1. These are appeals by certificate. They raise one common question of law for consideration. That question is whether the second proviso to the rule relating to the appointments to the posts of Deputy Collectors in the Bombay Civil Services Classification and Recruitment Rules as well as Clause (3) of the Rules framed under Article 309 of the Constitution by the Governor of Gujarat relating to the appointments of Deputy Collectors are violative of Articles 14 and 16 of the Constitution. The High Court of Gujarat has come to the conclusion that those provisions are violative of Articles 14 and 16. Aggrieved by that decision the appellants have brought these appeals.
2. Till the year 1950, the posts of Deputy Collectors were filled by Bombay Government partly by direct recruitment and partly by promotion from the cadre of Mamlatdars. On February 6, 1950, the Government decided to fill up these posts only by promotion from the cadre of Mamlatdars. At the same time it decided to introduce the system of direct recruitment to the posts of Mamlatdars who in the first instance were to be on probation for two years and if found suitable would be confirmed It was further decided that 50 percent of the posts of Deputy Collectors will be reserved for promotion of direct recruits in the cadre of Mamlatdars and the other 50 percent for the promotee Mamlatdars In 1959, the Bombay Government introduced a change in the mode of recruitment to the posts of Deputy CollectOrs. In pursuance of the resolution of the Government of Bombay, the Bombay Civil Services Classification and Recruitment Rules were changed and the amended Rules read as follows :
(1) Appointment to the posts of Deputy Collector 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 possible, 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 post including the period spent on probation.
(2) Appointment by nomination shall be made on the result of a competitive examination in accordance with the rules hereto appended as Annexure I, from among candidates who ;
(a) are not less than 20 and more than 25 years of age ;
(b) possess a Bachelor's degree in Arts, Science, Agriculture, Commerce law, Engineering or a similar or higher degree of a recognised University ; and
(c) Possess adequate knowledge of Marathi or Gujarati.
(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) x x x x.
3. As a result of the second proviso in Rule 2 referred to above, out of 60 percent of the promotees from the posts of Mamlatdars to those of the Deputy Collectors, 25 per cent was reserved for directly recruited Mamlatdars. In 1966, after the formation of the State of Gujarat, the Government of Gujarat slightly altered the recruitment rules relating to the posts of Deputy CollectOrs. The relevant rules may now be quoted :
(1) Recruitment shall be made on temporary posts which are existing since two years and which are likely to be continued for one year and more excepting those posts which have been created for special work in Revenue Departments and all permanent posts in the cadre of Deputy CollectOrs.
(2) Appointment on this post shall be made in either of the following ways:
(a) By promotion of Mamlatdars of Gujarat Civil Service Class on proved merit and efficiency.
(b) By direct selection on the result of competitive examination in accordance with rules made by Government.
(3) The ratio of appointment in the available vacancies, by direct selection and promotion would be 50 : 50. But half the vacancies reserved for appointment by promotion shall be filled by directly recruited Mamlatdas, who have put in at at least seven year's service including the period spent on probation.
4. Rule 3 of these rules is similar to the second proviso to Rule I in the Bombay Civil Services Classification and Recruitment Rules framed in 1959. The question, as mentioned earlier, is whether the second proviso to Rule 1 of the Bombay Civil Services Classification and Recruitment Rules and Rule 3 of the Rules framed by the Gujarat Government are violative of Articles 14 and 16 of the Constitution.
5. The High Court accepting the contention of the writ petitioners came to the conclusion that the impugned Rules violated Articles 14 and 16. It opined that both the directly recruited Mamlatdars as well as the promotees Mamlatdars formed one class. That being so, it was not competent for the Government to discriminate between the directly recruited Mamlatdars and the promotee Mamlatdars in the matter of their further promotion. In arriving at its conclusion, the High Court relied on the decisions of this Court in Mervyn Coulindo and Ors. v. Collector of Customs Bombay and Ors. : (1967)ILLJ749SC and Rushanlal Tandon v. Union of India : (1968)ILLJ576SC .
6. The learned Counsel for the appellants did not contest the proposition that if both the directly recruited Mamlatdars as well as the promotee Mamlatdars formed one class then the Impugned Rules will be violative of Articles 14 and 16 on the basis of the decisions of this Court referred to earlier. But he challenged the conclusion of the High Court that they formed one class or one cadre. According to him, the directly recruited Mamlatdars and the promotee Mamlatdars formed two difference classes The High Court rejected that contention and in our opinion rightly. Both the directly recruited Mamlatdars as well as the promotee Mamlatdars are designated as Mamlatdars. They have the same pay scale. They discharge same functions. The posts held by them are interchangeable. There is nothing to how that the two groups are kept apart. The only circumstance urged in support of the contention that they form two different classes is that before promotion to the post of Deputy Collector, the directly recruited Mamlatdars have to put in a certain minimum period of service. This condition, in our opinion, does not indicate that the two groups were kept apart. The High Court seeing to think that that condition is not a valid condition. We express no opinion on that question. Even if it is a valid condition, the same does not show that the directly recruited Mamlatdars formed a different class There is no material to show that the Government had prepared two separate seniority lists, one for the directly recruited Mamlatdars and the other for the promotee Mamlatdars.
7. The Counsel for the appellants sought to place some reliance on the decision of this Court in State of Mysore v. P, Narasing Rao : (1968)IILLJ120SC . That decision is clearly distinguishable. In that case, according to the Rules framed by the Government, the non-matriculate (racers formed a separate cadre from those who had passed the matriculation examination. The two cadres had different pay scales. Hence there was no discrimination between the officers borne on the same cadre.
8. For the reasons mentioned above, we find no ground to interfere with the judgment of the High Court. These appeals are accordingly dismissed. But in the circumstances of the case, there will be no order as to costs in these appeals.