K.S. VORA AND OTHERSversusSTATE OF GUJARAT AND OTHERS

                           K.S. VORA AND OTHERS
                                           v.                                         A
                     STATE OF GUJARAT AND OTHERS

                                OCTOBER 27, 1987

          [RANGANATH MISRA AND S. RANGANATHAN, JJ.]                                   B

           Seniority matter of government employees in the Gujarat Subordi-
      nate Secretariat Service-Gujarat Subordinate Secretariat Service-
      (Seniority of Assistants) Rules, 1977.

              The appellants had joined the government service as clerks-com-
  /    typists before the bifurcation, in May, 1960, of the State of Bombay into      C
.JO- " Maharashtra and Gujarat States. The Subordinate Secretariat Service
       then consisted of four grades-(i) Clerk-cum-typist, (ii) Junior
       Assistant, (iii) Senior Assistant, and (iv) Superintendent. On the forma-
       tion of Gujarat State, Government business in the secretariat was
       divided into nine separate Departments so far as the Subordinate               D
       service was concerned. Later, by a government Resolution, a common
       cadre of Superintendents for all the departments was created, and
       promotion to the post of the Superintendent was directed to be made ont
        of a common list of senior assistants, and by another resolution, the
       grades of the senior assistants and junior assistants were merged into
 ~ one post termed as Assistant, and a common seniority list of the                   E
        Assistants was prepared. In October, 1974, by another Resolution, a
        common cadre of the clerks-com-typists was created and promotion to
        the post of Assistant was provided therefrom. This October Resolution
        of the government was challenged before the High Court by two writ
        petitions. In the meantime, the Gujarat Subordinate Secretariat Service
        (Seniority of Assistants) Roles, 1977, were framed, which were to come        F
   ' into operation with retrospective effect from May, 1960. Rule 4 of the
~- Rules laid down the principle for determining seniority by providing
        that seniority among promotees-Assistants inter se shall be rIXed on
        the basis of their length of service in the joint cadre of clerk-cum-typist
        for all Departments of the Secretariat as a whole.
             The High Court passed an order, dismissing the two writ peti- G
       lions. The order of the High Court is appealed against by Special Leave
       in this Court, mainly on the ground that the retrospective operation of
  >°'I the Rules regarding seniority takes away the vested rights of the appel-
       lants of their prospects of promotions.
                                                                                      H
             Dismissing the appeal, the Court,
                                         611
    612                   SUPREME COURT REPORTS           [ 1988] I S.C.R.

A         HELD: A Common cadre was created for increasing efficiency ".,-.
    and in the interests of discipline. After the formation of the common
    cadre, general feeling of dissatisfaction owing to disparity of seniority
    was generated. The 1977 rules were introduced to ease that situation.
    The scheme of the Rule regarding seniority protected the rank then held
    by every member of the service notwithstanding the alteration of senior-
B   ity on the new basis. To that extent, the 1977 rules were not retro-
    spective. [615B-C]                                                       +.
          There was no challenge to the creation of the common cadre.
    Secondly, the rules of seniority are a matter for the employer to frame,
    and even though the prospects of promotion were likely to be pre- .
C   judiced by the introduction of some new set of rules to regulate senio- }.__
    rity, if the rules were made bona fide to meet the exigencies of the -
    service, no entertainable grievance could be made, and the appellants
    have no grievance to make. [61SE-F]


D        Mervyn v. Collector of Customs, Bombay and others, [1966] 3
    S.C.R. 600; Roshan Lal Tandan v. Union of India, [1968] 1S.C.R.185
    and State of Jammu & Kashmir v. Triloki Nath Khosa & others, [1974]
    I S.C.R. 771, relied upon.

        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 712 ~
E of 1980.

         From the Judgment and Order dated 20.12.1978 of the Gujarat
    High Court in Special C.A. No. 1073 of 1975.
         V.M. Tarkunde, Dr. D.Y. Chandrachud, S. Bharatari and P.H.
    Parekh for the Appellants.                                               ,
F
        P.S. Poti, M.N. Shroff, K.M.M. Khan and Mrs. H. Wahi for the ~
    Respondents.

          The Judgment of the Court was delivered by

G        RANGANATH MISRA, J. This appeal by special leave is direc-
    ted against the judgment of the Gujarat High Court in a dispute
    centered round seniority of government employees in the Gujarat Sub-     ~·
    ordinate Secretariat Service.

          The short facts necessary for disposal of the two contentions
H   raised in this appeal are the following:
                    K.S. VORA v. STATE OF GUJARAT {MISRA, J.]              613

'(             On May 1, 1960, the State of Bombay }Vas bifurcated into two
        States-Maharashtra and Gujarat. Prior to that date the six appellants A
        in this appeal had joined Government service as Clerks-cum-typists.
        The Subordinate Secretariat Service was then divided into four grades
        (i) Clerk-cum-typist (ii) Junior Assistant (iii) Senior Assistant and (iv)
        Superintendent. Promotions were available from the lower tier to the
        upper one. When Gujarat became a separate State Government busi- B
        ness in the Secretariat was divided into 9 departments separate in
'       every respect so far as the Subordinate service was concerned. On
        October 12, 1960, by a Government Resolution the cadre of Superin-
        tendents became a common one covering all the departments in the
        Secretariat. Until then seniority was being determined department-
        wise and promotions had also been regulated on the same basis in all
        the four grades. Under the new arrangement promotion to the post of c
    •
L
        Superintendent was handled by the General Administration Depart-
        ment out of a common list of Senior Assistants. On September 25,
         1964, under another resolution of Government the grades of Junior
        Assistants and Senior Assistants were merged into a single one known
        as Assistants w.e.f. October 1, 1964, and a common seniority list of D
        Government servants working as Assistants was prepared. A quota
        system was introduced for recruitment of Assistants. At one state, the
        ratio was 3: 1, promotees being the smaller proportion and later it was
        changed to 2: 1. On July 19, 1969, a seniority list of Assistants was
         prepared on quota basis and taking into account continuous officiation
'r       in the cadre of Assistants. The list was assailed before the High Court. E
        The court found by judgment dated March 9, 1972 that promo tees
        were in excess of the ratio and accordingly gave direction for a fresh
         list to be drawn up. On October 11, 1974, Government resolved to
         have a common cadre of Clerk-cum-typist and promotion to the post of
         Assistant was provided therefrom. In 1975, the October Resolution of
         Government was challenged before the High Court by filing two writ F
(        petitions. In the meantime, in 1977, a set of rules known as the Gujarat
         Subordinate Secretariat Service (Seniority of Assistaht•) Rules, 1977
         were framed under the proviso to Article 389 of the Constitution with
         retrospective effect from May 1, 1960. Rule 4 of the Rules laid down
         the principle for determining seniority by providing that seniority among
         the promotees Assistants inter se shall be fixed on the basis of their
                                                                                   G
         length of service in the joint cadre of Clerk-cum-typist for all depart-
...,     ments of the Secretariat as a whole. In December 1978 the two writ
         petitions were dismissed. The High Court held th~t the.object of the
        ~ules of 1977 was to equalise the chances of promotions to the selec-
         hon c_adre and since. the rules took care of the promotee officers by
         ensurmg non-revers10n, the rules were indeed not retrospective. H
     614                   SUPREME COURT REPORTS             [ 1988] 1 S.C.R.

     Several consequential directions were given. It is this judgment which
A    is now under appeal.
            The main contention advanced by Mr. Tarkunde in the appeal is
     that the rule regarding seniority is retrospective in operation and takes
     away the vested right of the appellants to prospects of promotions. In
     support of his submission he has relied upon three decisions of this
a    Court, namely, Mervyn v. Collector of Customs, Bombay & Ors.,
     [ 1966] 3 SCR 600; Roshan Lal Tandan v. Union of India, [1968] l SCR
      185 and State of Jammu & Kashmir v. Triloki Nath Khosa & Ors.,
     (1974] l SCR 771. Each one of these is a decision of the Constitution
     Bench. We do not find that on facts any of these cases has any support
     to offer for the point in dispute. Mervyn's case was that of Appraisers
c    of the Customs Department and challenge was to the validity of the
     rotational sysiem in fixing the seniority of Principal Appraisers. The
     Court struck down the method used by Government in fixing the
     seniority of Principal Appraisers on a finding that there was denial of
     equality of opportunity. The dispute in this case is different from what
     came in Mervyn case for determination. This will be apparent when we
D    presently deal with what exactly is the problem in the matter before us.
    Roshan Lal's case dealt with recruitment into one cadre from two
    sources. Even when recruitment from the two sources merged into one
    cadre, favourable. treatment was given to recruits from one source
    regarding further promotion. The Court found this to be violative of
    Articles 14 and 16 of the Constitution. This again is not relevant for
E   resolving the dispute in hand. Triloki Nath's case was dealing with the
    Engineering Service of Jammu & Kashmir. There was direct recruit-
    ment of decree-holders in civil engineering as also by transfer of
    degree or diploma-holders who had served as Supervisors for a period
    of not less than 5 years for recruitment to the cadre of Assistant
    Engineers. The relevant rule provided that recruitment to the post of
F   Executive Engineers and above was to be made by promotion only and
    Assistant Engineers who possessed a degree in engineering alone were
    eligible for such promotion. This rule, therefore, disqualified diploma-
    holders for being promoted as Executive Engineers and they
    challenged the constitutionality of the rule by contending that it was
    discriminatory. The Court found that even after there was one cadre,
G   for the promotional post therefrom, a higher qualification could be
    prescribed and those out of the common cadre who satisfied that re-
    quirement could be made eligible for promotion.
         As we have already pointed out in the instant case the St.ate
    decided at stages to switch over to the common cadre in respect of all
R   the four grades of the Subordinate Service. Before common grades
                K.S. VORA v. STATE OF GUJARAT [MISRA, J.J              615
                                                                ,
    had been formed promotion was granted departmentwise. When ulti-
    mately a common cadre came into existence-and all that was done by A
    1974-it was realised that if seniority as given in the respective depart-
    ments were taken as final for all purpose there would be prejudice.
    Undoubtedly the common cadre was for the purpose of increasing the
    efficiency by introducing a spirit of total competition by enlarging the
    field of choice for filling up the promotional posts and in the interest of B
    discipline too. Af.~r a common cadre was formed, the general feeling
    of dissatisfaction on account of disparity of seniority became apparent.
    The 1977 Rules were introduced in this background to ease the situa-
    tion. The scheme of this rule protected the rank then held by every
    member of the service notwithstanding alteration of seniority on the
    new basis. This, therefore, made it clear that accrued benefits were not
    to be interfered with. To that extent the 1977 Rules were not retroac- c
    tive. In spite of the protection of Rule regarding the post then held,
    the Rules brought about a change in the inter se seniority by adopting
     the date of initial recruit1IJent and the length of service became the
     basis for refixing seniority. Total length of service for such purpose is a
    well-known concept and could not said to be arbitrary. Undoubtedly D
     one of the consequences of the change in the basis was likely to effect
     prospects of promotion-a matter in future. Two aspects have to be
     borne in mind while considering the challenge of the appellants to this
     situation. It was a historical necessity and the peculiar situation that
     arose out of Government's decision to create a common cadre with
     four grad~s in the entire Secretariat. We would like to point out with E
     appropriate emphasis that there was no challenge to creation of the


-
     common cadre and certainly Government was competent to do so. The
      second aspect to be borne in mind is that rules of seniority are a matter
      for the employer to frame and even though prospects of promotion in
      future were likely to be prejudiced by introduction of a new set of rules
      to regulate seniority, if the rules were made bona fide and to meet F
      exigencies of the service, no entertainable grievance could be made. If
      these are the tests to apply, we do not think the appellants have indeed
      any grievance to make. In our view, therefore, the High Court rightly
      dismissed the contention and found that appellants were not entitled
      to relief.
          Mr. Tarkunde next urged about the quota. We find that the High       G
    Court has not dealt with the question. We do not propose to go into
    that aspect.
          We accordingly dismiss the appeal but leave parties to bear their
     own costs throughout.
     S.L.                                                 Appeal dismissed.    H