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TMI Blog1986 (4) TMI 351X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia today consists of twenty-two States and nine Union territories and it is difficult to visualize when this process of fragmentation of India will end and the practice of sacrificing the sense of oneness in being an Indian on the alter of parochial and linguistic chauvinism will stop. These reorganizations have resulted in benefit to some, detriment to others and bewilderment to many. Each reorganisation has brought in its wake a host of problems mostly relating to those in services of the States, many of them still unsolved. 2. We are concerned in these Appeals only with the reorganization effected by the Bombay Reorganization Act, 1960 (Act No. 11 of 1960), which divided the State of Bombay into the State of Maharashtra and the State of Gujarat. At the commencement of the Constitution, the territory of the State of Bombay comprised the territories which before the commencement of the Constitution were comprised in the Province of Bombay. Saurashtra was then a Part B State and Kutch a Part C State. Under the States Reorganization Act, 1956 (Act No. 37 of 1956), certain territories of the State of Bombay were transferred to other States, parts of the territories of the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... special order of the Central Government, to serve provisionally in connection with the affairs of the State of Gujarat. (2) As soon as may be after the appointed day, the Central Government shall, by general or special order, determine the State to which every person provisionally allotted to the State of Maharashtra or Gujarat, shall be finally allotted for service and the date with effect from which such allotment shall take effect or be deemed to have taken effect. (3) Every person who is finally allotted under the provisions of Sub-section (2) to the State of Maharashtra or Gujarat shall, if he is not already serving therein, be made available for serving in that State from such date as may be agreed upon between the two State Governments or, in default of such agreement, as may be determined by the Central Government. x x x (6) Nothing in this section shall be deemed to affect, after the appointed day, the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to the determination of the conditions of service of persons serving in connection with the affairs of the State of Maharashtra or Gujarat : Provided that the conditions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... separate units for promotional prospects, incidence of transfer, etc., of Deputy Collectors. In the predecessor Province of Bombay, the source of recruitment to these posts used to be Mamlatdars who were transferred to these posts by promotion. In 1939 a different recruitment policy was evolved and suitable candidates were directly recruited. The creation of two sources of appointment to the cadre of Deputy Collector required a rule to be framed to determine the inter se seniority between the promoters and the direct recruits. Accordingly, the Government of Bombay, Political Service Department, issued a Resolution dated November 21, 1941. The 1941 Resolution provided as follows: Government is pleased to direct that the following principles should be observed in determining the seniority of direct recruits and promoted officers in the provincial services (except the Bombay Services of Engineers, Class I) (i) In the case of direct recruits appointed substantively on probation, the seniority should be determined with reference to the date of their appointment on probation. (ii) In the case of officers promoted to substantive vacancies, the seniority should be determined wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dre with effect from 1st January, 1959 should be filled in by nomination of candidates to be selected in accordance with the rules appended herewith. 2. The Political and Services Department should be requested to issue necessary correction slips to the Bombay Civil Services Classification and Recruitment Rules. The rules appended to the said Resolution dated July 30, 1959, were called the Recruitment Rules for the Posts of Deputy Collectors . Rule 1 is as follows : Appointment to the posts of Deputy Collectors shall be made either by nomination or by promotion of suitable Mamlatdars : Provided that the ratio of appointment by nomination and by promotion shall as far as practicable be 50:50 : Provided 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. Rule 2 provided for appointment by nomination. Such nomination was to be made on the result of a competitive examination to be held by the State Public Service Commission in accordance with the rules in respect thereof appended as Annexure I to the Rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Recruitment Rules was held by this Court to be void as being violative of Article 16 of the Constitution. In that case this Court further held that the procedure for promotion based on divisional seniority was also violative of Article 16 and that the State should readjust seniority according to State-wide seniority. 10. During the period 1960 to 1962 no direct recruits were appointed to the post of Deputy Collectors, but sixty-one Mamlatdars were promoted to that post. The reason why not direct recruitments were made during this period was that on October 31, 1961, the Government sent a requisition for twelve October 31, 1961, the Government sent a requisition for twelve posts of Deputy Collectors to the Gujarat Public Service Commission but the Commission raised certain queries with regard to the qualification prescribed by Clause (c) of Rule 2 of the Recruitment Rules that the candidate should possess an adequate knowledge of Marathi or Gujarati . The reason for this query was that on the reorganization of the State of Bombay, the State of Gujarat which came into being consisted of those areas of the State of Bombay which were predominantly Gujarati-speaking areas while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 113 of 1974. In the said Letters Patent Appeal the direct recruits contended that the promoters had not been appointed in substantive vacancies, but were appointed in such vacancies only on the date on which they were confirmed. By its judgment dated November 12, 1975, the Division Bench of the Gujarat High Court held that the Government ought to have followed the roster method. The promoters thereupon approached this Court in appeal. During the pendency of the appeal, on January 1, 1976, the Government prepared a seniority list on the basis of the judgment of the Division Bench. By its judgment delivered on November 1, 1976, and reported as N.K. Chauhan and Ors. v. State of Gujarat and Ors. [1977]1SCR1037 this Court partly allowed the said appeal filed by the promoters. 11. In Chauhan's Case the Court accepted the explanation given by the State of Gujarat for its inability to hold the examination. The Court summarized the conclusions it had reached as follows (at page 1053) : 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es not necessitate the adoption of the rotational rule in practical application. Many ways of working out 'quota' prescription can be devised of which rota is certainly one. (b) While laying down a quota when filling up vacancies in a cadre from more than one source, it is open to Government, subject to tests under Article 16, to choose 'a year' or other period or the vacancy by vacancy basis to work out the quota among the sources. But once the Court is satisfied, examining for constitutionality the method proposed, that there is no invalidity, administrative technology may have free play in choosing one or other of the familiar processes of implementing the quota rule. We, 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 preordination is needed in the case to settle rightly the relative claims of promoters and direct recruits. 1960-62 forms period A and 1962 onwards forms period B. pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Collectors was irregular because the relevant rule prescribed only two sources of recruitment, namely, promotion from lower rank and direct recruitment. We may mention that the second contention raised by the promoters was given up as it transpired at the hearing of the said writ petition that the junior time-scale I.A.S. officers were appointed to the posts of Assistant Collector and not to the posts of Deputy Collector, and even a Deputy Collector after he was nominated to the I.A.S. was appointed as an Assistant Collector. 14. Both the said writ petitions were heard together by a Division Bench of the Gujarat High Court. Accepting the above contention of the direct recruits, the Division Bench of that High Court observed that the officers promoted during period A to the posts of Deputy Collectors fell in four categories, namely, (i) promoters appointed to substantive vacancies in the cadre of Deputy Collectors. (ii) promoters appointed to hold ex-cadre posts. (iii) promoters appointed to temporary posts -cadre posts or ex-cadre posts. (iv) promoters who were first placed on conditional select list during period A and were placed on unconditional select list after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he High Court further held that reading the principle laid down in the direction (d) in the light of the said Government Resolution of 1959, promoters appointed in substantive vacancies which occurred in the Cadre of Deputy Collectors during period A in excess of their quota could alone gain seniority over the direct recruits in terms of the principle of the length of continuous officiating service and that those who were promoted to the posts of Deputy Collectors for being appointed to ex-cadre posts could not be said to be regularly appointed because their appointments were not in substantive vacancies in terms of the said Government Resolution and that the seniority of those who were so promoted had to be determined from the date on which they were appointed to fill the substantive vacancies in the cadre of Deputy Collectors. The High Court then proceeded to consider the case of those who were promoted to the posts of Deputy Collectors for being appointed to hold temporary posts. According to the Division Bench, they could not be said to have been regularly appointed within the meaning of the decision in Chauhan's case. The Division Bench observed : A temporary post and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 of the Constitution, the principle of res judicata does apply to all writ petitions under Article 226. This point was, therefore, barred by the principle of res judicata and should never have been allowed by the High Court to be reagitated. 19. Even apart from the question of res judicata, the Division Bench was not right in its approach to Chauhan's case. The interpretation placed by the Division Bench upon the words promoters regularly appointed in direction (d) in Chauhan's case was wholly erroneous. Under the guise of interpreting the judgment in that case, the Division Bench of the High Court virtually sat in appeal over the judgment of this Court and modified it. The High Court ought to have taken the words in that judgment in the sense in which they were used and ought to have applied them to the facts before it instead of trying to put words in the mouth of this Court. The Division Bench ignored the fact that this Court had categorically held that in the case before it the appointments had been regularly made in accordance with the rules to fill substantive vacancies. According to the Division Bench, direction (d) in Chauhan's case meant that these appoin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y posts may be divided into the categories - (i) posts created to perform the ordinary work for which permanent posts already exist in a cadre, the only distinction being that the new posts are temporary, and not permanent and (ii) isolated post created for the performance of special task unconnected with the ordinary work which a service is called upon to perform. An example of the latter type of post is on a commission on enquiry. A distinction by strict verbal definition is difficult, but in practice there should be little difficulty in applying the distinction in individual cases. The former class of post should be considered as a temporary addition to the cadre of a service whoever may be the individual appointed to the post. The latter class of temporary post should be considered as unclassified and isolated ex-cadre posts. Temporary posts which by this criterion should be considered as temporary addition to the cadre of a service should be created in the time-scale of the service ordinarily without extra remuneration. Incumbents of these posts will, therefore, draw their ordinary time-scale pay. This is precisely what has been done in the case of officers whom the Divisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention relating to the appointment of junior time-scale I.A.S. officers in the cadre of Deputy Collectors and it is now not open to them to raise this contention. So far as the second contention is concerned, it is the case of the promoters that in addition to thirty vacancies in permanent posts and thirty-one in temporary additional posts, there were nineteen further vacancies, making in all eighty vacancies. The submission of the promoters before us was that this Court should direct the Government of Gujarat to prepare a fresh seniority list and to give the promoters the benefit of these further nineteen vacancies also. The State of Gujarat has categorically stated both in its affidavit in reply filed in the Gujarat High Court as also in its affidavits filed in this Court that there were in all only sixty-one vacancies. The contention of the promoters that there were nineteen further vacancies does not seem to be correct as the record bears out the above statement made by the State of Gujarat, and after this length of time it is not necessary to remit this matter to the High Court to ascertain this fact or to direct the State Government to prepare a fresh seniority list. This li ..... X X X X Extracts X X X X X X X X Extracts X X X X
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