Supreme Court of India
G.K. DUDANI & ORS. ETC.versusS.D. SHARMA & ORS.
- Citation
- 1986 INSC 64
- Decided
- 6 April 1986
- Disposal
- Appeal(s) allowed
Holding
Promotees appointed to ex‑cadre and temporary posts during the 1960‑62 period were regular appointments and therefore entitled to seniority over direct recruits, and the High Court's contrary interpretation was reversed.
Summary
The case concerned the inter‑se seniority between direct‑recruits and promotees in the Gujarat Civil Service (Deputy Collectors) after the Bombay Reorganisation Act, 1960. Direct recruits argued that promotees appointed to ex‑cadre and temporary posts between 1960‑62 were not "regularly appointed" and therefore should not enjoy seniority, invoking the quota rule and res judicata. The Gujarat High Court had held otherwise, distinguishing between substantive and temporary appointments. The Supreme Court examined the Bombay Civil Service Rules, the quota provisions, and the Supreme Court’s earlier decision in N.K. Chauhan v. State of Gujarat, concluding that all promotees appointed during period A, whether to substantive, ex‑cadre or temporary posts, were regular appointments and entitled to seniority as per direction (d) in Chauhan’s case. It also held that the principle of res judicata barred re‑litigation of the issue. Consequently, the High Court’s judgment was partially reversed, the rule made absolute in the direct‑recruits’ writ was set aside, and the seniority list was upheld. The appeals were partly allowed (promotees’ appeal) and allowed (State’s appeal).
Issues considered
- The meaning of "promotees regularly appointed" under direction (d) in N.K. Chauhan v. State of Gujarat.
- Whether appointments to ex‑cadre or temporary posts during 1960‑62 qualify as regular appointments for seniority purposes.
- Whether the principle of res judicata applies to the writ petitions under Article 226.
- The applicability of the quota rule and its impact on seniority.
Legislation cited
- Bombay Reorganisation Act, 1960s. 80, s. 81, s. 82
- Code of Civil Procedure (Amendment) Act, 1976s. 141
Subjects
inter se seniorityquota ruletemporary postpermanent postres judicatacivil service recruitmentBombay Reorganisation ActCode of Civil Procedureseniority listpromotion
Judgment
250
A
G.K. DUDANI & ORS. ETC.
v.
+
S.D. SHARMA & ORS.
APRIL 6, 1986
B [R.S. PATHAK, A.P. SEN AN~ D.P. MADON, JJ.]
Bombay Civil Service Rules, 1959, Rule 9 - 'Cadre' - .~
Definition of - Temporary and permanent post - Difference
between Temporary post - Whether can be held in substantive
capacity • .
c
Bombay Reorganisation Act, 1960, ss. 80 and 82 -
lnter-se seniority between direct recruits/promotees to the
cadre of Deputy Collector - Gujarat Civil Service Class I and •
Cluss 11.
D Code of Civil Procedure, 1976, s.11 - Principle of res-
judicata - Whether applicable to writ petitions under Article
226.
The dispute in these appeals relates to the inter se
seniority between the direct-recruits and promotees-u;-the
E cadre of Deputy Collectors formerly designated as 'Bombay
Civil Service Executive Branch : Deputy Collectors (Upper
Division)' and now designated as "Gujara~ Civil Service Class •
I and Class II". In the predecessor Province of Bombay the
source of recruitment to the posts of Deputy Collectors used ~j
to be Mamlatdars who were promoted as Deputy Collectors. In
F 1939, direct recruitment policy was also introduced for this
post, but during the years 1950 to 1959 the scheme of direct i..
recruitment to the cadre of Deputy Coll~ctors was
discontinued. However, the Bombay Government by its Resolution
dated 30.7.59 again revived the scheme of direct recruitment
and fixed the ratio of appointment by the direct recruits and
G the promotees as 50:50 as far as practicable.
On 1. 5.1960 the Bombay State was bifurcated into Gujarat .Y
and Maharashtra. During the period 1960-62 no direct-recruits
were appointed to the posts of Deputy Collectors due to
administrative difficulties and 61 Hamlatdars were promoted to
H those posts. However, since 1963 onwards, the direct-recruits
G.K. DUDANI v. S.D. SHARMA 251
A
,+.also came to be appointed. The Government of Qijarat issued on
Dec. 12, 1971 a seniority list as on Jan. 1, 1971. The list of
the prOlllOtees was prepared on the basis of their continuous
length of service and the list of the direct-recruits was
prepared on the basis of the dates of their respective
appointments. A combined seniority list showing s~niority B
inter se between the promotees and the direct-recruits was
also p;;pared. The direct-recruits challenged the aforesaid
-"ir seniority list before the High Court and the matter ultimately
came up before the Supreme Court in N.K. Chauhan and Ora. v.
State of Qijarat and Ora., (1977) 1 S,C,R, 1037, The Supreme
Court, after discussing the case law, sumned up its
conclusions and gave the requisite directions for reframi.ng c
} inter !!!_ seniority as under :
~.~
a. The quota syste. does not necessitate the
adopticm of the rotaticmal · rule in practical
applicaticm. Many ways of working out 'quota'
prescription can be devised of which rota is D
certainly one.
b. While laying down a quota when filling up
vacancies in a cadre fa. more than cme source, it
is open to Govenmmt, subject to tests under Art.
16 to choose 'a year' or other period or the E
vacancy by vacancy basis to work out the quota
llllDllg 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 F
implementing the quota rule.
c. Seniority, nomall.y is -ured by length of
officiating service - The actual is
CCHltfD!l(JQ8,
easily accepted as the legal. This does not
preclude a different prescription, constitutionally G
tests being satisfied.
do A periodisation is needed in the case to settle
rightly . the relative claims of promotees and
direct recruits.- 1960-62 form period A and 1962
omards form period B. Promteea regu!Uly H
252 SUPREME COURT REPORTS [1986] 2 s.c.R.
A
appointed during period A in eveBB of their quota, +-
for want of direct recruita (reasonably sought but
not secured and because tarrying longer would
injure the administration) can clafa their whole
length of service for seniority even against direct
recruits wbo may turn up in succeeding periods.
B
e. Prc.>tees 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 fsll to be filled up. To
C that extent they will step down, rather be pushed
down as against direct recruits who were later but {
regularly appointed within their quota." 1
~
The Government of Gujarat accordingly prepared a
seniority list pursuant to the directions given by the Supreme
D Court in <bin•h!m's case. The direct recruits and the promotees
again filed writ petitions before the Gujarat High Court chal-
lenging the aforesaid seniority list. The main contention of
the direct recruits before the High Court waa that there were
only 30 substantive vacancies in the permanent strength of the
Deputy Collectors cadre and the balance of 31 vacancies was in :.-
E the temporary posts created by the said Government or ex-cadre
posts and consequently the 31 promotees could not be deemed to
be regularly appointed as required by direction 'd' given in ,.._
<biniban's case. On the other hand, the promotees contended
that quota was not distributed on the basis of actual or uti- ~
lised vacancies but only the filled up vacancies of the
F officers who had continued to officiate till retirement or
death. Accepting the contention of the direct recruits, the ')
Division Bench of the High Court observed that the officers
promoted during the period 'A' to the posts of Deputy
Collectors fell in four categories,- namely,
G (i) Promotees appointed to substantive vacancies in
the cadre of Deputy Collectors.
(ii) Promotees appointed to hold ex-cadre posts.
(iii) Promotees appointed to temporary posts -
H cadre posts or ex-cadre posts.
G.K. DUDANI v. S.D. SHARMA 253
A
(iv) Promotees who were first placed on conditional
select list during period 'A' and were placed on
unconditional select list after their performance
was found satisfactory.
The High Court held: (a) that the promotees falling under B
category No. (1) in excess of their quota would be senior to
-·y subsequently appointed direct recruits in accordance with
their length of continuous officiating setvice; (b) that so
far as the last · category is concerned, the Mamlatdars were
placed on a conditional select list and were appointed to hold
the posts of Deputy Collector and if their performance was
· .found satisfactory during the trial period, they would be C
confirmed in those posts and that such confirmation had noth-
ing to do with the length of continuous officiating service of
such Mamlatdars and that it was the placement of the
Mamlatdars en the select list which was material. As regards
the second and the third ca~egories, the Di.vision Bench held
that the expression "promotees regularly appointed during the D
period A in excess of their quota" had a di.rect reference to
promotees regularly appointed in substantive vacancies which
~ occurred in the cadre of Deputy Collector between 1960 and
1962 and that reading the principle· laid down in the direction
'D' in Qun•han's case in the light of the Government Resolu-
tion of 1959, promotees appointed in substantive vacancies E
which occurred in the cadre of Deputy Collectors during the
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
f appointed to ex-cadre posts could not be said to be regularly F
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 sQbstantive vacancies in the cadre of Deputy Collectors
and, therefore, those who were promoted to the posts of Deputy G
Collectors for being appointed to hold temporary posts could
not be said to have been "regularly appointed" within the
meaning of the decision in Qunduin's case.
!\].lowing the appeal of the State in full and that of the
proaoteei;.-appellants in part, H
254 SUPREME COURT REPORTS [1986] 2 s.c.R.
A
+
HELD : 1.1 The judgment of the Division Bench of the High
Court in so far as it held that "promotees appointed to
ex-cadre posts" and "promotees appointed to temporary posts,
cadre posts or ex-cadre posts" were not regularly appointed
during period A and, therefore, were not covered by direction
(d) in Oia•ihan's case, was clearly wrong and is hereby
B reversed. (275 E-F]
1. 2 It was not open to the direct recruits to contend
before the High Court that promotees appointed to hold
ex-cadre posts and temporary posts, whether cadre posts or
ex-cadre posts, were not regularly appointed during period 'A'~
c and the High Court after perusing Chat.tum 's case was in error ,
in permitting them to raise this contention. This contention
had been raised by the direct recruits in their earlier writ
petition, namely, Special Civil Application No. 1401 of 1972
and the learned Single Judge of the High Court had rejected
this contention and had held that the appointments of· the
D promotees between 196 l and 1963 were regular. The Di vision
Bench of the High Court also did not disturb this finding nor
was this finding upset by the Supreme Court in Cbatiben '•
case. (272 B-£] ).-
1.3 Although by reason of the Explanation which was
E inserted in s. 141 of the Code of Civil Procedure by the Code
of Civil Procedure (Amendment) Act 1976, s. 11 of the Code
does not in terms apply to any proceeding under Art. 226 of
the Constitution, the principle of !!:!. judicata does apply to ~
all writ petitions under Art. 226. This point was, therefore,
barred by the principle of !!:!. judicata and should never have 'f
F been allowed by the High Court to be reagitated. (272 F-H]
2. The interpretation placed by the Division Bench upon
the words "promotees regularly appointed" in direction (d) in
Chauban's case was wholly erroneous. Under the guise of
interpreting the judgment in that case, the Division Bench of
G the High Court virtually sat in appeal over the judgment of
the Supreme Court and modified it. The High Court ought to r
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 the
Supreme Court. The Division Bench ignored the fact that the
H Supreme Court had categorically held that in the case before
it the appointments had ~8' rVilil£~•v llllf Ml fSSOr:l'P6' 1'{1U
G,K, DUDANI v. S.D. SHARMA 255
A
the rules to fill substantive vacancies. Further, copies of
the relevant Gazette notifications clearly bear out not only
this fact but also show that the appointments of these
promotees were regularly made. [273 A-C]
In the instant case, the record shows that during period B
'A' there were thirty vacancies in permanent posts and
-·y thirty-one vacancies in temporary additional posts• These
thirty-one posts were created initially for a period of one
year but renewed from year to year from 1960 onwards and have
been in existence continuously since then. These temporary
additional posts were, therefore, not fortuitous posts created
for the purpose of special tasks but formed an integral part c
of the regular cadre, and appointments to those posts were
made from the approved select list of Mamlatdars prepared in
consultation with the Gujarat Public Service Comnission.
[273 D-'F]
3.1 Rule 9(8) of the Bombay Civil Service Rules, 1959, D
defines "cadre" as meaning the strength of a service or a part
of service sanctioned as a separate unit. The service of
Deputy Collectors is admittedly a separate unit under the
~ Revenue Department. A cadre consists of permanent posts and
temporary posts added to the cadre from time to time according
to the exigencies of the service. The difference between E
permanent and temporary posts is brought out by the definition
of these expressions given in Rule 9. Under Rule 9(43), a
'I- permanent post is a post carrying a definite rate of pay sanc-
tioned without limit of time and under Rule 9(56) a temporary
post is a post carrying a definite rate of pay sanctioned for
) a limited time. Rule 71 sets out the manner of fixation of pay F
of the officer appointed to a temporary post. Even officers
holding permanent posts are of ten deputed to hold an ex-cadre
post. It was, therefore, illlllllterial whether these promotees
after being appointed Deputy Collectors were deputed to hold
an ex-cadre post or not. [273 F-11; 274 A)
G
3. 2 The position that a temporary post can be held in a
substantive capacity is now firmly established by the.
decisions of the Supreme Court. All persona holding
subst~tive posts or temporary posts in substantive capacity
are llellbers of the service. A person can be said to hold a
post, perllllllellt or te11porary, in a substantive capacity only H
if hie appoJ,nt11e11t to that post is ~t fottuitoue or ad
256 SUPREME COURT REPORTS [1986] 2 s.c.R.
A
llale"'-r Dass & Ors. etc. v.State of U.P. and Ors. +
etc •• [1981] l s.c.R. 449 and o.P. Sfngla and Aor. v. &ion of
India &Ors., [1984] 4 s.c.c. 450, relied upon.
Rwc:lumdra S!umkar Jleodhu and Ors. v. 1be State of
B Maharashtra & Ors., [1974) 2 S.C.R. 216 and N.K. llia•ihan and
On. v. State of Qijarat & On.• [1977] 1 S.C.R. 1037,
referred to. y
CIVIL APPELLATE JURISDICTION Civil Appeal No. 2359 of
1980.
c
From the Judgment and Order dated 18/19th March, 1980 of ~
the Gujarat High Court in Spl. Application Civil No. 2199 of -
1978. •
AND
D
Civil Appeal No. 1816 of 1980.
From the Judgment and Order dated 18/19th March, 1980 of
the Gujarat High Court in Spl. Civil Application No. 1407 of
1978. >--
E
P.H. Parekh and Ms. Indu Malhotra for the Appellants in
C.A. No. 2359 of 1980.
G.A. Shah and R.N. Poddar for the Appellants in C.A. No. ~
1816/80 and for Respondent No.5 in C.A. 2359/80.
F
Rajiv Dutt for Respondent No. 3 in both the appeals. }
S.K. Dholakia, P.C. Kapoor, B.S, Gupta and R.C. Bhatia
for Respondents 1, 2 and 4 in both the appeals.
G G.A. Shah for the State of Gujarat.
The Judgment of the Court was delivered by
MADOll, J. On January 26, 1950, when the Constitution of
India came into force, under Article l read with the First
H Schedule to the Constitution, India became a Union of States
G.K. DUDANI v. S.D. SHARMA [MADON,J,) 257
A
-4 consisting of nine Part A States, nine Part B States and ten
Part C States, Under Article 3, Parliament has the power oy
law to form a _new State by separation of territory from any
State or by uni ting two or more States or parts of States or
by uniting any territory to a part of any State; increase the B
area of any State; diminish the area of any State; alter the
boundaries of any State; or alter the name of any State. By
~ reason 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 c
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.
D
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
--1 coomencement of the Constitution, the territory of the State
of Bombay comprised the territories which before the E
coomencement 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 of other States were transferred to F
the State of Bombay and the territories of the State of
'( Saurashtra and the State of Kutch were comprised in the new
State of Bombay which emerged as a result of this reorganiza-
tion. Part X of this Act consisting of sections 114 to 118
made provisions with respect to All-India Service and other
services. Section 115 made provisions relating to other G
services. Under it, allotment of personnel of the State
Services serving in a reorganized State as existing on the
~ date of the reorganization of States was to be made either to
a successor state or to the original State in the manner
provided therein.
H
Each Act providing for reorganization of States contains
similar provisions. lbus, a transfer of territories results in
258 SUPREME COURT REPORTS [1986] 2 S.C.R.
A
a transfer of service personnel. Those who have been so f-
transferred have found themselves higher or lower in seniority
in the same cadre than in their original State. The question
of corresponding posts and "the deemed date of appointment"
has been a knotty one and much administrative ingenuity has
been applied in unravelling the tangle created by political
B expediency. Solutions to this question have resulted in giving
an advantage to some in promotional matters while the hopes of )'
promotion of others have foundered between the Scylla of
political expediency and the Charybdis of administrative
ingenuity. Subsequent reorganizations involving the same
States have led to these problems multiplying like Pelion
c piled on Ossa. The second reorganization of the State of ~
Bombay by the Bombay Reorganization Act, 1960, has not proved ·
an except ion to this rule and the problems raised by it have
reached this Court but even the judgments of this court have
failed to provide a final solution as is illustrated by the
present Appeals.
D
As we are concerned in these Appeals with.services other
than All India Services, we need refer only to those
provisions of the Bombay Reorganization Act which concern
these services. Sub-sections (1) to (3) and (6) of Section 81 >-
of the said Act provides as follows :
E
81. Provisions relating to other services.
(1) Every person who, immediately before the~
appointed day, is serving in connection with the
affairs of the State of Bombay shall, as from that
F day, provisionally continue to serve in )
connection with the affairs 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.
G
(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
H and the date with effect from which such allotment
G.K. DIJDANI v. S.D. SHARMA [MAOON,J,] 259
shall take effect or be deemed to have taken A
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 B
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 x
c
( 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 D
Maharashtra or Gujarat :
Provided that the conditions of service applicable
immediately before the appointed day to the case of
any person provisionally or finally allotted to the
State of Maharashtra or Gujarat under this section E
shall not be varied to his disadvantage except with
the previous approval of the Central Government."
Section 82 of the said Act provides as follows
"82. Provisioos as to conUooance of officers in F
same post.
Every person who, immediately before the appointed
day, is holding or discharging the duties of any
post or office in connection with the affairs of
the State of Bombay in any area which on that day G
falls within the State of Maharashtra or Gujarat
shall c~ritinue to hold the same post or office in
that State and shall be deemed, as from that day,
to have been duly appointed to the post or office
by the Government of, or other appropriate
authority in, that State : H
260 SUPREME COURT REPORTS [19861 2 s.c.R.
A
Provided that nothing in this section shall be·+
deemed to prevent a competent authority, after the
appointed day, from passing, in relation to such
person, any order affecting his continuance in such
post or office."
B Under section 87, all laws which were in force in the
territories of the State of Bombay prior to the coming itito )#"
force of the said Act continue to apply both in the ·State of
Maharashtra and the State of Gujarat until otherwise provided
by a competent legislature or o1;her competent authority. The
term 'law' is defined in clause (d) of.section 2 as follows :
c
"(d) 'law' includes any enactment, ordinance,
regulation, order, bye-la111, rule, scheme,
notification or other instrument having illlD.ediately
before the appointed day, the force of law in the
whole or in any part of the State of Bombay".
D
Under clause (a? of section 2 the expression "appointed day"
means "the 1st day of May, 1960".
The dispute in these Appeals relates to the inter se >--'
seniority between the direct recruits and promotee~ the
E cadre of Deputy Collectors formerly designated as "Bombay
Civil Service Executive Branch : Deputy Collectors (Upper
Division)" and now designated as "Gujarat Civil Service Class
I and Class II". This cadre is recognized for recruitment to
the Indian Administrative Service by the relevant Recruitment·~'
Rules.
F
The State of Bombay prior to ·its division into the State 1
of Maharashtra and the State of Guj srat, for purposes of
revenue administration, was divided into divisions which >iere
separate units for promotional prospects, incidence of
transfer, etc., of Deputy Collectors, In the predecessor
G 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
H
seniority between the promotees snd the direct recrultii:'
G. K. DUDANI v. S. D. SHARMA [MADON, J. ] 261
A
-f-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 B
seniority of direct recruits and promoted officers
-y in the provincial services (except the Bombay
Services of Engineers, Class I)
(i) In the case of direct recruits appointed sub-
stantively on probation, the seniority should be
determined with reference to the date of their c
appointment on probation.
(ii) In the case of officers promoted to
substantive vacancies, the seniority should be
determined with reference to the date of their
promotion to the substantive vacancies, provided D
there has been no break in service prior to their
confirmation in those vacancies."
"'-< Thereafter, the promotee officers through their
Association made a representation to the Government that since
direct recruits were confirmed immediately on the expiration E
of their probation and promotees were not so confirmed, it
would adversely affect their prospects of promotion. By its
reply dated January 11, 1949, the Government replied to the
't said Association as under :
"ConfiI'lllltion of direct recruits to the cadre F
Collectors :
The officers appointed by direct recruitments and
those appointed by promotion are confirmed in
vacancies reserved for their respective classes.
If, therefore, a clear vacancy in the cadre of G
Deputy Collectors reserved for a direct recruit
occurs earlier, it is natural that such a recruit
should be confirmed earlier. The seniority of such
a direct recruit vis-a-vis a promoted officer is
not, however, determined according to the date of
confirmation but according to the principles laid H
down in Government Resolution, Political and
262 SUPREME COURT REPORTS [1986] 2 s.c.R.
A
Services Department No. 4283/34 dated the 21st -+--
November 1941 i.e. with references to the date of
first appointment on probation in the case of the
direct recruit and of continuous officiation in the
case of the promoted officers. The promoted
officers, therefore, can have no grievance in this
B behalf."
y-
From 1950 until 1959 the scheme of d•rect recruitment to
t~e r~i~~ oi uep~t) Cvlke~:ors was abandoned but it was again
tevived in 1959 by a Resolution dated July 30, 1959, issued by
the Government of Bombay, Revenue Department. The said
c Resolution was as follows :
i-
"Government had for sometime under consideration...( •
the question of reviving the system of direct ·
recruitment to the cadre of Deputy Collectors. It
has now been decided that in the inter_est of
D administration the revival of that system is quite
necessary. Government is accordingly pleased to
cancel the orders contained in Government
Resolution No. 9313/45, dated 6th February, 1950
and those in Government Resolution No. 9313/45, >--
dated the 24th July 1951, in so far as they relate
E to the recruitment of Bombay Civil 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
F selected in accordance with the rules appended i'-
herewith. -
2. The Political and Services Department should be
requested to issue necessary correction slips to
the Bombay Civil Services Classification and
G 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 I is as follows :
H
G.K. DUDANI v. S.D. SHARMA [MAOON,J.] 263
A
" 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 B
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." C
-t
• l.. 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 Recruitment Rules. The said Rule 2 also prescribed the D
qualifications for candidates desiring to appear in the said
examination. Amongst the qualifications so prescribed was that
the candidates should "possess adequate knowledge of Marathi
--< or Gujarati." Rules 3 and 4 of the Recruitment Rules were
as follows
E
. "3. Candidates appointed by nomination shall be on
probation for a period of two years, the probation
being regulated according to the rules appended
hereto as Annexure II.
4. After appointment as Deputy Collector, whether F
by nomination or by promotion, the selected
candidate will have to pass the prescribed
examinations in Hindi and in a regional language
according to the prescribed rules."
Following upon the reorganization of the States, Revenue G
Divisions were abolished and by a Circular of the Government
of Bombay dated February 3,' 1960, the legal fiction of "deemed
dates on the co11111E!ncement of service" for the purpose of- inter
se seniority of personnel drawn from different pre-reorganiza~
tion States and from the Division was abolished. The Circular
H
264 SUPREME COURT REPORTS [1986] 2 s.c.R.
A
applied to all the services and consequently the cadre of +
Deputy Collectors stood converted into a State-wide cadre. On
the State of Gujarat coming into existence a similar notifi-
cation was issued by the Goverrunent of Gujarat on May l, 1960.
Thereafter, the Goverrunent of Gujarat issued another circular
B
dated May 27, 1960. The said circular is as follows
"Doubts have arisen as respects the directions
given under Goverrunent Circular No. GSF-1060 dated ~
the lst May, 1960.... To remove any doubt in that
behalf, therefore, Goverrunent is pleased to direct
c that the following Explanation shall be and shall
be deemed always to have been added to the said
circular, namely - -+
Explanation. - Nothing herein shall apply to ~
appointments of officers, authorities or persons or
D
to the constitution of tribunals or other bodies
which may be made by Government on or after the 1st
May, 1960 and the conditions of service of the
officers, authorities or persons appointed or the
members of the Tribunals or bodies so constituted."
E
Until then the select list of Mamlatdars fit to be appointed
as Deput.Y Collector used to be prepared on the basis of
divisional seniority in their respective Divisions. In
Rallchandra Sbankar Deodhar and others v. The State of
Maharashtra and others, [1974] 2 s.c.R. 216 the second proviso
to Rule 1 of the Recruitment Rules was held by this Court to
F
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.
G 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 Goverrunent sent a requisition for twelve
October 31, 1961, the Goverrunent sent a requisition for twelve
H
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
G.K. DUDANI v. S.D. SHARMA [MAOON,J,] 265
-+ 2 of the Recruitment Rules that the candidate should possess A
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 the State of Maharashtra B
consisted of the territories of the State of Bombay of which
the predominant language was Marathi and the City of Bombay of
f which Marathi was not the predominant language. Considerable
correspondence took place between the Coumission and the
Government. Ultimately, a competitive examination for the
posts of Deputy Collectors was held in July 1962. The results
of this examination were declared in January 1963 and the c
.f Connnission sent its recommendations in February 1963. The
.. ·~Government thereupon issued orders for appointment of the
candidates so selected by the Public Service Coumission in May
1963, Thus, in 1963 and later the direct recruits came to be
appointed. The Government of Gujarat issued on December 12,
1971, a seniority list as on January 1, 1971. The list of the D
promotees was prepared on the basis of their continuous length
of service and the list of the direct recruits was prepared on
the basis of the dates of their respective appointments. A
-i_ combined seniority list showing seniority inter se between the
promotees and the direct recruits was also prepared. It may
be mentioned that ever since 1941 in the Province of Bombay E
and thereafter in the State of Bombay and subsequently in the
State of Gujarat the principle of continuous officiation had
been admittedly followed. The direct recruits filed a writ
-fl>etition in the Gujarat High Court being Special Civil appli-
cation No. 1401 of 1972 challenging the said seniority list •
.{The parties, apart from the State of Gujarat, namely, the F
promotees and the direcc recruits, were arraigned in a
representative capacity in the said writ petition. The
grievance of the direct recruits was that the promotees who
were promoted during the period 1960 to 1963 were given
seniority over those directly recruited in 1963 and later. It
was their contention that as the appointments to the cadre of G
Deputy Collectors were made on the basis of a quota alloca-
/'-'{tion, a system of rotation should also apply. A learned
Single Judge of the Gujarat High Court by his judgment dated
November 30, 1973, dismissed the said writ petition holding
that Rule 1 of the Recruitment Rules required implementation
of the quota as far as it was practicable and, therefore, the H
I
266 SUPREME COURT REPORTS [1986] 2 s.c.R.
A
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 promotees had not been appointed in.substantive vacancies,
but were appointed in such vacancies only on the date on which
B 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 Y
promotees 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
c Division Bench. By its judgment delivered on November 1,
1976, and reported as N.L Qatihan and others v. State of1_
Qijarat and others, [1977] 1 s.c.R. 1037 this Court partly •
allowed the said appeal filed by the promotees.
In Chauban's Case the Court accepted the explanation
D . given by the State of Gujarat for its inability to hold the
examination. The Court sumarized the conclusions it had
reached as follows (at page 1053) :
"1. - ~ pr<iB>tions of mamlatdars made by Govenaent y_
bet1ill!en 1960 and 1962 are saved by the 'as far as
E practicable' proviso and therefore valid. Here i t
falls to be noticed that in 1966 regular rules have
been jramed for promotees and direct recruits
flowing into the pool of Deputy Collectors on the
same quota basis but with a basic difference. The -1"'
saving provision 'as far as practicable' has been
F deleted in the 1966 rules. The consequence bears
upon seniority even if the year is treated as the. f.
unit for quota adjustment.
2. If any promotions have been made in excess of
the quota set apart for the -1atdars after rules
G in 1966 liilere Jlllde, the direct recruits have a
legitimate right to c:laia that the appointees in
excess of the allocable ratio from smug -1.atdars r-- ~
will have to be pushed dallll to later years when
their promotions can be regularised by being
absorbed in their lavfal quota for those years. To
H simplify, by illustration, if 10 deputy collectors'
G.K. DUDANI v. S,D, SHARMA (MADON,J,) 267
A
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 cannot claim to be regularly appointed on
a permanent basis. For the time being they occupy
B
the posts and the only official grade that can be
extended to them is to absorb them in the subse-
quent vacancies allocable to promo tees. This will
have to be worked out down the line wherever there
has been excessive representation of promotees in
the annual intake •••••
3. 1he quota rule does not, inevitably, invoke the
c
application of the rota rule. The impact of this
position is that if sufficient number of direct
recruits have not been forthcoming in the years
since 1960 to fill in the ratio due to them and
those deficient vacancies have been filled up by
D
promotees, later direct recruits cannot claim
'deemed' dates of appointment for seniority in
service with effect from the time, according to the
rota or turn, the direct recruits' vacancy arose.
Seniority will depend on the length of continuous
officiating service and cannot be upset by later
E
arrivals from the open market save to the extent to
which any excess promotees may have to be pushed
down as indicated earlier."
{Emphasis supplied.)
~ After discussing the case law, the Court then sUDJDed up the F
further conclusions it had reachedand gave the requisite
directions for reframing the inter se seniority list. These
conclusions and directions are ss follows (at pages 1057-58) :
"(a} 'l:be quota SJllbs does DOt neceaaitate the
adoption of the rotational rule .in practical G
application. Many ways of. working out 1 quota'
prescription can be devised of which rota is
certainly one.
(b} While laying down a quota when filliug up
vacancies In a cadre frca more than one ~. it H
ii_,
-~
268 SUPREME COURT REPORTS (1986] 2 S.C.R.
A
is open to Government, subject to tests under Art. +
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 propos-
ed, that there is no invalidity, administrative
B technology may have free play in choosing one or
othe1 of the familiar processes of implementing y-
the quota rule. We, as Judges, cannot strike down
the particular scheme because it is unpalatable to
forensic taste.
c ( 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 (d) A periodisation is needed in the case to
settle rightly the relative claims of promotees
and direct recruits. 196()-62 forms period A and
1962 onwards foI'lllll period B. Proontees 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
-
E
injure the administration) can claia their whole
length of service for seniority even against direct
recruits who may turn up in succeeding periods.
F (e) Prc.>tees who have been fitted into vacancies J
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
G down as against direct recruits who were later but
regularly appointed within their quota."
(Emphasis supplied.) r---'
Thereafter, on January 19, 1978, the Government of
Gujarat prepared a seniority list pursuant to the directions
ll given by this Court in Clauhan's Case. Thereupon, in March
G.K. DUDANI v. S.D. SHARMA [MADON, J,] 269
·"""- 1978 the direct recruits filed a writ petition in the Gujarat A
High Court being Special Civil Application No. 1407 of 1'178
challenging the said seniority list dated January 19, 1978.
This writ petition was also filed in a representative capacity
and the parties thereto are the same as in the earlier writ
petition, namely, Special Civil Application No. 1401 of 1972,
save that as N. K. Chauhan had retired, G. K. Dudani has been B
--,. joined as a party in his place. The main contention of the
direct recruits in the said Special Civil Application No.
-
1407 of 1978 was that there were only thirty substantive
vacancies in the permanent strength of the Deputy Collectors'
cadre and the balance of thirty-one vacancies was in the
temporary posts created by the State Government or ex-cadre
.:+ posts and consequently the thirty-one promotees could not be c
,., ... deemed to be "regularly appointed" as required by direction
'd' given in Oiauban's Case.
In October 1978 the promotees also filed a writ petition
in the Gujarat High Court, being Special Civil Application No.
2199 of 1978, challenging the said seniority list of January D
19, 1978, raising two contentions. The first contention was
that quota was not distributed on the basis of actual or
~-f 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 E
Collectors was irregular because the relevant rule prescribed
only two sources of recruitment, namely, promotion from lower
't· rank and direct recruitment. We may mention that the second
contention raised by the promotees was given up as it
I transpired at the hearing of the said writ petition that the
junior time-scale I.A.S. officers were appointed to the posts F
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.
Both the said writ petitions were heard together by a
Division Bench of the ·Gujarat High Court. Accepting the above G
contention 0f 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,
H
270 SUPREME COURT REPORTS [19861 2 s.c.R.
A
(i) Promotees appointed to substantive vacancies in~'
the cadre of Deputy Collectors.
(ii) Promotees appointed to hold ex-cadre po~ts.
(iii) Promotees appointed to temporary posts -
cadre posts or ex-cadre posts.
B
(iv) Promotees who were first placed on
r
-
conditional select list during period A and were
placed on unconditional select list after their
performance was found satisfactory.
c So far as the first category is concerned, it was+
conceded by the direct recruits at the hearing of the said..& •
writ petitions and, in our opinion, rightly so, that promotees-
falling under that category in excess of their quota would be
senior to subsequently appointed direct recruits in accordance
with their length of continuous officiating service. So far as
D
the last category is concerned, the Division Bench rejected
the contention of the direct recruits and observed that t'
Mamlatdars were placed on a conditional select list and were
appointed to hold the posts of Deputy Collector and if their r'
performance was found satisfactory during the trial period,
they would be confirmed in those posts and that such
E
confirmation had nothing to do with the length of continuous
officiating service of such Mamlatdars. The Division Bench
..
held, and in our opinion, rightly, that it was the placement ;-
of the Mamlatdars on the select list which was material. --i
This finding of the Division Bench is not challenged in the
Appeal before us filed by the direct recruits. )
F
The only dispute before us, therefore, revolves round the
second and the third categories. According to the Division
Bench, the question which fell for consideration with respect
to these categories was whether the expression "promotees
regularly appointed" used in the said direction (d) in
G
Chauban's case meant a regular appointment in the regular
course to a cadre post as contra-distinguished from ad hoc ...._____
appointment or appointment to an ex-cadre post. According to-=:--
the Division Bench, the expression "promotees regularly , ·
appointed during period A in excess of their quota" had a
H
G.K. DUDANI v. S.D. SHARMA [MADON, J.] 271
·)..direct reference to promotees regularly appointed in substan- A
tive vacancies which occurred in the cadre of Deputy Collector
between 1960 and 1962. According to the Division Bench, the
concept of regular appointment which was laid down in
Qiauhan's case was indissolubly wedded to the said Government
Resolution of 1959 read with the said Government Resolution of
1941 and, therefore, to read the said direction independently B
~ 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
;f the light of the said Government Resolution of 1959, promotees c
.. ,i..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
D
Deputy ~ollectors for being appointed to ex-cadre posts could
not be said to be regularly appointed because their appoint-
ments were not in substantive vacancies in terms of the said
·--1 Government Resolution and that the seniority of those who were
so promoted had to be determined from the dat<! 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 temprorary
E
fposts. According to the Division Bench, they could not be said
to have been "regularly appointed" within the meaning of the
·~·decision in Cliauhan's case. The Division Bench observed :
F
"A temporary post and a substantive vacancy go ill
together. There can be a substantive post and a
temporary vacancy but it is difficult for us to
think that there can be a substantive vacancy in a
temporary post. The very fact that the post is
temporary militates against there being a substan- G
tive vacancy in that post. We are, therefore, of
the opinion that the Mamlatdars who were, during
period A, promoted to the posts of Deputy
Collectors and appointed to hold temporary posts
could not claim seniority in terms of the length of
H
272 SUPREME COURT REPORT~ (1986] 2 s.c.R.
A
their continuous officiating service from the date~
or dates of such promotions. They can claim senior-
ity in the cadre of Deputy Collectors only from the
date or dates from which they were appointed to the
posts of a Deputy Collector in substantive
vacancies in the cadre of Deputy Collectors.
B
In our opinion, it was not open to the direct recruits to
contend in their Special Civil Application No. 1407 of 1978 Y'"
that promotees appointed to hold ex-cadre posts, and temporary
posts, whether cadre posts or ex-cadre posts, were not
regularly appointed during period A and the High Court after
c perusing Cliauban's case was in error in permitting them to
raise this contention. This contention had been raised by the-{-
direct recruit.s in their earlier writ petition, namely, I -<I
Special Civil Application No. 1401 of 1972. The learned Singl~
Judge had rejected this contention and had held that the
appointments of the promotees between 1961 and 1963 were
D regular. Though this point was taken in the Memorandum of
Appeal in the letters Patent Appeal filed by the direct
recruits, the Division Bench which heard this appeal did not
disturb this finding nor was this finding upset in Qiauban' s
case. On the contrary, in Qiauban 's case this Court observed )-"
(at page 1055)
E
"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 th~·
-
promotees have exceeded their quota, direct
F recruits being unavailable."
.1
In view of this categorical finding in Cliauban'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 Code of Civil Procedure, 1908, by the Code
G of Civil Procedure (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 ~ judicata and should
never have been allowed by the High Court to be reagitated.
H
G. K. DUDANI v, S. D. SHARMA [MADON, J. ] 273
A
.J.- Even apart from the question of ~ judicata, the
Division Bench was not right in its approach to Ciauban's
case. The interpretation placed by the Divison Bench upon the
words "promotees regularly appointed" in direction (d) in
<llauhan's case was wholly erroneous. Under the guise of B
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
r 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
c
-;+ had been regularly made in accordance with the rules to fill
• ;.substantive vacancies. According to the Division Bench,
direction (d) in "'atihan's case meant that these appointments
should be regularly made only to the vacancies in the
permanent posts in the cadre and did not apply to promotees D
appointed to hold ex-cadre posts. The record shows that
during period A there were thirty vacancies in permanent posts
and thiry-one vacancies in temporary additional posts. These
thirty-one posts were created initially for a period of one
..,_,year but renewed from year to year from 1960 onwards and have
been in existence continuously since then. These temporary E
additional posts were, therefore, not fortuitous posts created
for the purpose of special tasks but formed an integral part
... of the regular cadre, and appointments to those posts were
made from the approved select list of Mamlatdars prepared in
•,;-consultation with the Gujarat Public Service Commission. The
mode of appointment to these posts was to appoint first a F
\ particular officer to the cadre post of Deputy Collector and
I to continue him as Deputy Collector or depute him to other
Departments in equivalent posts. Rule 9(8) of the Bombay Civil
Service Rules, 1959, defines "cadre" as meaning the strength
of a service or a part of service sanctioned as a separate
unit. The service of Deputy Collectors is admittedly a G
separate unit under the Revenue Department. A cadre consists
of permanent posts and temporary posts added to the cadre from
'-{ time to time according to the exigencies of the service. The
difference between permanent and temporary posts is brought
out by the definition of these expressions given in Rule 9.
Under Rule 9( 43), a permanent post is a post carrying a H
definite rate of pay sanctioned without limit of time and
274 SUPREME COURT REPORTS [1986] 2 S.C.R.
A under Rule 9(56) a temporary post is a post carrying a-1-
definite rate of pay sanctioned for a limited time. Rule 71
sets out the manner of fixation of pay of the officer
appointed to a temporary post. The note below Rule 8 is
illuminative and is as follows :
"Substantive appointments to temporary posts should
B
be made in a limited number of cases only, as for ,__
example, when posts are, to all intents and r
-
purposes, quasi permanent or when they have been
sanctioned for a period 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,
c 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
D
"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, l
the only distinction being that the new posts are )-<- 1_5,
temporary, and not permanent and (ii) isolated post
created for the performance of special task
E
unconnected with the ordinary work which a service
is called upon to perform. An example of the latter
..
type of post is on a conmrlssion on enquiry. A
distinction by strict verbal definition is -1"
difficult, but in practice there should be little
difficulty in applying the distinction in ·)
F
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
G
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.".
H
G.K. DUDANI V• s.n. SHARMA [MAIX)N• J.] 275
A
c~s is precisely what has been done in the case of officers
whom the Division Bench has categorized as promotees appointed
to hold ex-cadre posts or promotees appointed to a temporary
post, whether an ex-cadre post or a cadre post. Even officers
holding permanent posts are often deputed to hold an ex-cadre
B
post. It was, therefore, i1111111terial whether these promotees
after being appointed Deputy Collectors were deputed to hold
•"'fan ex-cadre post or not. The position that a temporary post
can be held i1lllfi substantive capacity is now firmly
established by decisions of this Court in Baleshvar Dass &
o Ors. etc. v. State of U.P. & Ors., [1981] l S.C.R. 449 and ·
O.P. Sing] a and .Anro Vo &ion of India & Ors., [1984] 4 S. C. C.
, 450. According to these decisions, all persons holding sub-
c
-t stantive posts or temporary posts in substantive capacity- are
" /members of the service. In Singla 's case this Court further
pointed out (at page 483) "A person can be said to hold a
post, permanent or temporary, in a substantive capacity only
if his appointment to that post is not fortuitous or ad hoc."
D
The judgment in lllauhan 's case is cle;u on the point that the
appointment of none of the promotees in question was a
fortuitous or an ad hoc appointment. Further, copies of the
relevant Gazette notifications have been produced in these
-'"--!Appeals which clearly bear out not only this fact but also
show that the appointments of these promotees were regularly
E
made.
- The judgment of the Division Bench, in so far as it held
that "promotees appointed to ex-cadre posts" and "promotees
.,~appointed to temporary posts, cadre posts or ex-cadre posts"
were not regularly appointed during period A 'and, therefore,
F
~were not covered by direction (d) in lllauhan's case was
clearly wrong and is hereby reversed.
Civil Appeal No. 2359 of 1980 is filed by the pro1;iotees
and is directed against the judgment and order of the Division
Bench of the Gujarat High Court making the rule issued by that
G
High Court in Special Civil Application No. 1407 of 1978 filed
by the direct recruits absolute and dismissing Special Civil
\-...(Application No. 2199 of 1978 filed by the proootees. So far as
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
276 SUPREME COURT REPORTS [19861 2 s.c.R.
A
before us. The promotees had given up in the lligh Court t~c
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 pr01110tees that in addition to thirty vacancies in
B permanent posts and thirty-one in temporary additional posts,
there were nineteen further vacancies, making in all eightyr--~
vacancies. 'lhe submission of the promotees Jtliore us was that
this Court should direct the Goverilllllnt of Gujarat to prepare
a fresh seniority list and to give the promotees the benefit ,
of these further nineteen vacancies also. The State of Gujarat
C has categorically stated both in its affidavit in reply filed ,
in the Gujarat lligh Court as also in its affidavits filed in{-
this Court that there were in all only sixty-one vacancies.~ -4
'l'he contention of the promotees that there were nineteen
further vacancies does not seem to be correct as the recbrd
bears out the above statement made by the State of Gujarat,
D and after this length of time it is not necessary to remit
this matter to the lligh Court to ascertain this fact or to
· direct the State Governnent to prepare a fresh seniority list.
This litigation has gone on too long and there must be a rest
and quietus to all things. In our opinion, Special Civil)-'-
Application NO, 2199 of 1978 filed by the promotees was
E rightly dismissed by the Division Bench.
In the result, we partly allow Civil Appeal No. 2359 of •
1980 and while confirming the order of the Gujarat High Court
dismissing Special Civil Application No. 2199 of 1978, we sei:-\~
aside its order making absolute the rule issued in Special
F Civil Application No. 1407 of 1978 and dismiss the said'
Special Civil Application.
Civil Appeal No. 1816 of 1980 is filed by the State of
Gujarat against the order of the Division Bench of the Gujarat
lligh Court in Special Civil Application No. 1407 of 1978 filed
G by the direct recruits. This Appeal is accordingly allowed.
All interim orders passed in both these Appeals are).-'"
hereby vacated.
The real result of this prolonged and unfortunate
H litigation is that most of the promotees have retired from
G.K. DUDANI v. S.D. SHARMA [MADON, J.] 277
A
-:.t.Bervice and only a few are left to enjoy the fruits of their
victory in the concrets shape of being able hereafter to fill
a higher post in the Indian Administrative Service. Their
misfortune was due to the inability of the Government of
Gujarat to hold a competitive examination for nominating
direct recruits to the posts of Deputy Collector because of B
the query raised by the Gujarat Public Service Commission with
~°"f respect to the particular vernacular language of which the
candidate was expected to possess an adequate knowledge,
namely, whether it should be Gujarati or either Marathi or
Gujarati. This query would not have been raised had what was
then called the bilingual State of Bombay not been bifurcated
into two so-called unilingual States. Those who have retired c
·~have, however, had the honour of being sacrificial lambs on
J> ).the altar of the God of Linguistic States and can console
themselves with the knowledge that the local, and in a large
measure even the State, administration of their State has
after the division of the old State been carried on in the
mother tongue of the residents of the new State. It is time we D
lifted the Language Curtain which has descended. criss-cross
across India so that an Indian can understand another Indian.
St. Paul said in his First Epistle to the Corinthians (xiv.
---1 11), "Therefore if I know not the meaning of the voice, I
shall be unto him that speak.eth a barbarian, and he that
speaketh shall be a barbarian unto me." Let us then have a E
common tongue, whatever it be. We may take pride in our mother
tongue. We may take pride in the locality, town or region· from
where we come. Bu~ let us above all prides take pride in being
~t' Indians.
~ The parties will bear and pay their own costs of these F
Appeals.
C.A. 2359/80 partly allowed.
M.L.A. C.A. 1816/80 allowed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "inter se seniority"Sign in to search