyn Coutindo the validity of the rotational system as applied in fixing the seniority inter se between promotees and direct recruits fell for decision in the context of the specific rule applicable to Customs' appraisers. One of the principles in the circular which contained the rules related to the comparative seniority of the two categories. 'It provides', says the Court in summarizing the rule, "that relative seniority of direct recruits and promotees shah be determined according to the rotation of vacancies between direct recruits and promotees which shall be based on the quota of reservation for direct recruitment and promotion respectively in the recruitment rules. It was further explained that a roster should be maintained based on the reservation for direct recruitment and promotion in the recruitment rules. Where, for example, the reservation for each method is 50 per cent, the roster will run as follows(1) promotion, (2) direct recruitment, (3) promotion, (4) direct recruitment, and so on. Appointments should be made in accordance with this roster and seniority determined accordingly. A question ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, one of which was that the rotational system would itself violate the principle of equal opportunity enshrined in the Constitution (Art. 16(1) ). The Court repelled this contention. Of course, promotions made on an ad hoc basis confer no rights to the posts on the appointees, as was clearly pointed out in that decision. In the instant case it is common ground that the appointments are not on a purely ad hoc basis but have been regularly made in accordance with the rules to fill substantive vacancies except that the promotees have exceeded their quota, direct recruits being unavailable. Kelkar (supra) stands on a different footing, and hardly advances the position advanced by Shri Garg. Jaisinghani (Supra) which has had a die-hard survival through Bishan Sarup Gupta v. Union of India (1975] Supp. SCR 491) and Union of India & Ors. v. Bishan Sarup Gupta([1975] 1 SCR 104) (if one may refer to. the two cases flowing out of Jaisinghani (supra) in that fashion), has been referred to by both sides at the bar. It was relied on by Mr. Garg for the strong observation of Ramaswami, J. that the absence of arbitrary power is the first essential of the rule of law upon which our constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowed as a guideline. Government had to follow some guiding principle and not be led by its fancy, as each occasion arose. Palekar, J. expressed the view of the Court thus: "When the rule is followed as a guideline and appointments made, a slight deviation from the quota would not be material. But if there is an enormous deviation, other considerations may arise." In the present case, prior to 1963, there was departure from the quota system and that was sanctioned by the rule itself because of special circumstances. For subsequent periods, if by taking the year as a unit there have been surplus promotees beyond their allocation even after taking into account impracticability of getting direct recruits upto 1966 when new statutory rules were enacted, then such spillovers, could and should, as indicated by this Court, be set off and absorbed in the later allocable vacancies, the pro tempore illegal appointments being thus regularised. Of course, appointees on an ad hoc basis are never clothed with any rights and have to quit when the exit time arrives but here there are none. In Gupta II(Supra) the Court ruled: "If there were promotion in any year in excess of the quota those pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as Judges, cannot strike down the particular scheme because it is unpalatable to forensic taste. (c) Seniority, normally. is measured by length of continuous, officiating service--the actual is easily accepted as the legal. This does not preclude a different prescription, constitutionally tests being satisfied. (d) A periodisation is needed in the case to settle rightly the relative claims of promotees and direct recruits. 1960-62 forms period A and 1962 onwards forms period. B. Promotees regularly appointed during period A in excess of their quota, for want of direct recruits (reasonably sought but not secured and because tarrying longer would injure the administration) can claim their whole length of service for seniority even against direct recruits 'who may turn up in succeeding periods. (e) Promotees who have been fitted into vacancies beyond their quota during the period B--the year being regarded as the unit--must suffer survival as invalid appointees acquiring new life when vacancies in their quota fall to be filled up. To that extent they will step down, rather be pushed down as against direct recruits who were later but regularly appointed within their quota. On t ..... 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