TaxTMI 
TaxTMI 
1986 (4) TMI 351
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....son of repeated reorganizations of States, the Union of India 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 transferre....
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....irs of the State of Maharashtra, unless he is required, by general or 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 connec....
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....he State of Maharashtra and the State of Gujarat, for purposes of revenue administration, was divided into divisions which were 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 ....
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....l Service Executive Branch Deputy Collectors (Upper Division) and to direct that as far as practicable, 50 per cent of the substantive vacancies occurring in the cadre 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 w....
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.... used to be prepared on the basis of divisional seniority in their respective Divisions. In Ramchandra Shankar Deodhar and Ors. v. The State of Maharashtra and Ors. (1974)ILLJ221SC the second proviso to Rule 1 of 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 ....
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.... quota as far as it was practicable and, therefore, the promotions of Mamlatdars made between 1961 and 1963 were regular. The direct recruits thereupon filed a Letters Patent Appeal being Letters Patent Appeal No. 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 ....
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.... Court then summed up the further conclusions it had reached and gave the requisite directions for refraining the inter se seniority list. These conclusions and directions are as follows (at pages 1057-58) : (a) The quota system does 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 prec....
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....n the basis of actual or utilized vacancies but only the filled-up vacancies of the officers who had continued to officiate till retirement or death. The second contention was that the appointment of junior time-scale I.A.S. officers in the cadre of Deputy 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. ....
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....endently of the said two Resolutions was to decree an artificial and unnatural divorce between them. The Division Bench held, "Therefore, regularity of appointment is not any regularity which our forensic tests may warrant but it is the regularity in terms of those RESOLUTIONS." The 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 ....
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.... in Chauhan's case, it was not open to the direct recruits to reagitate this point. Although by reason of the Explanation which was inserted in Section 141 of the CPC, 1908, by the CPC (Amendment) Act, 1976, Section 11 of the Code does not in terms apply to any proceeding under Article 226 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. Th....
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.... of not less than, or there is reason to believe that they will not terminate within a period of three years. In all other cases, appointments in temporary posts should be made in an officiating capacity only. Instruction No.3 to Rule 71 is also illuminative. It provides as follows : Temporary 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 con....
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....that part of the said Appeal which is directed against dismissal of Special Civil Application No. 2199 of 1978 is concerned, the two contentions which were raised before the High Court and which have been set out above were also raised before us. The promoters had given up in the High Court the first contention 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 fur....