TaxTMI 
TaxTMI 
TaxTMI 
1973 (11) TMI 84
X X X X Extracts X X X X
X X X X Extracts X X X X
....ded 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 Hyde I rabid 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 cadres 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 fascinating 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 ofBombay 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 ExHyderabad 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 r. 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....le 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." It will be noticed that according to rules vacancies in the posts of Deputy Collector were to be filled from 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 Petition No. 845 of 1967 filed by one Kapor against the Commissioner of Aurangabad Division & Ors., a Division Bench of the Bombay High Court, by its judgment , dated 23rd March, 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., so also in the case of Mamlatdars, the Government of Bombay made unified rules of recruitment by a Resolution date( 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 1st January, 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 promo tion from amongst the members of subordinate revenue services, provided that as nearly as may be one half of the vacancies in the cadre of Mamlatdars ,hall 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 promoted. Now, according to the respondents, the cadre of Mamlatdars 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 petiti....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... down the principles governing the preparation and revision of the divisional select lists. The promotions as officiating Deputy Collectors were made divisible on the basis of the divisional select lists and confirmations in the cadre of Deputy Collector 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 the 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 petiti....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 1959 were valid, so also was the second proviso to rule 1 of these Rules, and the Bombay High Court was in error in declaring it to be invalid in Kapoor's case. (C) The Government Resolution dated 7th April, 1961, as also the procedure for making promotions to the posts of Deputy Collector followed by the State Government were violative of the equal opportunity, clause contained in Art. 16 of the Constitution. The promotions to the posts of Deputy Collector should have been made on the basis of Statewide seniority of Mamlatdars/Tehsildars by selection from amongst Mamlatdars/Tehsildars throughout the State as a whole. We shall proceed to examine these grounds in the order in which we have set them out, but before we do so we must refer to some ,objections of a preliminary nature raised on behalf of the respondents. The first preliminary objection raised on behalf of the respondents. was that the petitioners were guilty of gross lashes and delay in filing the petition. The divisional cadres of 'Mamlatdars/Tehsildars were created as far back as 1st November, 1956 by the Government Resolution of that date, and the procedure for making promotion to the posts of Deputy Colle....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion and that case was accepted by the Bombay High Court that the Rules of 30th July, 1959 were the unified rules of recruitment to the posts of Deputy Collector applicable throughout. the reorganised State of Bombay. The petitioners thereafter did not lose any time in Ring the present petition. Moreover, what is challenged in the petition is the validity of the procedure for making promotions to the posts of Deputy Collector-whether it is violative of the equal opportunity clause-and since this procedure, is not a thing of the past but is still being followed by the State Government, it is but desirable that its constitutionality should be adjudged when the question has, come before the court at the instance 'of parties properly aggrieved by it. It may also be noted that the principle on which the Court proceeds in refusing relief to the petitioner on ground of lashes ordeals is that the rights which have accrued to others by reasons of the delay in filing the petition should not be allowed to be disturbed unless there is reasonable explanation for the delay. This principle was stated in the following terms by Hidayatullah, C.J. in Tilokchand v. H. B. Munshi([1969] 2 S.C.R. 824....
X X X X Extracts X X X X
X X X X Extracts X X X X
....spute of directly recruited Tehsildars as a class was agitated in that case and decided and consequently if the judgment of the Bombay High Court in regard to such dispute was incorrect, the petitioners could always apply for a review of that impunities; as did the parties in Shivdeo Singh v. State of Punjab(1). The petitioners had this alternative legal remedy of review available to them and there was no reason why, instead of pursuing that remedy, the petitioners should have filed the present petition under Art. 32. This 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 Shivdeo Singh v. State of Punjab(A.I.R 963 S.C. 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 w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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, Saurashtra and Kutch to the reorganised States 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 rejected. Re : Ground B : The petitioners and other allocated Tehsildars from Ex-Hyderabad State had, under the Notification of the Rajpramukh dated 15th September, 1955, all :he vacancies in the post of Deputy Collector in the ExHyderabad State available to them for promotion, but under the Rules of 30th July, 1959, 50% of the vacancies were to be filled by direct recruitment and only the remaining 50% were available for promotion and that too on divisional basis. This according to the petitioners, constituted variation to their prejudice in the conditions of sence applic....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uited Mamlatdars as well as the promote Mamlatdars form 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 Meryn Coutindo v. Collector of Customs, Bombay([1956] 3 S.C.R. 600.) and S. M. Pandit v. The State of Gujarat(A.I.R. 1972 S.C. 252.). In fact S. M. Pandit's case (3) is directly in Districts of the present case are almost indistinguishable from S. M. Pandit's case (3 ) . 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 Constitution. Re : Ground C : The first question that would logically seem to arise under the ground of challenge is whether in the reorg....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as a Provincial or State cadre. Now it is true that under the Bombay Civil Services Classification and Recruitment Rules the service of Mamlatdars is regarded as a Provincial Service as distinguished from Subordinate Service, but that does not necessarily mean that it cannot be organised into divisional cadres. Ile only difference between Provincial service and Subordinate service recognised in these Rules is that whereas "appointments to Provincial services-shall be made by Government or by an authority empowered by Government in this behalf', "recruitment to Subordinate Service shall be made by Heads of Departments and those Heads of Offices to whom powers have been delegated subject to the provisions of these rules and under the general control of Government". There is nothing in the Rules which system that a Provincial service may not consist of divisional cadres. The, Organisation of Mamlatdars into divisional cadres cannot, therefore, be said to be in conflict with these Rules and on that account invalid. in fact we find legislative recognition of the constitution of divisional cadres of Mamlatdars in the Rules of 19th November, 1959 which are admittedly st....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he rule laid down in Government Resolution dated 29th July, 1963 and a common Statewide select list could also be made of Mamlatdars found fit for promotion as Deputy Collectors and promotion to the cadre of Deputy Collectors could be made on the basis of such Statewide select list, the State Government did not choose to follow this method and instead made promotions to the cadre of Deputy Collectors which was a State cadre on the basis of division select lists. The procedure followed by-the State Government for making promotions was as follows : The Review Committee prepared every year for each division a separate divisional select list of those Mamlatdars who were found fit for promotion as Deputy Collectors. Where Mamlatdars were brought on the divisional select list at the same time, their names were ordinarily arranged according to their seniority in the divisional cadre but in case of Mamlatdar ,of outstanding merit, a higher rank might be given to win in the divisional select list than that warranted by his seniority. Subject to this provision, the seniority of Mamlatdarsin the Divisional select list was determined by the date of their entry in the list. When a vacancy arose....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 each division, a combined State-wise 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 State-wise seniority list. This was the procedure followed by the State Government and it hag to meet the challenge of Art. 16 of the Constitution. 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 denial of equality of opportunity to Mamlatdars in the State in the mat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....vided he is selected on the application of the principle 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 promotion. The allotment of deemed dates of continuous officiation cannot help retrive those who have had no opportunity to be promoted as officiating Deputy Collectors, not on account of want of higher seniority or better merit, but purely on account of lack of adequate number of vacancies in the post of Deputy Collector arising in their division. Moreover, since the Officiating Deputy Collectors are still substantively Mamlatdars and it is in virtue of their being Mamlatdars that they are eligible to be promoted to the cadre of Deputy Collectors by confirmation, the combined seniority list of officiating Deputy Collectors is in truth and reality nothing but a combined select list of Mamlatdars prepared by unalgamating the divi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....stables was a district cadre' The promotion from the cadre of constables to the next higher cadre of head constables was made within the district by the Superintendent of Police on the basis of district wise select list of approved constables. The cadre of Head Constables was also a district cadre. The further promotion from the cadre of Head Constables to the cadre of Sub-Inspectors was made within the range by the Deputy, Inspector General of Police and for this purpose all the Head Constables in the range were considered as one group for promotion to the rank of Sub-Inspectors and promotion was made on the basis of rangewise select list of approved Head Constables. Whenever a vacancy In the post of Sub-Inspector of Police arose in a range, the Deputy Inspector General of Police of that range would make promotion from the select list of his range according to seniority and conversely if reversion were to take place, the junior most Head Constable officiating as Sub-Inspector in the range would revert. The cadre of Sub Inspectors wag thus clearly a range cadre. So far as the next higher cadre of Inspectors is concerned, that was a State cadre and promotion to that cadre was ma....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e which is what the petitioner is contending for, it seems to us that there is a good deal of force in the contention of the State that the three tier system works for 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. It will be seen from this analysis of the reasoning of the decision in Ram Saran's case([1964] 7 S.C.R. 228.) that far from negativing the contention of the petitioners, it goes a long way towards supporting it. In Ram Saran's case(1) the cadre of SubInspectors 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 promotional 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 v....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 Saran's 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 ill accord with the pattern of promotion in Ram Saran Is case([1641] 7 S.C.R. 228.) and was, therefore, valid. ....