Skip to content


State of Gujarat and anr. Vs. K.A. Patel and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtGujarat High Court
Decided On
Judge
Reported in(1973)14GLR730
AppellantState of Gujarat and anr.
RespondentK.A. Patel and ors.
Cases ReferredUnion of India v. Gajinder Singh (supra
Excerpt:
- - justice divan took the view that this contention was well-founded and on this view, he did not consider it necessary to examine the validity of the two main contentions urged in the petition and held that the collector was not entitled to revert the petitioners on the ground that they have not passed the revenue qualifying examination. but before we do so, it would be convenient at this stage to examine briefly a contention of a preliminary nature advanced on behalf of the petitioners, because if this contention is well-founded, it would take the petitioners a long way on the road to success. this contention is, in our opinion, not well-founded. it is now well-settled-indeed, it is too late in the day to contest it-that it is not obligatory under the proviso to article 309 to make.....p.n. bhagwati, c.j.1. this is a group of letters patent appeals directed against the judgment of mr. justice divan in several writ petitions relating to employees of the pre-reorganized state of bombay. the facts giving rise to the appeals are identical in material particulars barring only difference in dates and it would, therefore, be sufficient if we take letters patent appeal no. 19 of 1971 as representative of the group and briefly recapitulate the facts giving rise to that appeal.2. letters patent appeal no. 19 of 1971 arises out of special civil application no. 884 of 1969. the petitioners in this special civil application joined service as clerks in the pre-reorganized state of bombay years ago, long before the reorganization of the states took place on 1st november 1956. on the.....
Judgment:

P.N. Bhagwati, C.J.

1. This is a group of Letters Patent Appeals directed against the judgment of Mr. Justice Divan in several writ petitions relating to employees of the pre-reorganized State of Bombay. The facts giving rise to the appeals are identical in material particulars barring only difference in dates and it would, therefore, be sufficient if we take Letters Patent Appeal No. 19 of 1971 as representative of the group and briefly recapitulate the facts giving rise to that appeal.

2. Letters Patent Appeal No. 19 of 1971 arises out of Special Civil Application No. 884 of 1969. The petitioners in this Special Civil Application joined service as clerks in the pre-reorganized State of Bombay years ago, long before the reorganization of the States took place on 1st November 1956. On the reorganization of the State of Bombay under the States Reorganization Act, 1956, the petitioners were allotted to the new State of Bombay and when the new State of Bombay was bifurcated into the States of Maharashtra and Gujarat, the petitioners came to be allotted to the State of Gujarat under the Bombay Reorganization Act, 1960. Now there was a Revenue Qualifying Examination which was being held by the State of Bombay both prior to its reorganization and subsequent as also by the State of Gujarat but the petitioners did not pass this examination.

The petitioners were however promoted as Officiating Aval Karkuns on different dates between 1959 and 1965 and since then they have been working as Officiating Aval Karkuns under the Collectorate of Ahmedabad. In July/ August 1968 the Collector of Ahmedabad passed orders reverting petitioners Nos. 9, 13, 14 and 15 from the post of Aval Karkun to the post of Clerk on the sole ground that they had not passed the Revenue Qualifying Examination, but fortunately for those petitioners, before the orders of reversion could be given effect to, some vacancies arose in the cadre of Aval Karkuns and they were, therefore, continued as Aval Karkuns in those vacancies. In the third week of June 1969, however, it came to be known that fifteen posts in the cadre of Aval Karkuns were to be abolished and consequently Aval Karkuns would have to be reverted and since the petitioners had not passed the Revenue Qualifying Examination, the Collector of Ahmedabad was contemplating reversion of the, petitioners as clerks on the basis of a Circular dated 28th December 1962 issued by the Government of Gujarat. The petitioners, therefore, immediately hastened to file Special Civil Application No. 884 of 1969 challenging the validity of the Circular dated 28th December 1962 and seeking to restrain the Collector of Ahmedabad from reverting the petitioners merely on the ground that they have not passed the Revenue Qualifying Examination.

3. The main ground of attack formulated in the petition was twofold. It was contended in the first place that the threatened action of the Collector to revert the petitioners as clerks on the ground that they have not passed the Revenue Qualifying Examination was illegal and void for two reasons: firstly, because no such condition could be insisted upon by the Collector without a statutory rule or that effect under the proviso to Article 309 of the Constitution, and secondly, because there was no requirement in the conditions of service applicable to the petitioners immediately prior to the reorganization of States on 1st November 1956 or the bifurcation of the State of Bombay on 1st May 1960, that a clerk should pass the Revenue Qualifying Examination in order to be eligible for promotion as an Aval Karkun and, therefore, the action threatened by the Collector would amount to variation of the conditions of service of the petitioners to their disadvantage without the previous approval of the Central Government and that would be violative not only to the proviso to Section 115 Sub-section (7) of the States Reorganization Act, 1956, but also of the proviso to Section 81 Sub-section (6) of the Bombay Reorganization Act, 1960. The second contention urged in the petition was that the circular dated 28th December 1962 was merely an executive instruction and not a rule made under the proviso to Article 309 of the Constitution and the provision in that Circular fixing seniority in the cadre of Aval Karkuns according to the date of passing the Revenue Qualifying Examination had, therefore, no binding effect and in any event, it was in contravention of the proviso to Section 115 Sub-section (7) of the States Reorganization Act, 1956, and the proviso to Section 81 Sub-section (6) of the Bombay Reorganization Act 1960 since it sought to vary the condition of service of the petitioners in regard to seniority to their disadvantage without obtaining the previous approval of the Central Government. This contention challenging the validity of the circular dated 28th December 1962 was taken in the petition, because it was apprehended, in our opinion, rightly, that if this circular were valid and binding, the petitioners not having passed the Revenue Qualifying Examination would be juniors to those who have passed and would consequently be liable to be reverted earlier than the others on abolition of posts in the cadre of Aval Karkuns. Though the petition contained only these two contentions and no other contention was taken in the petition, a new contention Was advanced on behalf of the petitioners at the hearing of the petition before Mr. Justice Divan and that contention was that even if passing the Revenue Qualifying Examination was a condition of promotion to the post of Aval Karkun or a condition of confirmation in the cadre of Aval Karkuns, such condition was superseded by statutory rules of recruitment made by the State Government on 22nd July 1966 in exercise of the power conferred under the proviso to Article 309 and after the making of these rules of 22nd July 1966, there was no condition which required that a clerk should pass the Revenue Qualifying Examination in order to be eligible for promotion or confirmation as Aval Karkun and, therefore, the threatened action of the Collector to revert the petitioners on the ground that they have not passed the Revenue Qualifying Examination must be held to be based on an extraneous consideration and hence without authority. This new contention was permitted to be advanced on behalf of the petitioners by Mr. Justice Divan though it was not taken in the petition, since it involved merely a question of law and did not require any investigation of facts. Mr. Justice Divan took the view that this contention was well-founded and on this view, he did not consider it necessary to examine the validity of the two main contentions urged in the petition and held that the Collector was not entitled to revert the petitioners on the ground that they have not passed the Revenue Qualifying Examination. This view taken by Mr. Justice Divan is assailed in the present Letters Patent Appeal.

4. Though the petition was disposed of before Mr. Justice Divan on a short point, the arguments before us ranged over a wide field and we must confess, they caused considerable anxiety to us in reaching a proper decision. To appreciate the arguments which have been advanced before us, it is necessary to trace briefly the history of the provisions relating to promotion, confirmation and seniority in the cadre of Aval Karkuns. But before we do so, it would be convenient at this stage to examine briefly a contention of a preliminary nature advanced on behalf of the petitioners, because if this contention is well-founded, it would take the petitioners a long way on the road to success. The petitioners contended that the conditions of service of a Government servant can be found only in the order of appointment or in statutory rules regulating the conditions of service and they cannot be laid down by executive instructions or rules. Here in the present case, said the petitioners, there was nothing in the respective orders of appointment nor in any statutory rules which provided that if an officiating Aval Karkun does not pass the Revenue Qualifying Examination, he shall be liable to be reverted and the Government was, therefore, not entitled to revert the petitioners on the ground that they have not passed the Revenue Qualifying Examination. This contention is, in our opinion, not well-founded. It runs counter to the settled legal position as appearing from several decisions of the Supreme Court. It is now well-settled-indeed, it is too late in the day to contest it-that it is not obligatory under the proviso to Article 309 to make rules of recruitment etc., before a service can be constituted or a post created or filled. This is not to say that it is not desirable that ordinarily rules should be made on all matters which are susceptible of being embodied in the rules. But even if the rules are not made, the working of the public departments has to go on and the State can, in exercise of its executive power, make recruitment to the services and regulate the conditions of service. The executive power of the State extends to all matters with respect to which State Legislature has power to make laws. Vide Article 162. It follows from this that the State Government has the executive power in respect of 'State Public services' being Entry 41 in List II of the Seventh Schedule to the Constitution and there is nothing in the terms of Article 309 which abridges the power of the executive to act under Article 162 without a law. Of course, if there is a statutory rule on the subject, the executive must abide by that rule and it cannot in exercise of the executive power under Article 162 ignore or act contrary to that rule. The Government cannot amend or supersede the statutory rules by administrative instructions, but if the rules are silent on any particular point, the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules. Vide T. Cajee v. Jormonik Sien A.I.R. 1961 S.C. 267: B. N. Nagrajan v. State of Mysore : [1965]57ITR643(SC) and Santram v. State of Rajasthan : (1968)IILLJ830SC . The petitioners, however, relied on an unreported decision of the Supreme Court in the Chief Secretary to the Government of Mysore and Anr. v. H. G. Chandraiah delivered on 14th September 1966 in Civil Appeals Nos. 1462 to 1550 of 1966 in support of their contention that the condition of service of a Government servant can be laid down only in the order of appointment or by statutory rules and not by executive instructions or rules. We do not think this decision supports the contention urged on behalf of the petitioners. The Supreme Court in this case, after setting out the respective arguments of the parties, prefaced its discussion by observing that 'we do not propose to express any opinion on the question whether, apart from statutes and rules made by the Governor under Article 309 of the Constitution, the Government, in exercise of its executive fiat, can impose other conditions of service. That raises a very important question which does not call for decision in this case, as the Learned Counsel for the respondents proceeded on the assumption that the Government could impose such conditions of service de hors statutes and rules.' These observations clearly show that the Supreme Court did not express any opinion on the question whether the conditions of service of a Government servant can be laid down by executive instructions or rules. That was a question which was found unnecessary to be decided, because the arguments before the Supreme Court proceeded on the assumption that the Government could impose conditions of services by executive instructions or rules de hors statutory rules. It is true that a little later in the course of the judgment, the Supreme Court observed : 'The promotees can only be governed by that order and other statutory rules regulating the conditions of service, if any, that were obtaining at that time' and this might suggest by implication that the promotees would not be governed by executive instruction or rules laying down conditions of service, but it must be remembered that these observations were made in the context of a situation where there were admittedly no executive instructions or rules, because whatever executive instructions or rules might have been in existence were superseded by the Mysore Secretarial Services Recruitment Rules, 1957. It would not, therefore, be right to read these observations as laying down by implication that conditions of service cannot be provided by executive instructions or rules. The Supreme Court could not have intended to lay down any such proposition when it started the judgment by saying that it did not propose to express any opinion on the question whether, apart from statute or statutory rules, the Government could, in exercise of its executive fiat, impose conditions of service. We do not think these observations can be read in the manner suggested on behalf of the petitioners. To do so would be to contradict the well-settled legal position which has always prevailed with the Supreme Court in a series of decisions to which we have just referred. That would not be right.

5. We may now briefly trace the history of the provisions relating to promotion, confirmation and seniority in the cadre of Aval Karkuns and while doing so we will refer to the arguments advanced on behalf of the parties and discuss them. The history of the relevant provisions begins with the year 1925 but it is not necessary to state the position it obtained under the Subordinate Revenue Service Rules of 1st October 1925. These rules were cancelled by Government Resolution dated 16th April 1940 and the rules relating to first appointment to post in the Revenue Service were moulded in the Bombay Civil Services Classified on and Recruitment Rules and the instructions there contained were revised and appended as part of the Government Resolution dated 6th April 1940 Clause 2 of the Government Resolution dated 6th April 1940 divided the Subordinate Revenue Service into two divisions, namely, Upper Division and Lower Division. The post of clerk was regarded as belonging to the Lower Division while the post of Aval Karkun was regarded as belonging to the Upper Division. The appointment to the post of Aval Karkun was to be made by promotion from the post of clerk. The material clauses of the Government Resolution dated 6th April 1940 were Claused and 10 which inter alia laid down the following rules regulating the conditions of service:

(a) No clerk shall be confirmed in the cadre of Aval Karkun unless he has passed Revenue Qualifying Examination, passed

(b) Only those clerks can appear at the Revenue Qualifying Examination who are specially selected by the Collector.

(c) A clerk must pass Revenue Qualifying Examination before completing seventeen years of pensionable service and within forty years of age and he shall not be allowed more than three chances to pass Revenue Qualifying Examination except with the consent of the Government.

(d) The date of passing of Revenue Qualifying Examination shall not affect his seniority in the cadre of clerks but failure to pass within prescribed limit will involve permanent relegation to the Lower Division.

There was nothing in the Government Resolution dated 6th April 1940 which made it a condition that a clerk should pass the Revenue Qualifying Examination in order to be eligible for promotion as an Aval Karkun. Even if a clerk had not passed the Revenue Qualifying Examination, he was eligible to be considered for promotion as Aval Karkun, so long as he was not disentitled to appear at the Revenue Qualifying Examination. He could appear at the Revenue Qualifying Examination and pass it even after promotion. The only disability from which he suffered was that he was not entitled to be confirmed as Aval Karkun unless he passed the Revenue Qualifying Examination and if he failed to pass it within the prescribed limit, he would be liable to be reverted as a Clerk. Of course, if by the time he came to be considered for promotion, he had failed to pass the Revenue Qualifying Examination within the prescribed limit so that he was thereafter disentitled to appear at the Revenue Qualifying Examination, he would not be entitled to be considered for promotion because, as provided by Rule (d), failure to pass within prescribed limit involved permanent relegation to the Lower Division.

6. Then came the Government Resolution dated 13th January 1949 which amended the Government Resolution dated 6th April 1940 but it is not necessary to make any reference to it, because there was a further amendment made by Government Resolution dated 25th October 1951 which is material for our purpose. The Government Resolution dated 25th October 1951 made two important amendments in the Government Resolution dated 6th April 1940. It laid down inter alia the following two rules:

(a) Permission to appear at the Revenue Qualifying Examination shall be granted by the Collector according to seniority and' not by selection; and

(b) Seniority for the purpose of promotion from the cadre of clerks to that of Aval Karkuns shall be determined on the basis of the date of passing Revenue Qualifying Examination.

It will be seen that, though ostensibly a principle of seniority was laid down by Rule (b), that was only for the limited purpose of promotion from the cadre of clerks to that of Aval Karkuns and, as we shall point out shortly, it was really nothing but a mode of promotion.

7. The position which, therefore, obtained immediately prior to 1st November 1956 when the reorganisation of States took place was that inter alia the following rules governed the conditions of service of clerks and Aval Karkuns:

(1) No clerk shall be confirmed as Aval Karkun unless he has passed Revenue Qualifying Examination;

(2) Seniority for the purpose of promotion from the cadre of clerks to that of Aval Karkuns shall be determined on the basis of the date of passing Revenue Qualifying Examination;

(3) Revenue Qualifying Examination must be passed by a clerk before he completes seventeen years of pensionable service and reaches forty years of age and he shall have no more than three chances; and

(4) Failure of a clerk to pass Revenue Qualifying Examination within prescribed limits will involve permanent relegation to the Lower Division, that is, to the post of a clerk.

The question is whether these rules continued to govern the conditions of service after the reorganisation of States which took place with effect from 1st November 1956.

8. So far as the first rule is concerned, it is clear that it constitutes a condition of service of the cadre of Aval Karkuns. It is not a condition of promotion to the cadre of Aval Karkuns: it is merely a condition of confirmation in that cadre. There can be no doubt that if it were a condition of promotion, it would be a condition of service of the cadre of clerks, because any rule affecting promotion from a lower cadre to a higher cadre is a condition of service of the lower cadre. Vide Mohammad Bhakar v. Y. Krishna Reddy (1970) Service Law Reporter 768. But the first rule does not impose any condition which must be fulfilled by a clerk in order to be entitled to be considered for promotion as an Aval Karkun. It merely provides that no clerk shall be confirmed as Aval Karkun unless he has passed Revenue Qualifying Examination. Even if a clerk has not passed Revenue Qualifying Examination, he can be promoted as Aval Karkun, but he would not be entitled to be confirmed in the cadre of Aval Karkuns unless he passes Revenue Qualifying Examination. It is, therefore, clearly a condition of confirmation and not a condition of promotion. There is a clear and well recognised distinction between a condition of promotion and a condition of confirmation. One debars entry into the higher cadre unless the condition is fulfilled while the other does not debar entry into higher cadre -but merely provides that if a Government servant wants to be confirmed in the higher cadre, he must fulfil the condition. Take for example, a case where a person is recruited as a clerk. There is no condition which provides that a person shall not be eligible for being considered for appointment as a clerk unless he has passed sub-service departmental examination. The passing of sub-service departmental examination is not a qualification which must be possessed by a candidate before he can be appointed as a clerk. But a candidate who has been appointed as a clerk is required to pass the sub-service departmental examination within four years of the date of his enlistment as candidate in order to be eligible for confirmation. The consequence of his not passing the sub-service departmental examination within the prescribed limit would, of course, be that he would not be confirmed and he may be liable to be discharged, but that is very much different from saying that passing the sub-service departmental examination is a condition of appointment. Here, in the present case, the first rule is a condition of confirmation in the cadre of Aval Karkuns and is not a condition of promotion from the cadre of clerks to the cadre of Aval Karkuns. Now it can hardly be disputed that a condition of confirmation in a cadre forms part of the conditions of service of that cadre and not of the lower cadre from which promotions are made and, therefore, the first rule must be regarded as a condition of service of the cadre of Aval Karkuns. Now the petitioners in all the petitions were clerks on 1st November 1956 being the appointed day on which reorganization of States took place and they were promoted as officiating Aval Karkuns after 1st November 1956. The first rule did not, therefore, govern their conditions of service immediately prior to the reorganization of States. If the first rule had been a condition of service of the cadre of clerks, the petitioners would have carried that condition of service with them in the new set up after reorganization of States, but since it was a condition of service of the cadre of Aval Karkuns and the petitioners became officiating Aval Karkuns after 1st November 1956, this rule would regulate their conditions of service as Aval Karkuns only if it can be shown that it was adopted and continued by the reorganized State of Bombay on or after 1st November 1956. We shall discuss this aspect of the question a little later but at the present stage we may point out that the first rule was adopted and continued by the reorganized State of Bombay and that is evident from the Government Memorandum dated 23rd June 1959.

9. Logically, this should take us to a consideration of the second rule, but we shall examine that rule a little later because it involves consideration of some other aspect as well. The third rule embodied a condition of service which was clearly and indubitably a condition of service of the cadre of clerks and the petitioners and other Government servants who were clerks immediately prior to the reorganization of States must be held to have carried it with them in the new set-up as parts of their conditions of service. It may be a matter of some debate whether the condition embodied in the fourth rule was a condition of service of the cadre of clerks or a condition of service of the cadre of Aval Karkuns. But, for the purpose of the present argument, we will assume with the petitioners that it was a condition of service of the cadre of clerks in which event it must be held to continue to be applicable to the petitioners and other allocated Government servants who were clerks, even after the reorganization of States. If it is held to be a condition of service of the cadre of Aval Karkuns, it would not be applicable to the petitioners who were promoted as officiating Aval Karkuns after the reorganization of States, unless it were adopted and continued by the reorganized State of Bombay. That, the reorganized State of Bombay seems to have done as appears from the Government Memorandum dated 23rd June 1959.

10. Now before we proceed to examine the position in regard to the second rule, it would be convenient at this stage to refer to the Allocated Government Servants' (Absorption, Seniority, Pay and Allowances) Rules, 1957, (hereinafter referred to as 'the Rules of 1957'). The formation of the new State of Bombay as a result of reorganization of States created a difficult problem so far as public services were concerned, since portions of territories of different States were amalgamated to form the new State of Bombay. Government servants from those States came to be allocated to the new State of Bombay and it became necessary to integrate them into one common service. The Governor of Bombay, therefore, made the Rules of 1957 in exercise of the powers conferred by the proviso to Article 309 of the Constitution and with due regard to the proviso to Sub-section (7) of Section 115 of the States Reorganization Act, 1956. The only provisions in the Rules of 1957 which concern us are the provisions relating to seniority amongst allocated Government servants. Rule (7) Clause (i) provided that seniority of an allocated Government servant in the post or cadre of absorption shall, as on 1st November 1956, be determined by the length of continuous service, in the corresponding post or posts on the same time-scale in the former State. Clause (ii) of Rule (7) provided for a fictional date of continuous service in order to ensure that amongst allocated Government servants coming from a particular former State, inter se seniority existing immediately prior to 1st November 1956 shall be respected. Where the length of continuous service in the corresponding post in the former State may be equal, Rule (8) provided that, in such cases, the allocated Government servant senior in age shall be deemed to be senior. Rule (9) conferred power on the State Government by general or special orders to disturb inter se seniority of allocated Government servants coming from a former State as it existed immediately prior to 1st November 1956. The Rules of 1957 being statutory rules would supersede any other principle of seniority which might be operative immediately prior to 1st November 1956 so far as allocated Government servants in the cadre of clerks were concerned: their seniority as on 1st November 1956 would be governed not by the old principle of seniority but by the principle laid down in the Rules of 1957.

11. Now the argument of the petitioners was that the condition of service embodied in the second rule was superseded by the Rules of 1957 and it, therefore, ceased to apply to the petitioners. But we do not think this argument is well-founded. A little scrutiny will reveal that the second rule cannot be regarded as superseded by the Rules of 1957. The second rule determines seniority amongst clerks only for the purpose of promotion as Aval Karkuns. It does not lay down a principle of fixing seniority in the cadre of clerks. It merely prescribes a mode of promotion by saying that, in making promotion, one who has passed Revenue Qualifying Examination earlier will be preferred to one who has passed later and one who has passed will be preferred to one who has not. There is, therefore, no inconsistency between the second rules and the Rules of 1957: the Rules of 1957 determine actual seniority amongst allocated Government servants who were clerks on 1st November 1956 while the second rule merely says what shall be the mode of promotion-what shall be the basis on which promotion shall be made to the cadre of Aval Karkuns, irrespective of what may be the seniority in the cadre of clerks. The second rule is, therefore, not all inconsistent with the Rules of 1957 and cannot be regarded to, have been superseded by the Rules of 1957. It is a condition of service of the cadre of clerks, because it lays down the mode of promotion from the cadre of clerks to the cadre of Aval Karkuns and the petitioners and other Government servants who were clerks on 1st November 1956 must be held to have carried it with them In the new set-up as a condition of their service and it must, therefore, continue to apply to them even after 1st November 1956.

12. The net result of this discussion is that none of the aforesaid four rules was superseded by the Rules of 1957 and even after the reorganization of States on 1st November 1956, all these four rules continued to apply to the petitioners and other allocated Government servants who were clerks immediately prior to the reorganization of States. The question is, whether any alteration or modification was made in these conditions of service by the Government after 1st November 1956. That calls for a consideration of the Government Memorandum dated 23rd June 1959. It was a Memorandum addressed by the Government to the Commissioner, Ahmedabad Division. The Government by this Memorandum laid down the following two rules governing conditions of service:

(a) confirmation in the cadre of Aval Karkuns is to be made according to the date of passing Revenue Qualifying Examination irrespective of seniority in the cadre of Clerks; and

(b) seniority in the cadre of Aval Karkuns shall be according to the date of passing Revenue Qualifying Examination.

Rule (a) clearly postulates that confirmation in the cadre of Aval Karkuns is dependent on passing of Revenue Qualifying Examination. It bears witness to the continued existence of the rule that no clerk shall be confirmed as Aval Kaikun unless he has passed Revenue Qualifying Examination. Or, in other words, it shows beyond doubt that the Government adopted and continued that rule even after the Reorganization of States on 1st November 1956. It is, therefore, indisputable that no confirmation shall be made in the cadre of Aval Karkuns without passing of Revenue Qualifying Examination continued to regulate the conditions of service of Aval Karkuns, even if they were promoted after 1st November 1956. Rule (b) laid down for the first time the principle of seniority in the cadre of Aval Karkuns. There can be no doubt having regard to the terms of the Government Memorandum dated 23rd June 1959 that it was applicable only to the districts which formed part of the erstwhile State of Bombay (hereinafter referred to as the Bombay districts) and did not apply to the districts of the erstwhile States of Saurashtra and Kutch (hereinafter referred to as the Saurashtra and Kutch districts). The principle of seniority laid down in Rule (b) was, therefore, applicable to determine seniority in the cadre of Aval Karkuns in the Bombay districts. It may be pointed out at this stage that it was common ground between the parties that the cadres of Clerks and Aval Karkuns were district wise cadres and, therefore, there was no difficulty in laying down a principle of seniority for the cadre of Aval Karkuns in the Bombay districts leaving out the Saurashtra and Kutch districts. The principle of seniority laid down in Rule (b), namely, that seniority in the cadre of Aval Karkuns shall be according to the date of passing Revenue Qualifying Examination was, therefore, applicable to the cadre of Aval Karkuns in the Bombay districts and it applied to all persons who were promoted as Aval Karkuns in Bombay districts after 1st November 1956. Now none of the petitioners in any of the petitions was promoted as Aval Karkun prior to 1st November 1956. If there had been any petitioners who had been promoted prior to 1st November 1956, their seniority in the cadre of Aval Karkuns would have been governed by the Rules of 1957 and the principle of seniority in Rule (b) would not have applied to them. But not a single petitioner was promoted as Aval Karkun prior to 1st November 1956 and, therefore, Rules of 1957 did not prevent the applicability of the principle of seniority in Rule (b). The principle of seniority in Rule (b) plainly and indisputably governed seniority amongst the petitioners and other Aval Karkuns who were promoted after 1st November 1956 but before 1st May 1960. The sequiter of this principle of seniority was that those officiating Aval Karkuns who have not passed Revenue Qualifying Examination would always be junior to those who have passed and amongst those who have passed, one who has passed earlier would be senior to one who has passed later. This principle of seniority constituted a condition of service of the petitioners and other Aval Karkuns who were promoted after 1st November 1956 but before 1st May 1960, It may be pointed out that the validity of this principle of seniority set out in Rule (b) was not challenged either in the petitions or in the course of the arguments before us and we must, therefore, proceed on the basis that it laid down a valid principle of seniority in the cadre of Aval Karkuns.

13. We must then refer to certain communications which took place between the Commissioner, Ahmedabad Division, and the Government in regard to confirmation and seniority in the cadre of Aval Karkuns. The Commissioner, Ahmedabad Division, by his letter dated 10th July 1959 sought confirmation of the Government to what he conceived to be the correct position, namely, that confirmation and seniority in the cadre of Aval Karkuns would be governed inter alia on the basis of date of passing Revenue Qualifying Examination in the case of those who have passed after February 1952 and this position was confirmed by the Government by its Memorandum dated 20th August 1959. It is, therefore, clear that by this correspondence the Government confirmed the position it had taken in the Government Memorandum dated 23rd June 1959 and reiterated Rules (a) and (b) laid down in that Government Memorandum.

14. The question then arises whether Rules (1) to (4) which governed the conditions of service immediately prior to 1st November 1956 and, which as already discussed above, continued to apply even after 1st November 1956 as also Rules (a) and (b) of Government Memorandum dated 23rd June 1959 as confirmed by the Commissioner's letter dated 10th July 1959 and the Government Memorandum dated 20th August 1959 continued to apply after 1st May 1960 when the reorganized State of Bombay was bifurcated and two new States, namely, State of Maharashtra and State of Gujarat came into being by reason of the Bombay Reorganization Act 1960 Now one of the first acts which the Gujarat Government performed on coming into being was to pass General Circular No. 1 to the following effect:

Government has decided that all rules and regulations, procedure, circulars, instructions, all schemes and sanction, prevaning in the former Bombay State, will continue to operate la the new State of Gujarat until changed or modified by the Government.

These Rules, therefore, continued to govern conditions of service in the State of Gujarat even after 1st May 1960. Rule (1) which prevailed in the re-organised State of Bombay on account of the Government Memorandum dated 23rd June 1959, the Commissioner's letter dated 10th July 1959 and the Government Memorandum dated 20th August 1950 continued in the State of Gujarat after 1st May 1960 by reason of General Circular No 1. So also did Rules (a) and (b) of the Government Memorandum dated 23rd June 1959 as confirmed by the Commissioner's letter dated 10th June 1959 and the Government Memorandum dated 20th August 1959. Rules (2), (3) and (4) also continued to govern the conditions of service after 1st May 1960 because the petitioners and other officiating Aval Karkuns carried it with them as part of their conditions of service in the new set up on reorganization of the State of Bombay and they were also continued, in any event, by General Circular No 1 There can therefore, be no doubt that Rules (1) to (4) which prevailed immediately prior to 1st November 1956 and which continued to operate after 1st November 1956 as also Rules (a) and (b) of the Government Memorandum dated 23rd June 1959 as confirmed by the Commissioner's letter dated 10th July 1959 and the Government Memorandum dated 20th August 1959 continued to govern the conditions of service in the State of Gujarat after 1st May 1960 when the reorganized State of Bombay was bifurcated.

15. That takes us to the events which happened after the coming into being of the State of Gujarat on 1st May 1960. The Government of Gujarat passed a Resolution dated- 28th December 1962 and that is the Resolution which is impugned in the petitions. It is not necessary to refer to the preamble of this Resolution nor to the provisions contained in it. It is sufficient to state that this Resolution laid down certain rules which were intended to be applicable not only to the Bombay districts but also to the Saurashtra and Kutch Districts. There were in the main three rules laid down by this Resolution and they were as follows:

(A) No clerk shall be confirmed as Aval Karkun unless he has passed Revenue Qualifying Examination;

(B) Seniority in the cadre of Aval Karkuns shall be determined on the basis of the date of passing Revenue Qualifying Examination; and

(C) Seniority for the purpose of promotion from the cadre of Clerks to that of Aval Karkuns shall be determined on the basis of date of passing Revenue Qualifying Examination from and after the date of the Resolution.

We may consider the impact of these rules on Rules (1) to (4) and Rules (a) and (b) which, as we have pointed out above, continued to operate even after 1st May 1960 in the State of Gujarat.

16. Rule (A) lays down the same condition of service as Rule (1). It does no more than reiterate and reaffirm the existing rule that no clerk shall be confirmed as Aval Karkun unless he has passed Revenue Qualifying Examination. It may be noted that this rule was continuously in operation without break from 6th April 1940 when it was enunciated for the first time by the Government of Bombay.

17. The principle of seniority laid down in Rule (B) is the same as that enunciated in Rule (b). We have already pointed out that the principle of seniority in Rule (b) continued to operate in the Bombay districts of the State of Gujarat even after 1st May 1960 and Rule (B) merely affirms that principle of seniority which even otherwise continued to apply in the cadre of Aval Karkuns. There is, therefore, no alteration in the conditions of service as to seniority in the cadre of Aval Karkuns after 1st May 1960 and no question of violation of the proviso to Section 81 Sub-section (6) of the Bombay Reorganization Act, 1960, by reason of Rule (B), can possibly arise.

18. So far as Rule (C) is concerned, that also does not lay down any new condition of service. It merely affirms the condition of service in Rule (2) which, as we have already pointed out above, existed immediately prior to 1st November 1956 and continued to operate thereafter and which, after 1st May 1960, also continued to operate in the Bombay districts of the State of Gujarat. Rule (C) does not, therefore, make any alteration in the conditions of service of the petitioners and other officiating Aval Karkuns and clerks v so as to attract the applicability of the proviso to Section 81 Sub-section (6) of the Bombay Reorganisation Act, 1960.

19. It will, therefore, be seen that so far as the Bombay districts in the State of Gujarat are concerned, the Government Resolution dated 28th December 1962 re-affirmed and reiterated and thereby adopted and continued Rules (1) and (2) and Rule (b). The other rules, namely, Rules (3) and (4) and Rule (a) also continued to subsist because there was nothing in the Government Resolution dated 28th December 1962 which in any way abrogated or modified them. The question is, whether any subsequent executive or legislative action taken by the Government made any alteration in these Rules.

20. Before we consider this question we must refer to Government Notification dated 14th June 1966 which was issued by the Government with a view to prescribing rules and syllabii inter alia for the Revenue Qualifying Examination. These rules and syllabii were brought into force by the Government with effect from the Revenue Qualifying Examination to be held in April, 1967. Appendix II to the Notification laid down the rules for the Revenue Qualifying Examination. Rule 2 of these Rules is material and it laid down the following three rules:

(i) No clerk shall be confirmed as Aval Karkun unless he has passed Revenue Qualifying Examination;

(ii) Officiating promotion as Aval Karkun will not be given to any clerk who has not passed Revenue Qualifying Examination, if there is any other clerk, even junior to him, who has passed the examination and is considered suitable for promotion; and

(iii) A clerk who has been provisionally promoted as Aval Karkun for want of qualified candidates would be reverted as a clerk on the availability of qualified candidates.

Rule (i) does not add anything nor does it make any change or alteration. It merely reaffirms and reiterates what has been said by the Government at all stages, namely, that no clerk shall-be confirmed as Aval Karkun unless he has passed Revenue Qualifying Examination. It is the central theme of all executive rules or instructions issued by the Government from time to time in regard to the Revenue Services. Similarly Rule (ii) also does not carry the matter any further. It is the necessary consequence of Rule (2) and Rule (C), because if seniority for the purpose of promotion from the cadre of clerk to that of Aval Karkun is to be determined on the basis of the date of passing Revenue Qualifying Examination, a clerk who has passed Revenue Qualifying Examination would certainly be entitled to be preferred to a clerk who has not passed it, even though in the matter of ranking for other purposes, the former be junior to the latter. Moreover, Rule (ii) clearly shows that the principle of seniority set out in Rule (2) and Rule (C) is only for the purpose of promotion and those rules are not intended to lay down a principle of seniority for all purposes.

21. So far as Rule (iii) is concerned, it requires a little consideration, because this is the first time that we find It laid down by the Government in so many terms. This rule lays down a principle of reversion from the cadre of Aval Karkuns to the cadre of clerks. It is a necessary consequence of the principle of seniority for promotion laid down in Rules (2) and (C). It is clear that according to Rules (2) and (C), once a clerk passes Revenue Qualifying Examination he will be senior in the cadre of clerks to an officiating Aval Karkun who has not passed Revenue Qualifying Examination, and, therefore, it would not be unfair or unjust that the latter should be reverted in order to make way for the former who has become senior in the cadre of clerks. That would be merely reflecting the seniority in the cadre of clerks in the higher cadre of promotion, namely, cadre of Aval Karkuns. Such a principle would be a rational principle of reversion having just and reasonable relation to the object of securing efficiency of service and it cannot be regarded as violative of Article 16 of the Constitution. But the question would still remain whether this principle of reversion is violative of the proviso to Section 81 Sub-section (6) of the Bombay Reorganization Act, 1960, in relation to those who were promoted as officiating Aval Karkuns after 1st November 1956 but before 1st May 1960. The argument of the petitioners was that prior to 1st May 1960 these officiating Aval Karkuns were not liable to be reverted on ground of availability of qualified candidates, but now, after 1st May 1960, they would be so liable by reason of Rule (iii) and this would clearly amount to variation in their conditions of service and since such variation was made by the Government of Gujarat, without obtaining the prior approval of the Central Government as required by the proviso to Section 81 Sub-section (6), Rule (iii) would be invalid. We do not think this argument is sustainable. We shall presently state our reasons but, before we do so, we may point out straight-way that even if this argument were valid, it would apply only to those who were promoted as officiating Aval Karkuns after 1st November 1956 but before 1st May 1960. It would not apply to those officiating Aval Karkuns who are promoted after 1st May 1960 because in their case there would be no question of violation of the proviso to Section 81 Sub-section (6). But even with regard to the officiating Aval Karkuns promoted between 1st November 1956 and 1st May 1960, we do not think Rule (iii) effects any variation In their conditions of service. It was at no time their condition of service that whilst officiating, they would not be reverted except on certain specified grounds so that the introduction of a new ground of reversion would amount to alteration of such condition of service. An officiating Aval Karkun has no right to the post and, therefore, he can be reverted on any ground which is not extraneous of Article 16, provided, of course, the reversion is not by way of punishment so as to attract observance of the requirement of Article 311(2). He has no right to say that he shall not be reverted except on certain specified grounds, unless the rules, statutory or executive, say so. Here there is nothing in the rules prior to 1st May 1960 which says that an officiating Aval Karkun shall be reverted only on certain specified grounds. If that be so, the introduction of a new ground on which officiating Aval Karkuns may be reverted under Rule (iii) cannot be said to amount to variation of their conditions of service. Rule (iii) must, therefore, be held to be a valid rule which would govern reversion after 14th June 1966.

22. Then we come to the Rules of 22nd July 1966. The strongest reliance was placed on behalf of the petitioners on these rules and it was contended that whatever might have been the position prior to the making of these rules, it was fundamentally changed and Rules (1) to (4), (a) and (b) and (ii) and (iii) were abrogated by these Rules. Now these rules are statutory rules made by the Governor in exercise of the power conferred under the proviso to Article 309 and there can, therefore, be no doubt that if there is anything in these rules inconsistent with Rules (1) to (4), (a) and (b), and (ii) and (iii), the latter would stand superseded. The question which, therefore, arises for determination is whether Rules (1) to (4), (a) and (b), and (ii) and (iii) can be said to have been superseded by the Rules of 22nd July 1966.

23. To answer this question It is necessary to refer to the back' ground in which the Rules of 22nd July 1966 came to be enacted. Prior to 22nd July 1966 there was only one mode of recruitment to the post of Aval Karkun, namely, by promotion from amongst clerks. The question of filling in some posts of Aval Karkuns by direct recruitment with a view to strengthening the cadre of Aval Karkuns and improving its efficiency had been engaging the attention of the Government for some time and after giving due consideration to the question, the Government ultimately decided that direct recruitment to the posts of Aval Karkuns should be made in addition to promotion from the cadre of clerks and that the ratio of direct recruits to promotees should be 1 : 2. The Government, with a view to giving effect to this decision, made the Rules of 22nd July 1966. Rule (1) of these Rules provided:

(1). Appointment to the posts of Aval Karkuns shall be made:

a) by direct selection on the result of a competitive examination held by the Gujarat Public Service Commission in accordance with the Scheme hereto annexed; or

(b) by promotion from amongst clerks of the subordinate Revenue Service. The ratio of direct recruitment and promotion will be 1: 2.

Rule 2 laid down the requirement as to age and educational qualification which a candidate must possess in order to be eligible for appointment by direct selection and Rule 3 made certain other provisions in regard to candidates appointed by direct selection, one of which was that they would have to pass Revenue Qualifying Examination during the probation period as provided in the Scheme of training. The argument of the petitioners was, and that argument found favour with Mr. Justice Divan, that since the rules of 22nd July 1966 did not lay down the requirement of passing of Revenue Qualifying Examination by a clerk as a condition of eligibility for promotion or confirmation in the cadre of Aval Karkuns, any such requirement, which might have existed prior to the enactment of these Rules, was superseded and no officiating Aval Karkun could thereafter be reverted from the cadre of Aval Karkun on the ground that he had not passed the Revenue Qualifying Examination. This argument was sought to be supported by two decisions of the Supreme Court one in Mohammad Bhakar v. Y. Krishna Reddy (supra) and the other in State of Haryana v. Shamsher Jang : (1972)IILLJ186SC . We have given our anxious consideration to this argument, particularly since it has appealed to Mr. Justice Divan, but with the greatest respect to the learned Judge, we find ourselves unable to accept it. We do not think that the rules of 22nd July 1966 so radically altered the situation that the petitioners and other officiating Aval Karkuns like them could no longer be reverted from the cadre of Aval Karkuns on the ground that they had not passed the Revenue Qualifying Examination. The best and most convenient method of dealing with this question would be to discuss the impact of the Rules of 22nd July 1966 on Rules (1) to (4), (a) and (b), and (ii) and (iii) and to determine whether they are superseded or they still continue to subsist despite the Rules of 22nd July 1966.

24. There is one argument as to the approach to be adopted by the Court while construing the Rules of 22nd July 1966, which must be considered by us, before we proceed to examine the Rules of 22nd July 1966. The petitioners contended that the object of enacting the Rules of 22nd July 1966 was to provide a uniform set of rules for all employees in the State, irrespective whether they came from the erstwhile State of Bombay or the erstwhile State of Saurashtra. There was no requirement of passing Revenue Qualifying Examination in the erstwhile State of Saurashtra, with the result that employees coming from the erstwhile State of Saurashtra would be entitled to be promoted as Aval Karkuns without passing Revenue Qualifying Examination, while employees from the erstwhile State of Bombay would not be eligible for being promoted as Aval Karkuns unless they passed Revenue Qualifying Examination. This would create a very invidious distinction in the matter of promotion and confirmation between two groups of employees belonging to the same integrated cadre and that would be most undesirable. It would be awkward, said the petitioners, that in the Bombay districts there should be Revenue Qualifying Examination, while in the Saurashtra districts there should be no such examination. It was in order to eliminate this disparate treatment between two groups of employees and to bring about uniformity that the Rules of 22nd July 1966 were enacted by the Governor and, therefore, they should be so construed as to achieve this objective and that could be done only by construing them as providing that in case of clerks promoted as Aval Karkuns, there shall be no Revenue Qualifying Examination. This argument of the petitioners, though at first blush attractive, is in our opinion, based on a misconception of the factual position. It is not correct to say that on 22nd July 1966 when these rules were enacted, there was no Revenue Qualifying Examination in the Saurashtra districts. The Government Resolution dated 28th December 1962 clearly postulated that Revenue Qualifying Examination was being held in the Saurashtra Districts and it actually sought to bring about 'as much uniformity as possible in the rules and orders prevailing in all the Divisions of the State in the interest of uniform treatment in respect of the departmental examination rules for the members of the subordinate service in all the Divisions'. Clause 2 of the Government Resolution dated 28th December 1962 deleted Rule 6(a) of the Departmental Examination Rules published in the Notification dated 19th April 1954 issued by the ex-State of Saurashtra and made the Bombay Revenue Qualification Examination Rules in respect of permission to appear for the Revenue Qualifying Examination applicable to the Saurashtra districts. The Government Notification dated 14th June 1966 also prefaced the rules and syllabii for the Revenue Qualifying Examination by saying that the Revenue Qualifying Examination is being held 'according to Ex-Bombay State Rules and Ex-Saurashtra Rules' and the question, therefore, of unification of these two sets of examinations was under consideration of Government and the Government had accordingly decided to prescribe Rules and syllabii for the examination in all the Divisions of the State. We are not concerned in these petitions with the question whether the prescription of the Revenue Qualifying Examination in the Saurashtra districts was valid or not, but the fact remains that Revenue Qualifying Examination was being held in Saurashtra districts according to Ex-Saurashtra Rules and by the Government Resolution dated 28th December 1962 a change was made in the mode of selection of candidates for grant of permission to appear at the examination and by the Government Notification dated 14th June 1966 a common set of Rules and syllabii was prescribed for all the districts in the State. The Rules of 22nd July 1966 were enacted in the context of this background and it is not correct to say that the Governor enacted them with a view to removing the disparity arising by reason of the requirement of passing Revenue Qualifying Examination in the Bombay districts and the absence of such requirement in the Saurashtra districts. This consideration should not, therefore, weigh with us in construing the Rules of 22nd July 1966 in the manner suggested on behalf of the petitioners.

25. Now it is apparent that the Rules of 22nd July 1966 are intended merely to lay down an additional mode of appointment to the cadre of Aval Karkuns besides the existing mode of appointment by promotion from amongst clerks. Prior to 22nd July 1966 there was only one mode of appointment, namely, promotion from amongst clerks. There was no appointment by direct recruitment. One hundred per cent of the posts were filled in by promotion. Now the Governor decided to introduce another mode of appointment by direct recruitment and the Rules of 22nd July 1966 therefore provided that one-third of the posts shall be filled in by direct recruitment and the remaining two-third by promotion. The Rules of 22nd July 1966 having provided for the mode of appointment by direct recruitment, proceeded to lay down what shall be the age and educational qualification which a candidate should possess in order to be eligible for appointment by direct recruitment and also made other provisions in regard to candidates appointed by direct recruitment. There was, however, no provision made by the Rules of 22nd July 1966 as to what method should be followed in promoting clerks as Aval Karkuns or what factors shall be considered relevant for the purpose of making promotion. The Rules of 22nd July 1966 did not say whether promotion should be made by selection or seniority alone or seniority-cum-merit or merit-cum-seniority : they also did not say what shall be the age, experience or qualification for promotion. These are matters on which the Rules of 22nd July 1966 remained silent and rightly so, because they were not intended to make provision in regard to matters relating to promotion. The Rules of 22nd July 1966 undoubtedly referred to the mode of appointment by promotion, because they were meant to lay down an additional mode of appointment by direct recruitment besides the mode of appointment by promotion and it was necessary to prescribe what shall be the ratio of direct recruitment to promotion. But the Rules of 22nd July 1966 thereafter refrained from making any reference to the mode of appointment by promotion and also did not make any provision in regard to various matters incidental to promotion as they did in regard to the mode of appointment by direct recruitment. It would be interesting to compare the Rules of 22nd July 1966 with the Mysore Secretariat Services Recruitment Rules 1957, which came up for consideration before the Supreme Court in the Chief Secretary to the Government of Mysore v. H.G. Chandraiah (supra). There, Rule (2) specifically provided that the methods of recruitment and the minimum qualifications and the period of probation, if any, shall be as specified in the corresponding entries of columns 2 and 3 of the Schedule. A pass in the prescribed Departmental Examination was prescribed as minimum qualification for promotion to the post of Superintendents but in the case of Assistants, no such requirement was prescribed for promotion. It was for this reason that the Supreme Court observed: '...the said rule deals with different categories of employees, prescribes different methods of recruitment and provides different conditions. A comparison of the minimum qualifications prescribed for recruitment of Superintendents and Assistants shows that in the case of the former, for promotion, a pass in the prescribed departmental examination is a condition for promotion, whereas in the letter case no such condition is laid down'. So also if we look at the Saurashtra Civil Service Classification and Recruitment Rules, we find it stated in the heading under Appendix D : 'Rules prescribing the qualifications of candidates for and methods of recruitment to Subordinate Services' and Rules 3 and 4 in regard to Mahalkaris and Head Clerks at pages 64 and 65 clearly prescribe that to be eligible for promotion the candidate must have passed the Revenue Qualifying Examination and Rule 8 in regard to Aval Karkuns states: 'The appointments will be on probation of two years. In the case of direct recruits they will have to pass the Revenue Qualifying Examination within 2 years from the date of appointment' while no such requirement is prescribed in regard to persons appointed as Aval Karkuns by promotion. But the object and purpose of enacting the Rules of 22nd July 1966 and the scheme of its provisions are entirely different. It is, therefore, not possible to accept the contention of the petitioners that even if there was any requirement that a clerk should pass Revenue Qualifying Examination in order to be entitled to promotion, it was superseded by the Rules of 22nd July 1966. The argument of the petitioners proceeds on the postulate that since no qualifications are prescribed by the Rules of 22nd July 1966, every clerk is entitled to be considered for promotion and if there is any executive instruction or rule which prescribes a qualification for being eligible for promotion, it would contradict the Rules of 22nd July 1966. But, as pointed out above, this postulate is not correct. The dominant intention of the Government in making the Rules of 22nd July 1966 was to provide for direct recruitment to the post of Aval Karkun and not to supersede any existing rules or orders as to how promotions should be made. The Government merely intended to make direct recruitment as an additional mode of appointment and since there were going to be two modes of appointment, the Government had to say how many posts shall be filled in by direct recruitment and how many, by promotion. The Government never intended to provide what shall be the conditions of promotion and how promotion shall be made. That is why there is no provision in the Rules of 22nd July 1966 as regards promotees: all the provisions are in regard to direct recruitment. We are, therefore, unable to agree with Mr. Justice Divan that even if there was any requirement that a clerk should pass Revenue Qualifying Examination in order to be entitled to promotion, such requirement was superseded by the Rules of 22nd July 1966.

26. The petitioners leaned heavily on the decision of the Supreme Court in Slate of Haryana v. Shamsher Jang, to which We have already made a reference, but we do not think this decision is of much assistance to the petitioners. The question which arose for consideration before the Supreme Court in this case was as to whether certain executive instructions issued by the Government of Haryana on 21st June 1958 altered the conditions of service of the respondent as set out in the Punjab Civil Secretariat (State Service Class 111) Rules 1952. Rule 6(1) provided that posts in the Services in the case of Assistants shall be filled by promotion of Senior Clerks or by selection from amongst officials employed in departments of Government other than the Civil Secretariat and Rule 6(3) declared that appointment to any post by the promotion of officials already in the service or by transfer of officials employed in Government departments other than the Civil Secretariat shall be made strictly by selection, and no official shall have any claim to such appointment as of right. The Government of Haryana thereafter issued instructions on 21st June 1958 providing that 25 per cent of the vacancies in the cadre of Assistants will be filled by appointment of suitable personnel from service officials in the offices of the heads of Departments in the State while the remaining 5 per cent will be filled by promotion from amongst the clerks and Clause (b) of these instructions stated that for the purpose of appointment as Assistant, a test would be held by the Punjab Public Service Commission and for officials belonging to the offices of the Heads of Departments, this test would be an objective one while for the Head Clerks it would be a qualifying test. The result was that passing of this test was insisted upon as a necessary qualification before a clerk could be considered for promotion as an Assistant. The question was whether this requirement introduced by the instructions issued by the Government of Haryana could be said to alter the existing conditions of service of clerks as set out in Rules 6(1) and 6(3). The Supreme Court held that it did alter the conditions of service and Hegde J., speaking on behalf of the Supreme Court, gave the following reasons for this view:

Hence we have to see whether the instructions with which we are concerned, so far as relate to the clerks in the Secretariat amend or alter the conditions of service prescribed by the rules framed under Article 309. Undoubtedly the instructions issued by the Government add to those qualifications. By adding to the qualifications already prescribed by the rules, the Government has really altered the existing conditions of service. The instructions issued by the Government undoubtedly affect the promotion of concerned officials and therefore they relate to their conditions of service. The Government is not competent to alter the rules framed under Article 309 by means of administrative instructions. We are unable to agree with the contention of the State that by issuing the instructions in question, the Government had merely filled up a gap in the rules. The rules can be implemented without any difficulty. We see no gap in the rules.

These observations made in the context of the Punjab Civil Secretariat (State Services Class 111) Rules 1952 cannot help us in arriving at the true construction of the Rules of 22nd July 1966. It is not a valid argument to compare the language of one set of rules with the language of another and by finding some similarities here and there, to say that the construction placed by the Supreme Court on one set of rules should be blindly and mechanically applied to the construction of the other. We must see what is the principle laid down by the Supreme Court in arriving at a particular construction of a set of rules. It is that principle which we must apply, if it is otherwise applicable. Here the principle which the Supreme Court laid down was whether the executive instructions added to the qualifications prescribed by the statutory rules or by issuing the executive instructions the Government merely filled up a gap in the rules. The Supreme Court held that so far as Punjab Civil Secretariat (State Service Class III) Rules 1952 were concerned, there was no gap in the Rules and the introduction of the requirement of a test as a qualifying condition added to the qualifications already prescribed by the statutory rules and, therefore, amounted to variation in the conditions of service of clerks. Here in the present case, as we have already pointed out, the Government never intended to lay down what shall be the mode of promotion and what shall be the qualifications possessed by a clerk before he is considered fit for promotion. It is indeed difficult to believe that the Government could have ever intended that there should be no qualification at all not even minimum length of service-for a clerk to be promoted as Aval Karkun. It is also difficult to imagine that within one month of issuing the Notification dated 14th June 1966 prescribing passing of Revenue Qualifying Examination the Government should have changed its mind and decided to abrogate the requirement of passing Revenue Qualifying Examination in case of promotees.

27. Now if we look at Rules (1) to (4), (a) and (b) and (ii) and (iii), it is clear that none of these rules makes it a condition of promotion that a clerk should pass Revenue Qualifying Examination and therefore even if the Rules of 22nd July 1966 were construed as superseding the requirement that a clerk should pass Revenue Qualifying Examination in order to be eligible for promotion, they would have no invalidating effect on these Rules. But it may be said, contrary to the view we are taking, that Rule (4) in so far as it provides that a person who fails to pass Revenue Qualifying Examination within the prescribed limit shall be permanently relegated to the position of a clerk, makes passing of Revenue Qualifying Examination a condition of promotion. Even if that be so, we do not think, for reasons which we have discussed in the preceding two paragraphs, that Rule (4) is superseded by the Rules of 22nd July 1966. But, even if we assume with the petitioners that Rule (4) is superseded by the Rules of 22nd July 1966, the position in regard to the other rules is quite clear. They cannot be said to have been superseded by the Rules of 22nd July 1966.

28. So far as Rule (1) is concerned, we have already pointed out that it is not a condition of promotion to the cadre of Aval Karkuns but it is a condition of confirmation in that cadre. Since it is not a condition which affects promotion to the cadre of Aval Karkuns, it cannot, in any view of the case, be said to be inconsistent with the rules of 22nd July 1966. It is a condition which operates after a clerk is promoted as an Aval Karkun under Clause (b) of Rule (1) of the Rules (1) of the Rules of 22nd July 1966. It is really a part of the conditions of service of the cadre of Aval Karkuns. The Rules of 22nd July 1966 do not operate in the filed of conditions of service of the cadre of Aval Karkuns. The Rules of 22nd July 1966 do not operate in the field of conditions of service of the cadre of Aval Karkuns and Rule (1) which lays down a condition of service of the Cadre of Aval Karkuns cannot, therefore, be regarded as superseded by the Rules of 22nd July 1966.

29. Rule (2) merely prescribes a mode of promotion to the cadre of Aval Karkuns. It says how promotion shall be made : what method shall be followed in making promotion. It does not prescribe any qualification for being entitled to be considered for promotion as Aval Karkun. It does not, therefore, fall within the ratio of the decision in Mohammad Bhakar v. Y. Krishna Reddy (supra) or the State of Haryana v. Shamsher Jang (supra). Since there is no specific provision in the Rules of 22nd July 1966 laying down the principle of promotion of clerks to the cadre of Aval Karkuns, the Government could have laid down an appropriate principle of promotion by executive instructions or rules. Here in the present case there was already Rule (2) in existence which provided a principle of promotion and it must, therefore, continue to operate along with the Rules of 22nd July 1966. This view which we are taking is amply supported by the observations of the Supreme Court in Sant Ram v. State of Rajasthan : (1968)IILLJ830SC . There the Indian Police Service (Pay) Rules 1954 created selection grade posts and provided that a member of the service holding a post in the senior time scale may be appointed to the post in the selection grade. There was, however, no provision made in the Rules as to how a member of the service in the senior time scale shall be promoted to a selection grade post and what shall be the principle followed in making such promotion. The Government of India, therefore, laid down the principle of promotion to selection grade post by issuing administrative instructions in certain communications. The question arose whether such administrative instructions could be issued by the Government of India. The argument on behalf of the petitioner was that 'in the absence of any statutory rules governing promotions to selection grade posts, the Government cannot issue administrative instructions and such administrative instructions cannot impose any restriction not found in the Rules already framed'. The Supreme Court rejected this argument of the petitioners and observed:

It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed to promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory Rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.

The same ratio which was applied by the Supreme Court in Mohammad Bhakar v. Y. Krishna Reddy (supra) and State of Haryana v. Shamsher Jang (supra) was also applied in this case. But the conclusion was different. Whereas in Mohammad Bhakar v. Y. Krishna Reddy and State of Haryana v. Shamsher Jang the Supreme Court took the view that there was no gap in the statutory rules and the administrative instructions were inconsistent with the statutory rules, the Supreme Court found that in Sant Ram v. State of Rajasthan (supra) the administrative instructions merely filled up a gap in the statutory rules. The present case before us is more akin to Sant Ram v. State of Rajasthan (supra) than to Mohammad Bhakar v. Y. Krishna Reddy and State of Haryana v. Shamsher Jang. Here also, as in Sant Ram v. State of Rajasthan, there is no specific provision in the Rules of 22nd July 1966 laying down the principle of promotion of clerks to the cadre of Aval Karkuns and, therefore, Rule (2) which lays down such principle of promotion merely supplements the Rules of 22nd July 1966 and cannot be said to have been superseded by them.

30. So far as Rules (3) is concerned, it is clearly incidental to Rules (1) and (2) and if Rules (1) and (2) are not superseded by the Rules of 22nd July 1966, Rule (3) cannot be said to have been so superseded. Similarly Rule (a) is also nothing more than a mere consequence of Rule (1) and it must, therefore, stand on the same footing and cannot be regarded as having been superseded by the Rules of 22nd July 1966.

31. Then we go on to consider, Rule (b). It lays down the principle governing seniority in the cadre of Aval Karkuns and provides that seniority in the cadre of Aval Karkuns shall be determined on the basis of the date of passing Revenue Qualifying Examination. We may point out straight-way that, in the course of the arguments before us, Mr. C. T. Daru, learned advocate appearing on behalf of the petitioners, with his usual fairness, readily conceded that success at the Revenue Qualifying Examination is not unconnected with efficiency of service and, therefore, the principle of seniority embodied in Rule (b) can form a valid principle of fixation of seniority not violative of Article 16. It was also conceded by Mr. C. T. Daru on behalf of the petitioners, and, in our opinion rightly, that the principle of seniority in Rule (b) cannot be said to be superseded by the Rules of 22nd July 1966, because the Rules of 22nd July 1966 do not deal with the subject of seniority in the cadre of Aval Karkuns : they do not occupy the field of seniority in the cadre of Aval Karkuns so as to exclude the operation of any other principle of seniority. The principle of seniority laid down in Rule (b) must, therefore, be held to be unaffected by the Rules of 22nd July 1966 and it must be concluded that it continues to operate even after the enactment of the Rules of 22nd June 1966.

32. We have already pointed out that Rule (ii) is a necessary consequence of Rule (2). It is in the nature of a corollary to that Rule and if that Rule stands unaffected by the Rules of 22nd July 1966, Rule (ii) must also likewise stand unaffected.

33. That takes us to a consideration of Rule (iii). This Rule which provides that an officiating Aval Karkun who has not passed Revenue Qualifying Examination may be reverted to make way for a clerk who has passed Revenue Qualifying Examination is a rule of reversion from the cadre of Aval Karkuns and it is very much different from a condition of promotion unless, of course, it can be said that the rule of reversion is of such a nature that, in its true effect and substance, it is really a cloak or disguise for a condition of promotion. But that cannot be said of Rule (iii). Rule (iii) flows logically out of Rule 2 which provides that, for the purpose of promotion as Aval Karkun, seniority in the cadre of clerks shall be determined according to the date of passing Revenue Qualifying Examination. The effect of Rule (2) is that, for the purpose of promotion, clerks who have passed Revenue Qualifying Examination will be regarded as senior to those who have not passed: they would have a preferential right to be promoted as Aval Karkuns. This preferential right to be promoted is projected in the higher cadre of promotion-in other words, given effect to-by adopting the rule of reversion in Rule (iii). Rule (iii) is, therefore, clearly not a condition of promotion and it cannot be held to be superseded by the Rules of 22nd July 1966.

34. The result is that, barring perhaps Rule (4), all the other rules, namely, Rules (1), (2) and (3), (a) and (b) and (ii) and (iii) stand unaffected by the Rules of 22nd July 1966 and continue to govern the conditions of service of the petitioners and other officiating Aval Karkuns promoted after 1st November 1956. We may point out that the same conclusion would follow even if the view were taken that the Rules of 22nd July 1966 supersede Rules (1) to (3), (a) and (b) and (ii) and (iii), because in that event, the Rules of 22nd July 1966 would be void as being in violation of the proviso to Section 81 Sub-section (6) of the Bombay Reorganization Act, 1960. Rules (1) to (3), (a) and (b) and (ii) and (iii) confer on clerks who have passed Revenue Qualifying Examination a preferential right to be promoted as Aval Karkuns as against clerks who have not passed it as also a right to be confirmed in the cadre of Aval Karkuns which right is not possessed by the latter category of clerks. If the Rules of 22nd July 1966 were construed as superseding Rules (1) to (3), (a) and (b) and (ii) and (iii), these rights belonging to Clerks who have passed Revenue Qualifying Examination would be abrogated and their conditions of service as embodied in Rules (1) to (3), (a) and (b) and (ii) and (iii) which were in force immediately prior to 1st May 1960 would to that extent be altered to their disadvantage. This obviously would be impermissible without obtaining the prior approval of the Central Government under the proviso to Section 81 Sub-section (6) of the Bombay Reorganization Act, 1960. It was common ground between the parties that no such prior approval of the Central Government was obtained by the Governor before enacting the Rules of 22nd July 1966. The Rules of 22nd July 1966 could not, therefore, override Rules (1) to (3), (a) and (b) and (ii) and (iii) which laid down the conditions of service of the petitioners and other officiating Aval Karkuns immediately prior to 1st May 1960 and they would be void, if they were construed as doing so. It would, therefore, seem that, whichever way we look at the question, it is clear that Rules (1) to (3), (a) and (b) and (ii) and (iii) continue to operate even after the making of the Rules of 22nd July 1966 and it is in the context of this background that we have to consider whether the threatened reversion of the petitioners on the ground that they have passed Revenue Qualifying Examination is justifiable.

35. We may observe in the passing that, in the course of the arguments, a reference was made by the learned Advocates of both parties to the Revenue Qualifying Examination Rules made by the Governor on 4th December 1970 in exercise of the power conferred under the proviso to Article 309 of the Constitution. These Rules were made in suppression of the existing rules and orders and they were intended to regulate the conditions of service of persons recruited in the Revenue Subordinate Service in so far as they relate to the passing of Revenue Qualifying Examination. But we do not think any useful purpose would be served by referring to these Rules, because it is evident from the provisions contained in these Rules and that was conceded by both sides-that these Rules are prospective in operation and apply only to those Clerks who have not exhausted their chances of appearing at the Revenue Qualifying Examination and they have, therefore, no bearing on the determination of the controversy in regard to the petitioners who had admittedly exhausted their chances and were disentitled to appear at the Revenue Qualifying Examination at the date when these Rules were made by the Governor. We do not, therefore, propose to say anything more about these Rules.

36. Now it is well-settled law that an Officiating Government servant has no right to the post on which he is officiating. He can be reverted from that post at any time provided (1) the reversion does not amount to reduction in rank which would attract the applicability of Article 311(2); (2) the reversion is not based on any extraneous or irrelevant ground; and (3) the reversion is not violative of Article 16. The last two are, of course, different facets of the same ground and they over-lap. If the ground on which reversion is based is extraneous or irrelevant, the reversion would be violative of Article 16 and equally, if the reversion does not offend Article 16, it must necessarily be based on a rational ground. Vide Union of India v. Gajinder Singh : [1972]3SCR660 . Here, in the present case, it was common ground between the parties that the proposed reversion of the petitioners was not by way of punishment and it would not amount to reduction inrank within the meaning of Article 311(2). Therefore, the only ground on which the proposed reversion of the petitioners could be challenged was that it was based on an extraneous or irrelevant ground and was, therefore, violative of Article 16. But this ground cannot be sustained for the following reasons:

(A) If seniority in the cadre of Aval Karkuns is determined on the basis of the date of passing Revenue Qualifying Examination as laid down in Rule (b), those who have not passed would be junior to those who have passed and if they are reverted retaining those who have passed, it cannot be said that reversion is based on an irrational or invalid principle. It is always a valid principle of reversion that the juniors amongst those officiating should be reverted in preference to the seniors. This principle can neither be regarded as extraneous or irrelevant nor can it be said to be violative of Article 16.

(B) Rule (1) lays down that a clerk shall not be confirmed in the cadre of Aval Karkuns unless he has passed Revenue Qualifying Examination. Therefore, only a clerk who has passed Revenue Qualifying Examination has a right to be borne substantively on the cadre of Aval Karkuns. The officiating Aval Karkuns who are sought to be retained have passed Revenue Qualifying Examination and are consequently entitled to be borne substantively on the cadre of Aval Karkuns. The petitioners having exhausted their chances can not now pass Revenue Qualifying Examination and can, therefore, never qualify for being confirmed and borne substantively on the order of Aval Karkuns* If, therefore, the petitioners are reverted in preference to the of ficiating Aval Karkuns who have passed Revenue Qualifying Examination on abolition of posts or to make way for those who are qualified to be confirmed in the cadre of Aval Karkuns when the petitioners can never be confirmed and would always remain officiating, it cannot be said that the reversion is based on any irrational or unjust ground. It would be a valid principle of reversion not violative of Article 16.

(C) Rule (iii) lays down a rule of reversion from the cadre of Aval Karkuns by providing that an officiating Aval Karkun who has not passed Revenue Qualifying Examination may be reverted to make way for a clerk who has passed Revenue Qualifying Examination. We have already discussed this rule and pointed out that it flows logically out of Rule (2) which lays down a mode of promotion, namely, that for the purpose of promotion seniority in the cadre of clerks shall be determined according to the date of passing Revenue Qualifying Examination. Once a clerk passes Revenue Qualifying Examination he is to be regarded for the purpose of promotion as senior to a clerk who has not and he has a preferential right to be promoted as Aval Karkun. This preferential right to be promoted is projected in = the higher cadre of promotion by providing that the clerk who has such preferential right shall be promoted to the cadre of Aval Karkun by reverting the clerk who has not. This principle of reversion which is intended to give effect to the preferential right of promotion of a clerk who has passed Revenue Qualifying Examination cannot be regarded as irrational 01 irrelevant and must be held to be outside the inhibition of Article 16. We find an a logical principle of reversion sustained by the Supreme Court in paragraph 12 of the judgment in Ramaswami v. Inspector General of Police : (1970)ILLJ649SC .

(D) It would appear from the judgment of the Supreme Court in Union of India v. Gajinder Singh (supra) that a principle of reversion based on failure to pass Revenue Qualifying Examination cannot be regarded as irrational or unjust so as to be violative of Article 16. The respondent in the appeal before the Supreme Court in that case was a permanent Kanungo in the Revenue Department. He was appointed to officiate in the post of Naib Tahsildar in pursuance of paragraph 37(ii) of the Standing Order passed by the Financial Commissioner. He was reverted from the officiating post of Naib Tehsildar to his substantive post of Kanungo for the reason that he did not pass the Departmental Examination of Naib Tehsildar within the period prescribed in paragraph 34 of the Standing Order. This reversion was challenged by him by filing a petition in the Court of the Judicial Commissioner, Himachal Pradesh. The learned Judicial Commissioner, quashed the order of reversion on the ground that it was made i violation of Article 311(2). The Union of India thereupon preferred an appeal to the Supreme Court. The Supreme Court took the view that the reversion of the respondent was not attended with any penal consequences and there was accordingly no question of contravention of the requirements of Article 311(2). The Supreme Court then proceeded to state in paragraphs 9 and 10 of the judgment:

The respondent, no doubt, was appointed to officiate in the post of Naib Tehsildar in pursuance of Para 37(ii) of the Standing Order and that did not provide that he could be reverted for his not passing the departmental examination within any specified tittle but that would not in any way vitiate the order of reversion as the respondent had no right to hold the post and the 2nd appellant had the undoubted power to revert him. The fact that the 2nd appellant gave a wrong reason for reverting the respondent would not in any way affect the power which he undoubtedly possessed to revert him.

The contention of the respondent that the retention of his juniors to officiate In the post of Naib Tehsildar violated his fundamental right under Articles 14 and 16 of the Constitution has no substance for his juniors were retained either because they had passed the departmental examination or because they had been exempted from passing that examination. The respondent was not, therefore, similarly situate with his juniors and therefore, there was no discrimination to attract the Articles.

The Supreme Court pointed out that paragraph 37(ii) of the Standing Order did not provide that the respondent could be reverted for not passing the departmental examination within any specified time and therefore, it might be said that the reason given for reverting the respondent was a wrong reason. But that did not 'in any way vitiate the order of reversion as the respondent had no right to hold the post and the 2nd appellant had the undoubted power to revert him'. The only ground on which the respondent could challenge the order of reversion was that it was violative of Article 16 and that ground the respondent urged by saying that his reversion, when those junior to him were retained, as officiating Naib Tehsildars, was violative of Article 16. The Supreme Court, however, rejected this ground by observing that his juniors were retained either because they had passed the Departmental Examination or because they had been exempted from passing that examination and, therefore, the respondent who had not passed the departmental examination and was not exempted from passing it was not similarly situate with his juniors. The passing of the departmental examination was, therefore, regarded as a valid basis for differentiating between officiating Naib Tehsildar in the matter of reversion. Here also in the present case the petitioners who have not passed Revenue Qualifying Examination are sought to be reverted while other officiating Aval Karkuns who have passed Revenue Qualifying Examination are being retained. That cannot be regarded as violative of Article 16 and once that is accepted, it is clear that the petitioner cannot complain of their threatened reversion because, to use the words of the Supreme Court, they have no right to hold the post and the Government has the undoubted power to revert them.

37. It will, therefore, be seen that there are no less than four reasons for any one of which the proposed reversion of the petitioners can be justified. It is not possible to say that the proposed reversion of the petitioners is invalid on any ground. It was faintly suggested on behalf of the petitioners in a half-hearted attempt to combat this conclusion that the only criterion on which reversion could be validly affected was seniority in the cadre of clerks, because that was the cadre from which promotion was made and, therefore, officiating Aval Karkuns who were junior in the cadre of clerks were liable to be reverted in preference to those who were senior in the cadre of clerks. But this suggestion has no merit because there is no inviolable rule that reversion from a higher cadre should be effected only on the basis of the seniority in the lower cadre. It is open to the Government to adopt any principle of reversion it thinks fit, provided, of course, it is not based on any extraneous or irrelevant ground and is not violative of Article 16. Moreover, as is clear from Rule (2), seniority in the cadre of clerks for the purpose of promotion as Aval Karkuns is different from seniority for other purposes and the Government would not only be justified in taking into account seniority for the purpose of promotion in making reversion but we feel it would be unjust to make reversion on the basis of seniority for other purposes, ignoring seniority for the purpose of promotion. We, therefore, reach the conclusion that the Government is entitled to revert the petitioners on the ground that they have not passed Revenue Qualifying Examination provided, of course the reversion is sought to be made on account of abolition of posts or for the purpose of promoting clerks who have passed Revenue Qualifying Examination.

38. We accordingly allow these Letters Patent Appeals and dismiss the petitions preferred by the petitioners and discharge the rule issued in each of the petitions. There will be no order as to costs all throughout in each of these petitions.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //