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N.K. Dholakia and ors. Vs. State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectConstitution;Service
CourtGujarat High Court
Decided On
Judge
Reported in(1979)1GLR666
AppellantN.K. Dholakia and ors.
RespondentState of Gujarat
Cases ReferredThe State of Jammu & Kashmir v. Triloki Nath Khosla
Excerpt:
- - for this purpose the secretariat departments were to report vacancies of superintendents to the general administration department well in advance, so as to make, if necessary, a transfer of senior assistant who was due for promotion from another department government have directed that the secretariat departments should make local arrangements to fill temporary leave vacancies of superintendents upto a period of four months by promotion of senior assistants in their own department. at the time when the state of gujarat came into existence with effect from may 1, 1960, they were still working as clerks/typists and thereafter they were promoted to the posts of assistants, not as a result of promotions according to the rule of seniority-cum-merit, but by virtue of their success at the.....b.j. divan, c.j.1. all these four special civil applications arise in connection with inter se seniority of promotee assistants on the staff of the secretariat of the government of gujarat and the challenge is to the same notification and rules. as a matter of fact, the petitioners in special civil application no. 1073 of 1975 are some of the petitioners in special civil application no, 262 of 1975. there are some additional features so far as special civil application no. 791 of 1973 is concerned but the background of facts for all the special civil applications is the same and hence we will dispose of all the four matters by this common judgment.2. we will take up the facts in special civil application no. 1073 of 1975 as they illustrate the questions that arise for our determination......
Judgment:

B.J. Divan, C.J.

1. All these four Special Civil Applications arise in connection with inter se seniority of promotee Assistants on the staff of the Secretariat of the Government of Gujarat and the challenge is to the same notification and rules. As a matter of fact, the petitioners in Special Civil Application No. 1073 of 1975 are some of the petitioners in Special Civil Application No, 262 of 1975. There are some additional features so far as Special Civil Application No. 791 of 1973 is concerned but the background of facts for all the Special Civil Applications is the same and hence we will dispose of all the four matters by this common judgment.

2. We will take up the facts in Special Civil Application No. 1073 of 1975 as they illustrate the questions that arise for our determination. The six petitioners in this Special Civil Application all joined Government service as clerks or typists in the Subordinate Secretariat Service either in Saurashtra, when there was the State of Saurashtra, or at Bombay. All of them were recruited in this cadre through the respective Public Service Commissions. All the petitioners were allocated to the Bilingual State of Bombay as clerks or typists when the Bilingual State of Bombay was formed with effect from November 1, 1956. On May 1, 1960, on the formation of the State of Gujarat, the petitioners were allocated to the State of Gujarat and they have been working in the General Administration Department of the Secretariat. They were confirmed as clerks or typists with effect from May 1, 1960. After that date, these petitioners were promoted as Junior Assistants and in 1963-64, they were promoted to the posts of Senior Assistants. On September 25, 1964, a notification was issued by the Government of Gujarat by which, with effect from 1st October 1964, the cadres of Junior and Senior Assistants in the Secretariat Departments were unified into a single cadre of Assistants. However, the seniority amongst the Assistants was to be governed department wise, that is, according to the departments concerned and the seniority was governed on the principle of continuous officiation as Assistants as the basis for seniority. Upto October 12, 1960, the seniority was department wise and promotions were given department wise in the cadre of Assistants. This principle of department-wise seniority and promotions also given department wise applied to clerks, Junior Assistants Senior Assistants and Superintendents. After October, 2, 1960, there was a common cadre of Superintendents of all departments. On October 12, 1960, there was a common cadre of Senior Assistants of all departments. Government Resolution dated October 12, 1960, by which provision was made for fixation of seniority and regulation of promotions in Secretariat Departments, provided that there should be a common cadre of Superintendents for the whole Secretariat as an experimental measure for one year. This was however not to mean that a centralised cadre of Superintendents was to be operated. Only promotions to the post of Superintendent would be made by General Administration Department out of a common list of Senior Assistants which would be prepared by the General Administration Department. For this purpose the Secretariat Departments were to report vacancies of Superintendents to the General Administration Department well in advance, so as to make, if necessary, a transfer of Senior Assistant who was due for promotion from another department Government have directed that the Secretariat Departments should make local arrangements to fill temporary leave vacancies of Superintendents upto a period of four months by promotion of Senior Assistants in their own Department. The Secretariat Departments would also be competent to sanction leave to the Superintendents in their Departments. It was specifically provided by this resolution that below the level of Superintendents, the cadre and seniority in the Secretariat would be separate for each Department, that is, in the cadres of Assistants, Clerks and Typists, seniority in the Secretariat was to be separate for each department. For the purposes of fixation of seniority, Government directed that the seniority of allocated staff from the Bombay Secretariat Departments should be fixed with reference to the total length of continuous service in a post for which seniority was being determined on the basis of revised absorption in Bombay Secretariat. On September 25, 1964, a resolution was issued by the Government combining the cadres of Junior Assistants and Senior Assistants into a single cadre of Assistants with effect from October 1, 1964. On February 8, 1963, a seniority list of Government servants working as Senior Assistants on 1-1-1963 was prepared and the principle for preparation of that common seniority list was laid down in the circular. By the circular of December 10, 1964, Government confirmed the principle on which the list as of January 1, 1963, was based.

3. It may be mentioned at this stage that, by a subsequent change of nomenclature, Superintendents are now called Section Officers and by virtue of the statutory rules made under the proviso to Article 309 in 1957, there has been a quota system for recruitment as Assistants. Under the quota system, at one time quota of three direct recruits to one promotee was provided for. At other times, the proportion was (sic), and the relevant notifications were issued from time to time in this connection. On July 19, 1969, a seniority list of Assistants was prepared according to the quota provisions and on the basis of continuous officiation in the cadre of Assistants for all the Assistants. This seniority list was challenged in Special Civil Application No. 1330 of 1969 by the direct recruits, in the cadre of Assistants. In that Special Civil Application, a writ of mandamus or any other appropriate writ, direction or order was prayed for directing the Chief Secretary to the Government, General Administration Department, of the State of Gujarat, to treat the resolution and circular dated July 19, 1969 and March 1, 1960 as illegal and void and restraining them from acting on them and to fix seniority of the petitioners, who were direct recruits, as per roaster method in the ratio of 3:1 between direct recruits and promotees. This Special Civil Application was decided by a Division Bench of this Court consisting of A.D. Desai and S.N. Patel, JJ on March 9, 1972. The Division Beach came to the conclusion that the promotees in excess of the prescribed proportion from May 1960 onwards had been illegally promoted and the petitioners who were direct recruits were entitled to a writ of mandamus, commanding the State of Gujarat to adjust the seniority of the petitioners and to prepare a fresh seniority list in accordance with law and after adjusting recruitments from May 1, 1960 and in accordance with the relevant quota or proportion rule at the relevant time. The Division Bench observed:

Continuous officiation means continuous occupation of post to which a person is regularly appointed. The period during which a promotee is appointed in excess of the quota cannot be considered for the purpose of counting seniority vis-a-vis a direct recruit because the promotion is illegal and in violation of the proportion fixed by the Recruitment Rules. Non-allowance of service during the illegal appointment of a promotes cannot be regarded as hardship for the purpose of seniority. For the purpose of fixing seniority only service rendered according to law can be taken into account. To give any other meaning to expression 'continuous officiation' would run counter to the Recruitment Rules and will invalidate it. The normal rule of construction is not to read the rule so as to make it invalid. A construction which validates a rule has to be adapted. Therefore, the correct meaning of the expression 'continuous officiation' is continuance in a post in which the person is legally appointed. Service rendered when legally appointed has to be taken into consideration.

Thereafter, principles for preparing seniority list were laid down and on October 11, 1974 Government issued a resolution making provision for a common cadre of clerks and typists for promotion to the posts of Assistants. By this resolution, Government directed that seniority of clerks/typists should be fixed for all Secretariat Departments on the basis of common cadre retrospectively with effect from May, 1, 1960. It was also directed that the seniority of clerks/typists should be fixed on the basis of the length of their service in the cadre of clerks/typists and their promotions to the posts of Assistant should be regulated accordingly on the basis of common seniority list for all Secretariat Departments as a whole. Fixation of seniority of clerks/typists as Assistant on the basis of the operation of common cadres of clerks/typists with effect from May 1, 1960 was to be subject to the condition that no claim shall be entertained for refixation of pay or payment of arrears on that account; that there should be no claim for stepping up of the pay of the senior persons with reference to the pay of the junior in the revised seniority list of promotees; and that the refixation of seniority of clerks/typists as Assistants should be valid only for the purpose of promotion to the posts of Section Officers. This resolution of October 10, 1974, has been challenged in the instant cases before us, particularly in Special Civil Application Nos. 262 of 1975, 1073 of 1975 and 789 of 1976. Based on this resolution of October 10, 1974 and in the light of tie directions given by the Division Bench of the High Court in its decision in Special Civil Application No. 1330 of 1969 by the judgment dated March 9, 1972, the Government drew up a seniority list on June 20, 1975. That was a provisional list and the final list was prepared and circulated on January 2, 1976. That seniority list of January 2, 1976 has also been challenged in the present group of Special Civil Applications. Thereafter the Governor issued statutory rules under Article 309 of the Constitution in exercise of the powers conferred on him and in supersession of all existing orders regarding fixation of the seniority of Assistants. These rules were called the Gujarat Subordinate Secretariat Service (Seniority of Assistants) Rules, 1977. By Rule 3, of these Rules of 1977, it was provided that there shall be, and shall be deemed to have been with effect from May 1,1960, a common cadre of Assistants which was to comprise of all persons who were Assistants on May 1,1960, all promotee Assistant and all directly recruited Assistants. By Rule 4, it was provided:

The seniority of Assistants as on and after the appointed day shall be fixed in accordance with the following principles, namely-

(i) The seniority of promotee Assistants inter se and the seniority of the directly recruited Assistants inter se shall first be determined separately and thereafter the seniority of all Assistants shall be fixed in accordance with Clause (iv).

(ii) The seniority amongst the promotee Assistants inter se shall be fined on the basis of their length of service in the joint cadre of clerks and typists for all Departments of the Secretatariat as a whole.

(iii) The seniority amongst the directly recruited Assistants inter se shall be deter mined on the basis of their respective dates of regular appointment as Assistants, having regard also to the order of preference given to them by the Public Service Comission at the time of recruitment and also to the rules governing the fixation of their seniority with reference to the date of their passing Departmental Examination required to be passed by them according to the rules for being continued or confirmed as Assistants.

(iv) The combined seniority of the promotee Assistants and the directly recruited Assistants shall then be fixed after adjusting the directly recruited Assistants in such list in accordance with the rules relating to the quota or proportion between these two classes of Assistants which may be in force from time to time and in so fixing the seniority, regard shall be paid to the date of regular officiation as Assistant in the cadre of promotee Assistants and the date of regular appointment in the case of directly recruited Assistants.

(v) All persons who were Assistants on the appointed date shall be given precedence over the promotee Assistants and the directly recruited Assistants and shall be placed first in the combined seniority list of Assistants. These Assistants will rank in the seniority list according to their seniority as subsisting on the appointed date.

Rule 5 of these rules of 1977 provides that the orders regarding common seniority issued in Government Resolution dated 11th October 1974, Government Circular dated 19th October 1974 and the Government Circular dated 2nd January 1976 for clerks and typists and Government Resolution dated 20th June 1975 and the Government Resolution dated 2nd January 1976 for Assistants shall be deemed to be a part of these rules and shall have force accordingly. Thus, by this Rule, 5, by incorporating by reference statutory effect was given also to the rules set out in the impugned resolution of October 11, 1974. Rule 6 of the rules of 1977 provides that for the purpose of removal of doubts, it was specifically being provided that orders regarding appointment to and confirmation in the posts of Juniar Assistants (now Assistants) and Senior Assistants issued in favour of certain Government servants by different departments of the Secretariat after 1st May 1963 shall not invest any right for protection in seniority.

4. The challenge set out in some of the Special Civil Applications in this group regarding drafted persons from Saurashtra and Kutch Secretariat has not been pressed before us in view of the Supreme Court decisions governing such drafted persons.

5. After the rules of October 11, 1977, were made, two Special Civil Applications were filed in this Court, being Special Civil Applications Nos. 1843 of 1974 and 1919 of 1974. Those two matters were disposed of by a common judgment by the Division Bench consisting of J.B. Mehta and A.D. Desai JJ by the judgment dated March 4 1975. The challenge in these two writ petitions under Article 227 of the Constitution was to the fixation of seniority between direct recruits and promotees in the cadre of Assistants in the Secretariat Service and the orders of promotions issued in pursuance of the resolutions, and Cabinet decisions of Government of Gujarat which were impugned in those proceedings. After considering the relevant decisions of the Supreme Court on the point, the seniority rule contained in the Cabinet decision was struck down as being unconstitutional and illegal and the Government were restrained from giving effect to the said rule. A writ of mandamus was issued commanding the State of Gujarat to adjust seniority of the petitioners who were direct recruits, and to prepare a fresh seniority list in accordance with law after adjusting recruitment from May 1, 1960 and to do so in accordance with the relevant quota or proportion rule prevalent at the relevant time and in the light of the observations made in the judgment. The Division Bench also directed:

In order to avoid any further delay and to put an end to the unfortunate position we issue a mandatory order directing the Government to prepare a seniority list as per the mandamus issued to it....

and this was to be prepared at any time before June 23, 1975 and the list was to be placed before the Court and the parties were at liberty to apply. Accordingly, the list was prepared and it was put up before the Court for approval and the Court did not pass any further orders regarding the seniority lisp so prepared. It may be pointed out that in Special Civil Application No. 1330 of 1974 and Special Civil Application No. 1915 of 1974 decided by a common judgment on March 4, 1975, the contest was between direct recruits and promotes in the cadre of Assistants. There was no question of seniority inter se of promotes from the cadre of clerks/typists to the cadre of Assistants, and it is only by virtue of the impugned rules of October 11, 1974 that the inter se seniority of promotes to the cadre of Assistants was to be fixed for the purpose of promotion to the cadre of Section Officers with reference to their seniority in the cadre of clerks/typists. As pointed out above, the seniority of clerks/typists on the basis of the cadre of the Secretariat as a whole was to be prefixed with effect from May 1, 1960 and on the basis of this seniority thus prefixed, in the lower cadre, inter se seniority amongst promotes to the cadre of Assistants was to be governed and this seniority was only for the limited purpose of promotions to the higher cadre of Section Officers from the cadre of Assistants.

6. It may be made clear that it is common ground before us that the basis of promotion from the cadre of clerks/typists has been seniority all along and the basis for promotion from the cadre of Assistants to the cadre of Section Officers (formerly Superintendents) is seniority-cum-merit.

7. It may be mentioned that so far as Special Civil Application No. 971 of 1973 is concerned, the problem there arises in a slightly different form. In that case, apart from the facts which are so far set out, the special facts of the case are that, on August 14, 1959 the Government of the Bilingual State of Bombay issued a resolution providing for promotions of members of the lower division in the Subordinate Secretariat Service with reference to upper division and it provided for a special competitive examination to be held. The lower division consisted of clerks/typists and the upper division consisted of Assistants. The resolution pointed out that according to the existing rules, recruitments to the post of Junior Assistant in the Secretariat Departments was made either nomination on the basis of the result of the competitive examination held by the Public Service Commission or by promotion from amongst the members of the lower division, the ratio of direct recruits to promotes being 3 : 1. It was observed by the Government that according to the ratio of promotions, members of the lower division had not been able to secure promotions to the upper division to an appreciable extent, although they had put in a fairly long service and this resulted in stagnation in the lower division to some extent. Government had examined the question very carefully and with a view to reducing stagnation in the lower division. It was decided to hold special competitive examinations on departmental basis for the members in the lower division for their promotion to the posts of Junior Assistants in the Secretariat Departments. After the results of the departmental examinations were known, recruitment of the upper division was to be made for a period of one year only by the direct method through the Public Service Commission. Promotion, according to the present rub of seniority-cum-merit and the departmental examination was to be made in the ratio of 2:1:1. In following this ratio the intention was that Vacancies of Junior Assistants in the Secretariat Departments should be filled for one year on the basis of one direct recruit to one by promotion according to seniority-cum-merit to one again by direct recruitment and 012 through this departmental competitive examination and the existing ratio of 3:1 (that is three direct recruits to one promote) was not to operate during this period of one year. The petitioners in Special Civil Application No. 971 of 1973 and several other parsons appeared for this special examination which was held in pursuance of the resolution of August 14, 1959 and they passed the examination successfully and would have been appointed as Junior Assistants if the scheme had continued or if the Bilingual State of Bombay had continued. At the time when the State of Gujarat came into existence with effect from May 1, 1960, they were still working as clerks/typists and thereafter they were promoted to the posts of Assistants, not as a result of promotions according to the rule of seniority-cum-merit, but by virtue of their success at the departmental competitive examination held in pursuance of this resolution of August 14 1959. Their seniority in the cadre of Assistants is sought to be affected by the resolution of October 11, 1974 and the rules of 31st August 1977.

8. Mr. J.R. Anabatic for the Respondents in these Special Civil Applications has contended that, without joining of persons affected or, in the alternative, without following the procedure of representative litigation under Order 1, Rule 8 of the Civil Procedure Code, the petitioners cannot be granted the relief which they are seeking in the present case, His contention is that without joining all the persons likely to be affected, either co nominee or in a representative capacity, no relief can be granted as their points of view will not be before the Court.

9. This preliminary objection can be very easily disposed of in the light of the decision of the Supreme Court in The General Manager, South Central Railway v. A.V.R. Sedate : (1974)ILLJ312SC In that case Arcadia J. speaking on behalf of the Supreme Court, observed in paragraph 20 at page 1759:.it is to be noted that the decision of the Railway Board impugned in the writ petition contain administrator rules of general application, regulating absorption in permanent departments, fixation of seniority, pay etc. of the employees of the erstwhile Grain-Shop departments. The respondents-petitioners are impeaching the validity of those policy decisions on the ground of their being volatile of Articles 14 and 16 of the Constitution. The proceedings are analogous to those in which the constitutionality of a statutory rule regulating seniority of Government servant is assailed. In such proceedings the necessary parties to be implied are those against whom the relief is sought, and in those absence no effective decision can be remedied by the Court. In the present case, the relief is claimed only against the Railway which has been imp leaded through its representative. No list or order fixing seniority of the petitioner vis-a-vis particular individuals, pursuant to the impugned decisions, is being challenged. The employees who were likely to be affected as a result of the readjustment of the petitioner's seniority in accordance with the principles laid down in the Board's decision of October 16, 1952, were, at the most, proper parties, and not necessary parties and their non-joiner could not be fatal to the writ petition.

Thus, this decision of the Supreme Court clearly lays down that where the principles of fixation of seniority is under challenge and not the actual seniority list as such and where the challenge is on the ground of alleged violation of Articles 14 and 16 of the Constitution and the relief which is sought is against the rule-making authority, the employees who are likely to be affected by the decision in the case are only proper parties and not necessary parties. Since these other employees are only proper parties, their non-joinder is not fatal to these writ petitions, The rule-making authority, namely, the Government of Gujarat, is joined as a party and the principle and the rules and the validity of those rules are under challenge. The seniority list fixed in accordance with those principles is being challenged only incidentally.

10. Before we go to the merits, it is necessary to point out that one of the circlers which is mentioned in Rule 5 of the rules of 1977 is the resolution dated January 2, 1976. By this resolution, provision was made for seniority list and seniority was fixed of promotee Assistants vis-a-vis directly recruited Assistants, and Clause 2 of this circular is in these terms:

The accompanying Seniority List of assistants is subject to the decisions in the judgments that may be delivered by the Gujarat High Court in respect of pending Special Civil Application No. 971/73 and 262/75 and some other individual claims.

As we have mentioned earlier, the seniority list which accompanied this resolution of January 2, 1976, was the final seniority list and the provisional seniority list was published on June 20, 1975 following the decision of the High Court in Special Civil Applications Nos. 1843 of 1974 and 1919 of 1974 decided on March 4, 1975.

11. Mr. Daru's challenge to the rules of October 11, 1974 and the rules of August 31, 1974 is on the following grounds. He first contends that since by Rule 5 of the 1977 statutory Rules, Government circular of January 2, 1976 is deemed to be part of the rules of 1977 and is to have force accordingly, Clause 2 of the circular of January 2, 1976 requires that the seniority list of Assistants which was based partly on October 11, 1974 resolution, is going to be subject to the decision in Special Civil Applications Nos. 971 of 1973 and 262 of 1975. Those two matters are being decided today by this common judgment and hence by operation of Rule 5 of the 1977 Rules and Clause 2 of the Circular of January, 2, 1976, referred to in Rule 5 of those Rules, the decision in these Special Civil Applications Nos. 971 of 1973 and 262 of 1975 will be the final decision and the Rules of 1977 must apply and have effect subject to the decision-in these two Special Civil Applications specifically referred to in that Clause 2.

12. The second ground of challenge of Mr. Daru is that, under the Rules of October 11, 1974 and the statutory Rules of 1976, irrelevant considerations have been introduced for the fixation of seniority of Assistants, His contention in this connection is that what counts for the purpose of promotion from the cadre of Assistants to the cadre of Section Officers-is experience as Assistants and not the length of experience as clerks.. Hence, the length of the period of officiation as an Assistant should be-the guiding rule and not the length of service as a clerk or typist. Hence, by introduction of irrelevant considerations, the fundamental rights of the petitioners under Articles 14 and 16 of the Constitution are violated, espe daily as the birth-mark as a clerk or typist is retained and carried forward even in the higher cadre of Assistants. In Special Civil Application No. 1073 of 1975, the challenge on the ground of constitutional validity is posed in these terms:

The petitioners submit that these rules taken as a whole are violative of the guarantees contained in Article 14 of the Constitution of India. The actual facts are that as stated earlier, there was no common cadre of assistants upto 1-10-1964. Promotion to the cadres of Junior Assistants and Senior Assistants then in existence used to be made departmentwise.... It will be seen that even when Government felt paucity of experienced junior Assistant for promotion as Senior Assistant, it categorically decided not to create common cadre of Junior Assistant of all Secretariat Departments. According to the rules and prevailing practice at that time, these petitioners' promotion as Junior Assistants and Senior Assistants were perfectly regular and legal. Petitioners were granted promotion and deem dated also as Senior Assistants and their pay was also raised on the basis of departmentalism seniority only. When the benefit of raised pay was withdrawn by Government and pay was reduced, petitioner had filed SCA 72/74 in the High Court. The Court had quashed the relevant orders withdrawing the benefits. Government has also cancelled those orders. The relevant communications are enclosed...Government has cancelled the orders but has not restored the petitioners' raised pay. The restoration of raised pay depends upon maintenance of departmentwise seniority and promotion of the petitioners. Therefore, so far as the cadres of Junior Assistants and Senior Assistants are concerned, those who entered that cadre earlier are normally treated as senior unless there are sorts special or cogent reasons for not doing so.... In this connection petitioners draw attention to column 3 of the aforesaid annexures in which their legal date of promotion is shown and column 4 of the aforesaid annexure which indicate their revised dates of legal promotion. This destroys the legal promotion of petitioners as senior Assistant and the actual pay which they have drawn and which they are entitled to draw after Government fixes their raised pay in pursuance of the orders contained in Government circular G.A.D. No. PCR/1073/6060/P dated 10-7-75. If the impugned seniority rules, 1977 are given retrospective effect from 1-5-1960, the petitioners' seniority which would be adversely affected would result into recovery of pay and allowances which they have drawn while officiating as senior assistants with effect from deemed dates of promotion as senior assistants given by the Government because under the impugned seniority rules, 1977, confiscate the benefit accrued to the petitioners by the aforesaid judgment in Special Civil Application No. 72/74. The petitioners are likely to be called upon to refund the aforesaid pay and allowances advancing the same reason as mentioned earlier for not restoring the raised pay that the petitioners have become juniors under the latest seniority rules of 1977 which have now been given statutory force with retrospective effect from 1-5-1960. The amount of recovery comes to several thousand rupees. Thus the impugned seniority rules of 1977 destroy the protection given to the petitioners by this High Court in the aforesaid judgment in Special Civil Application No. 72 of 1974. Thus what the petitioners got in pay and allowance under rules then in force and the aforesaid Judgment of the High Court, petitioners fear that the aforesaid seniority rules of 1977, would destroy their legitimate claim to pay and allowances already drawn and to be drawn as senior assistants on the basis of departmentwise seniority of the petitioners as clerks, as junior assistants and as senior assistants in General Administration Department. Thus Rule 3 of the 1977 rules appears to create a fiction and even though there was not in fact a common cadre of assistants from 1-5-1960, yet is says that a common cadre should be deemed to have existed from that date. Rule 4 then proceeds on the basis that here was a common cadre of Assistants. Clause (ii) of Rule 4 says that the seniority amongst the promotee Assistants inter se shall be fixed on the basis of their length of their length of service in the joint cadre of clerks and typists, for all departments of the Secretariat as a whole. This Clause is patently violative of Articles 14 and 16 of the Constitution because the seniority of the promotees assistants in directed to be fixed on the basis of the length of service in the lower cadre of clerks for all departments as a whole. The length of service in that alleged cadre cannot be a relevant or rational factor for determining the seniority in the higher cadre unless some promotion has been given in a mistaken manner or in fortuitous vacancy. Clause (ii) is based clearly on an irrelevant and extraneous consideration. The main purpose of fixing seniority being that of promotion, it is inconceivable that the length of experience in all alleged lower cadre can be treated as basis for promotion to the still higher cadre of Section Officer. For the purpose of promotion seniority is reflected because, it is the length of service of experience in that cadre that qualifies a person for the higher cadre post then other. By merely taking the length of service in the alleged lower cadre of clerk as the basis for seniority, what is sought to be done is that a person who has much larger experience in the cadre of assistants is treated as junior to the person who has lesser experience as assistant. Since the promotions were made departmentwise according to the departmental seniority from the cadre of clerks to the cadre of junior and senior assistants, in a large number of cases it has happened including the case of petitioners that they came to be promoted as Junior Assistants and Senior Assistants according to the seniority of clerks prevailing then, which was departmentwise and not on the basis of all the departments as a whole. By changing the entire basis of seniority in the post of Assistants, the rule in actual practice creates gross discrimination between Assistants and Assistants by introducing absolutely irrelevant and extraneous and irrational consideration for the purpose of fixing the seniority.

13. Clause (iv) is also bad because regular officiation mentioned in that Clause would not be considered on the basis of Clause (ii) which itself is bad. Clause (iv) being thus sympathetic with Clause (ii) it must also fail. His further ground of challenge to the rules of 1974 is that retrospective effect is sought to be given with affect from May 1, 1960, and he has contended that it is not open to the Government, while issuing administrative instructions or administrative rules, to give retrospective affect to their decisions.

14. In connection with administrative instructions not being allowed to have retrospective effect, the position in law is very clear. In S.B. Patwardhan v. State of Maharashtra : [1977]3SCR775 Chandrachud J., as he then was, speaking for the Supreme Court, has observed in paragraph 26 at page 2060 as follows:

It is common ground that except the Bombay Rules dated September 21, 1939 and the Gujarat Notification dated August 21, 1965 the rest of the rules are in the nature of executive instructions. The Rules of 1941, 1960, 1963, 1965 and 1970 were not framed by the State Government concerned in the exercise of constitutional or statutory power. 'The Rules of 1960 and 1970 were issued 'By order and in the name of the Governor', but that does not lend support to the construction faintly suggested on behalf of the direct recruits that the two sets of rules must be deemed to have been made under Article 309 of the Constitution.' All executive action of the Govt. of a State is required by Article 166 of the Constitution to be taken in the name of the Governor. The appeals have therefore to be disposed of on the basis that except for the Bombay rules dated September 21, 1939 and the Gujarat Notification dated August 21, 1965 the remaining rules, whether of recruitment or of seniority, are in the nature of executive instructions. These instructions, unlike rules regulating recruitment and conditions of service framed under the proviso to Article 309 of the Constitution or Section 241 (2)(b) of the Government of India Act, 1935, cannot have any retrospective effect.

The same statement of law is to be found in the judgment of the Division Bench of this Court consisting of A.D. Desai and T.U. Mehta, JJ. in Letters Patent Appeal No. 69 of 1973 decided on September 25, 1974. There, T.U. Mehta J. speaking for the Division Bench, has observed in paragraph 19 of the judgment:.if, in fact, it is found to be retrospective in its operation, we would have no hesitation in striking it down as illegal because it is obvious that it is not competent for the Government in its executive action to adversely affect the service conditions of the present incumbents retrospectively and in violation of the service rules framed under Article 309 of the Constitution. This position is too obvious to be discussed in further details for the simple reason that the service rules which are framed under Article 309 of the Constitution, have got a statutory effect and this statutory effect cannot be taken away by an executive action which comes into operation in a retrospective manner. In this connection, we may only make a reference to the decision given by the Supreme Court in N.C. Singhal v. Director General Armed Forces, Medical Services New Delhi : (1972)ILLJ249SC wherein it is held that condition of service, which Their Lordships of the Supreme Court considered in that case, was not liable to be altered or modified to the prejudice of the appellant of that case by subsequent administrative instruction which was given retrospective effect from 26th October, 1962.

Thus so far as the question of retrospective effect is concerned, it is obvious that if the rules of October 11, 1974 stood by themselves and without anything further in the light of the legal position which we have pointed out above, the rules would be bad in so far as effect was sought to be given to them with effect from 1, 1960 and they would have only prospectively. However, Mr. J.R. Nanavati for the State contends that by virtue of the statutory rules of August 31, 1977, orders regarding common seniority issued inter alia in Government resolution dated October 11, 1974, which is the impugned resolution in the present case, are deemed to be a part of the statutory rules and shall have force accordingly. Mr. Anabatic contends that this is an application of the principle of incorporation by reference and therefore the resolution of October 11, 1974 must be deemed to have been written out in extensor as part of the statutory Rules of 1977 and it derives retrospective effect not from its own force but by virtue of the statutory rules of 1977. The doctrine of incorporation by reference is now well-settled and the principles regarding incorporation by reference have been summed up by the Supreme Court in Botany Ors. Ltd. v. State of Orissa : [1975]2SCR138

This method of drafting which adopts incorporation by reference to another Act whatever may have been its historical justification in England, in this country does not exhibit an atavistic draftsmanship which would have adopted the method of providing its own definition. Where two Acts are complementary or interconnected, legislation by reference may be an easier method because a definition given in the one Act may be made to do as the definition in the other Act both of which being enacted by the same Legislature. At any rate, Lord Esher, M.R. dealing with legislation by incorporation, in In re Wood's Estate said (1886) 31 Ch D 607 at p. 615:

If a subsequent Act brings into itself by reference some of the Clauses of a former Act, the legal effect of that, as has often been held, is to write those sections into the new Act just as if they had been actually written in it with the pen, or printed in it, and, the moment you have those Clauses in the latter Act, you have no occasion to refer to the former Act at all.

The observations in Clarke v. Bradlaugh (1881) 8 QBD 63 are also to the effect. Brett, L.J., in that case has said at p. 69:.there is a rule of construction that, where a statute is incorporated by reference into a second statute, the repeal of the first statute by a third statute does not affect the second.

30. In Secretary of State for India in Council v. Hindusthan Co-operative Insurance Society Ltd. 58 Ind. App. 259 the Privy Council was considering a case where the incorporation affected in the statute, viz. the Calcutta Improvement Trust Act, 1911 referred to by Their Lordships as the 'Local Act' was in express terms and in the form illustrated by 54 and 55 Viet., Ch. 19. The 'Local Act' in dealing with the acquisition of land for the purposes designated by it, made provision for the acquisition under the Land Acquisition Act, and the provisions of the Land Acquisition Act were subjected to numerous modifications which were set out in the Schedule, so that in effect the 'Local Act' was held to be the enactment of a Special Law for the acquisition of land for the special purpose. It was in the context of these and several other provisions which pointed to the absorption of certain of the provisions of the Land Acquisition Act into the 'Local Act' with vital modifications that Privy Council observed at p, 266:

But Their Lordships think that there are other and perhaps more cogent objections to this contention of the Secretary of State, and Their Lordships are not prepared to hold that the sub-section in question which was not enacted till 1921, can be regarded as incorporated in the Local Act of 1911....

In this country it is accepted that where a statute is incorporated by reference into a second statute, the repeal of the first statute does not affect the second; see the cases collected in Craies on Statute T aw, 3rd edn. pp. 349, 350. This doctrine finds expression in a common-form section which regularly appears in the amending and repealing Acts which are passed from time to time in India. The independent existence of the two Acts is therefore recognised; despite the death of the parent Act, its offspring survives in the incorporating Act. Though no such saving Clause appears in the General Clauses Act, I heir Lordship think that the principle is as applicable in India as it is in this country. It seems to be no less logical to hold that were certain provisions from an existing Act have been incorporated into a subsequent Act, no addition to the former Act, which is not expressly made applicable to the subsequent Act, can be deemed to be incorporated in it, at all events if it is possible for the subsequent Act to function effectively without the addition.

This Court in The Collector of Customs, Madras v. Nathalal Sampalhu Chetty (1962) 3 S.C.R. 786 at pp. 850-833 considered the Privy Council decision in the Hindusthan Co-operative Insurance Society Ltd. 58 Ind. App. 259 and distinguished that case and held the principle in applicable to the facts of that case.

Thus, it is obvious that whatever the defect on the ground of retrospective effect sought to be given by the resolution of October 11, 1974 may be, by incorporation by reference that resolution in the statutory rules of 1977 by Rule 5, the resolution of October 11, 1974 must be considered as part and parcel of the statutory rules and must have force accordingly. It is obvious from what we have stated hereinabove that under the rules of 1977 which are framed for the purpose of fixation of the seniority of Assistants in the Secretariat Service of the Gujarat Government, seniority has to be fixed with retrospective effect from May 1, 1960, and inter se seniority of Assistants has to be fixed, so far as the promotees are concerned, on the basis of their length of service in the joint cadre of clerks/typists for all departments of the Secretariat as a whole. After the decision in B.S. Vadera v. Union of India : (1970)ILLJ499SC it is well-settled law that statutory rules framed in exercise of the powers conferred on the Governor under the proviso to Article 309 of the Constitution can have retrospective effect. In that case, Vaidialingam J. speaking for the Supreme Court observed in paragraph 24 at page 124 as follows:.in the absence of any Act of the appropriate Legislature, on the matter, in our opinion, the rules made by the President, or by such person as he may direct, are to have full effect, both prospectively and retrospectively. Apart from the limitations, pointed out above, there is none other, imposed by the proviso to Article 309, regarding the ambit of the operation of such rules. In other words, the rules, unless they can be impeached on grounds such as breach of Part III, or any other Constitutional provision, must be enforced, if made by the appropriate authority.

Thus, it is obvious that by virtue of Rule 5 by incorporation by reference of the resolution of October 11, 1974, retrospective effect right upto May 1, 1960 must be given tithe rules of October, 1974 and these rules cannot be said to be bad merely because they are retrospective in their operation so far as fixation of seniority is concerned. Of course, it would be open to the petitioners to challenge the validity of the rules of October 11, 1974 and also of the statutory rules on the ground of violation of Articles 14 and 16.

15. We will now take up Mr. Daru's contention that the rules of 1977, in Rule 5, specifically mention the Government circular of January 2, 1976 and by virtue of Clause 2 of that circular, seniority list of Assistants has to be subject to the decision that may be delivered in Special Civil Applications Nos. 971 of 1973 and 262 of 1975 and hence the challenge to the rules of October 11, 1974 is still open. In our opinion, in view of the retrospective effect to the resolution of October 11, 1974 given by Rule 5 of the 1977 rules by incorporation by reference, it is obvious that whatever we may say in our decision in Special Civil Applications Nos. 971 of 1973 and 262 of 1975 must be in the light of the rules of 1977 and the rules of October 11, 1974, both of which have force with effect from May 1, 1960. Therefore, in our opinion, the only challenge which can survive is the challenge on the ground of alleged violation of Articles 14 and 16 of the Constitution.

16. To meet the challenge on the ground of Articles 14 and 16, in the affidavit-in-reply, reasons for giving retroip active effect for the purpose of seniority in the common cadre of clerks/typists aid also reflecting that seniority in the common cadre of Assistants have thus been set out on behalf of the State. In the affidavit of H.B. Pandit, Under Secretary to Government of Gujarat, General Administration Department, being the affidavit dated May 22,1976, in paragraph 12 it has been mentioned:..the matter regarding inter se seniority between the promotee assistants and the directly recruited assistants was decided by the Gujarat High Court on 9-3-1972 in Special Civil Application No. 1330 of 1969 and again on 4-3-1975 in Special C.A. No. 1915/1974 and 1843/74, I say that according to this judgment the promotees who are affiliating as assistants in excess of the quota are to be treated as illegally appointed and that period will not count for seniority in relation to the quota from time to time. I say that the fact remains that the seniority of the promotee assistants and the directly recruited assistants is required to be refixed from 1-5-1960 according to the ratio of 3 : 1 provided in the Recruitment Rules. I therefore say that all the appointments which were available to the promotee assistants so far after 1-5-1960 would have to be treated as purely temporary and provisional including further promotions to the post of Senior Assistants before 1-10-1964. I say that the Government decision in the light of the High Court judgment of March 1972 has been taken in August 1974.

In paragraph 14 of the affidavit of H.B. Pandit in Special Civil Application No. 262 of 1975, it has been further stated:.in fact and reality the petitioners have challenged the Government order of October 1974 to have a common cadre of clerks and typists with effect from 1-5-60 instead of from 1-4-1973. I say that the effect of order of October 1974 is that there will be interchange of seniority position and rank between the clerks and typists. I say that it is exclusively with a view to give equal opportunity to clerks/typists of all the departments for promotion to the post of assistants or some reasonable, rational, plausible and conceivable and criteria and therefore the petitioner cannot legitimately and successfully make out by grievance against such a governmental action. I say that even otherwise the High Court judgment of March 1972 Tead with judgment of March 1975 required the Government to refix the seniority of promote assistants and directly recruited assistants with retrospective effect from 1-5-1960. I say that the Government order of October 1974 in pursuance of having a common cadre of clerks and typists requires readjustment of seniority between the clerks and typists themselves. I say that the purpose and object of going back on the decision regarding department wise cadre is explained hereunder.

I say that in Gujarat promotions to the posts of Superintendent and upwards are given on the basis of operation of the common cadre at all these levels. I say that even in respect of the promotions to the post of Assistants from the posts of clerks and typists element of common cadre was introduced only from 1-4-73. I say that the operation of such a common cadre from the later date resulted into a junior person getting earlier promotion in a department which expanded for various reasons, thus leaving no scope for promotion to the senior persons remaining in the un-expanding departments. I say that this position if allowed to be continued would lead to the result of leaving senior and deserving persons behind in respect of promotions to the further openings in the higher posts auto including the post of Assistant. I say that in order to remove this injustice and anomaly, the Government considered it necessary, fit and proper to constitute common cadre for clerks/typists in respect of promotions to the post of Assistants with effect from 1-5-60. I say that it was ensured that by virtue of the operation of common cadre from 1-5-1960 name of the clerks/typists who were promoted as assistants irrespective of their seniority, uniformity would be reverted as clerks/typists from the post of assistant but would continue to be so and as such in spite of the operation of the common cadre with effect from 1-5-1960.1 thus say that the reversions were duly protected. I say that with a view to giving equal opportunity to persons of the same group and belonging to the same class as such this decision of the Government only tends to afford equality of protection to the persons similarly situated and circumstanced in the matter of higher promotions. I say that the petitioners cannot legitimately make out any grievance against this decision of the Government since it does not entail any civil or evil consequences and at the most it may reduce or protract their chances of future promotion and nothing more than this. I say that the petitioners have no right to make a grievance against such a reduction in chance of promotion especially when the governmental action in this behalf is not irrational, unreasonable, arbitrary, capricious or ill-motivated but it seeks to met out justice and treat all persons of the same class fairly, justly and equitably.

Similarly, in the affidavit-in-reply in Special Civil Application No. 1973 of 1975, position has been thus explained in the affidavit of H.B. Pundit, being the affidavit dated April 6, 1976:

As for clerks and typists, both in the former Bombay State and in Gujarat State, there was a departmental cadre and for the purpose of promotion to the post of Assistant, there was a joint cadre of clerks and typists for each department. The Gujarat State started functioning only with 8 Secretariat departments and at present the number has risen to all departments. Persons who were working in 1960 are not working today in the same departments. This has resulted in a position that a clerk who was junior in one department becomes senior in another department, because of its recon-stitution as well as because of its rapid expansion, as a junior person in one department may have been promoted earlier as Assistant vis-a-vis his senior who may have continued as a clerk in another department because of the contingency referred to above. Another anomaly in this matter of promotion to the post of Assistant was also the result of slow expansion of certain departments and rapid expansion of other departments. This matter was being agitated from time to time and furring 1967-70, when Government took a decision to effect transfers of Assistants who were liable to be reverted from the posts of Assistants as clerks on the basis of departments cadre to other departments, where their juniors were working as Assistants. This matter was further agitated for implementation of regular common cadre. The popular Ministry in 1972 decided that there should be a common cadre of clerks for promotion to the post of Assistants and this should have prospective effect. The common cadre has come into force w.e.f. 1-4-73. The position has been further considered by G.A.D. in the context of implementing the High Court judgment for fixing the seniority of Assistants w-e-f 1-5-60. It was found that on account of departmental cadre, certain clerks and typists who had longer service in the lower division cadre were at a disadvantage in the seniority of Assistants vies a-vies other promotes. It was, therefore, represented on behalf of such persons to the last popular Ministry that there should be a common cadre of clerks and typists for the purpose of promotion to the posts of Assistant, with reference to the High Court judgment. With a view to mitigate the anomalous position created with departmental cadre in the Gujarat State, the common cadre of clerks and typists, which has come into force from 1-4-1973, should be given effect from 1 -5-60 for the purpose of relaxation of seniority of Assistants in pursuance of the High Court judgment subject to the following conditions:

The conditions are the same as are to be found in Clause 4 of the rules of October 11, 1974. The affidavit then further states:

There is already a common cadre of Assistants for promotion to the post of Section Officer. There is also a common cadre of Section Officers and Under Secretaries for promotion to the post of Under Secretary and Deputy Secretary respectively. The common cadre of clerks and typists is given effect from 1-5-60 instead of 1-4-1973 with a view to ensuring equal treatment. I say that the promote Assistants in the seniority list of assistants would find a place in the seniority list in accordance with their place in the common cadre of clerks and typists and their promotion to the cadre of assistants' post on the common cadre. I say that the effect of the common cadre is only re-adjustment in seniority and it would not result in the reversion of any assistant as a clerk or typist. I say that the main consideration of Government in giving retrospective effect to the common cadre of clerks and typists for promotion to the post of assistant was to rationalize and remedy as far as possible the disadvantage of uneven chances of promotion in a department cadre in various department of Sachivalaya.... I say that even though junior persons got promotions earlier, such promotions are now required to be regularised and rationalised by virtue of changing dates of promotions according to the seniority inter se as clerk. I say that this creation of common cadre has a very salutary and laudable object to achieve I say that the most vital and important aspect of introduction of the common cadre is firstly that it will not bring about reversion of any assistant as clerk secondly, it respects seniority inter se for promotion to next higher post. I, therefore, say that in effect and substance this adjustment would lead to adjustment of places amongst themselves in that a senior person who got promotion as an assistant late will, in spite of his later promotion would be senior vis-a-vis his junior persons who got promotions as assistants earlier. I say that even in the eye of law this action of the Government would lead to giving of equal opportunity and treatment to all persons similarly circumstanced and situated. I say that such an action does not and cannot result in any discrimination to anyone especially when the opportunity of promotion is rationalised for each and every one alike on some reasonable and rational criterion with effect from 1-5-1960. I say that any grievance sought to be made on the ground of having earned promotion earlier could be met with by stating to this Hon'ble Court that the intention of the Government is to give equal treatment and opportunity to all groups in the same class and being of the same genus.

Thus the defence of the Government is that the retrospective effect in the cadre of clerks and typists and seniority being relaxed with effect from the position prevailing as on 1-5-60 and thereafter was with a view to equalising chances of promotion to the cadre of Section Officers from the cadre of Assistants. Mr. Nanavati for the State, in our opinion has rightly emphasized the three conditions in the rules of October 11, 1974 set out in Clause 4. The conditions are:

1. No claim shall be entertained for refixation of pay or payment of arrears on that account;

2. There should be no claim for stepping up of the pay of Senior persons with reference to the pay of the junior in the revised seniority list of promotees:

3. The refixation of seniority of clerks/typists as Assistants should be valid only for the purpose of promotion to the posts of Section Officers.

These three conditions set out in Clause 4 of the rules of October 11, 1974 which are, by virtue of Rule 5 of the statutory Rules of 1977, part of the conditions for fixation of seniority as Assistants. The result of these three conditions which are now incorporated by reference in the rules of 1977 is that no Assistant is going to be reverted because of the statutory rules of 1977. Secondly, refixation of seniority a-nonget promotees inter se in the light of their seniority as clerks/typists in the common cadre which is to be fixed with effect from May 1, 1960 is for the limited purpose of promotion to the post of Section Officer and no other. It is, therefore, clear that the operation of the rules for fixation of seniority, operation of the seniority list, promotion to the post of Section Officer on the principle of seniority-cum-merit, is prospective only. No person who was already promoted as Section Officer prior to October 11, 1974 or even prior to August 31, 1977, can be reverted on the basis of refixation of seniority amongst promotees inter se in the light of the rules of October, 1974 and the statutory rules of 1977. The consequence is that there is neither retrospective operation nor any reversion nor any effect in the pay-scales amongst promotee Assistants inter se. The only thing which is affected by these rules is the chances and scope for promotion to the higher cadre of Section Officers. The challenge on the ground of alleged violation of Articles 14 and 16 must be rejected in the light of the decision of the Supreme Court in. The State of Jammu & Kashmir v. Triloki Nath Khosla : (1974)ILLJ121SC Chandrachud, J. as he then was speaking on behalf of himself, Ray C.I and Palekar J., has observed in paragraph 22 at page 8:

An argument which found favour with Mufti Babauddin J., one of the learned Judges of the Letters Patent Bench of the High Court, and which was repeated before us is that the 'retrospective' application of impugned rules is violative of Articles 14 and 16 of the Constitution. It is difficult to appreciate this argument and impossible to accept it. It is wrong to characterise the operation of a service rule as retrospective for the reason that it applies to existing employees. A rule which classifies such employees for promotional purposes undoubtedly operates on those who entered service before the framing of the rule but it operates in future, in the sense that it governs the future right of promotion of those who are already in service. The impugned rules do not recall a promotion already made or reduce a pay-scale already granted. They provide for a classification by prescribing a qualitative standard, the measure of that standard being educational attainment. Whether a classification founded on such a consideration suffers from a discriminatory vice is another matter which we will presently consider but surely, the rule cannot first be assumed to be retrospective and then struck down for the reason that it violates the guarantee of equal opportunity by extending its arms over the post. If rules governing conditions of service cannot ever operate to the prejudice of those who are already in service, the age of superannuation should hive remained immutable and scheme of compulsory retirement in public interest ought to have foundered on the rock of retroactivity. But such is not the implication of service rules nor is it their true description to say that because they affect existing employees they are retrospective. It is well settled that though employment under the Government like that under any other master may have a contractual origin, the Government servant acquires a 'status' on appointment to his office. As a result, his rights and obligations are liable to be determined under statutory or constitutional authority which, for its exercise, requires no reciprocal consent. The Government can alter the terms and conditions of its employees unilaterally and though in modern times consensus in matters relating to public service is often attempted to be achieved consent is not a precondition of the validity of rule of service, the contractual origin of the service notwithstanding.

Again, in paragraph 26, it was observed:

Classification is primarily for the legislature or for the statutory authority charged with the duty of framing the terms and conditions of service; and if, looked at from the stand point of the authority making it, the classification is found to rest on a reasonable basis, it has to be upheld.

In paragraph 39 at page 12, it was further observed:

The classification, according to the appellant, was made with a view to achieving administrative efficiency in the Engineering services. If this be the object, the classification is clearly correlated to it for higher educational qualifications are at least presumptive evidence of a higher mental equipment. This is not to suggest that administrative efficiency can be achieved only through the medium of those possessing comparatively higher educational qualifications but that is besides the point. What is relevant is that the object to be achieved here is not a mere pretence for an indiscriminate imposition of inequalities and the classification cannot be characterised as arbitrary or absurd. This is the farthest that judicial scrutiny can extend.

It is clear that applying the twin test for considering the alleged violation of Articles 14 and 16, we have to ask ourselves whether the classification for the purpose of fixation of seniority for the sole purpose of governing promotions from the cadre of Assistants to the cadre of Section Officers, can be said to be unreasonable or arbitrary, and secondly we have to ask ourselves whether the basis of the classification of all promotee Assistants of the Sachivalaya in one common class for the purpose of fixation of their seniority inter se with effect from May 1, 1960 for the limited purpose of promotion to the cadre of Section Officers, has any nexus with the object sought to be achieved by it? The object sought to be achieved is efficiency in administrative service. Mr. Daru is right when he contends that for the purpose of promotion to the Higher cadre, what should Count is the experience in the immediate lower cadre and therefore, ordinarily, it would be the length of service in the cadre of Assistants which should be considered for fixation of seniority inter se amongst promotes for the purpose of promotion to the higher cadre of Section Officers. However, as pointed out by the affidavit-in-reply from which we have quoted in extensor above, the safeguards were provided in Clause 4 of the rules of October 11, 1974 and in order to see that no fortuitous circumstances of any particular departmental benefited, any promote Assistant unduly, the seniority amongst promotes inter-se was prefixed on the basis of seniority in the common cadre of clerks/typists only for the limited purpose of promotion to the cadre of Section Officers, so that the fortuitous circumstance of any one department may not give any advantage to some over other clerks or typists who fail to secure their promotions to the cadre of Assistants merely because of the peculiar circumstances of their own department. Thus, the object of these rules seems to be to equalize the chances of promotions to the cadre of Section Officers, so as not to give any undue advantage to persons who come up by promotions from the cadre of Clerks/typists by the fortuitous circumstance of their own respective department. Moreover, no body is going to be reverted, no body is going to get better pay-scales so far as the cadre of Assistants is concerned. The only thing that happens is that promotions hereafter to be made, that is to be made after October 11, 1974 from the cadre of Assistants to the cadre of Section Oscars will be governed by this seniority list.

17. The object of administrative efficiency can be attained if there is no discontent amongst persons similarly situated, namely, in the cadre of clerks and typists, or those who were working in the cadre of clerks and typists though in different departments. One may or may not agree with the principle of having a common cadre and one may or may not agree with the conclusion of the Government that having a common cadre of clerks and typists and again one common cadre of Assistants is the best way to secure administrative efficiency. That decision must be left to the Government itself, and it is not the function of the Court to pronounce upon the effectiveness of the decision of the Government in attaining the goal of administrative efficiency. However, once the reasons of the Government for having a common cadre of clerks and typists with effect from May 1, 1960 and refixation of their seniority in that cadre and the reflection of seniority in the cadet of Assistants and amongst promotes inter se are found to be reasonable there is a rational basis for that classification that is, for the new classification made by Government in the rules of October 11, 1974 and the statutory rules of 1977 and the object of equalizing the chances of promotion to the cadre of Section Officers is properly achieved by these rules.

18. The classification is reasonable and cannot be said to be arbitrary and the basis of the classification has a direct nexus with the object sought to be achieved. Hence, the twin tests are met so far as the allegation of violation of Articles 14 and 16 is concerned and therefore these rules must be applied. It is true that these rules are for the purpose of fixation of seniority in the cadre of Assistants. The rules of 1977 specifically deal with only the question of fixation of seniority in the cadre of Assistants in the Sachivalaya and merely because the hopes and aspirations of those promotee Assistants who rose to the post of Assistants earlier than the clerks and typists in the other departments, will not be met, it cannot be said that the rules of 1974 or the statutory rules of 1977 violate Articles 14 and 16. The challenge on the ground of Articles 14 and 16 must therefore fail.

19. However, so far as the petitioners in Special Civil Application No. 971 of 1973 are concerned, the position is altogether different. Though these persons were promoted from the cadre of clerks-typists to the cadre of Assistants, they were not promoted on the basis of seniority only. They were so promoted by virtue of the fact that, in the special competitive examination held department-wise, they succeeded and because of proportion of 2 : 1 : 1 fixed by the rules of August 14, 1959 for a period of one year only, these petitioners and others similarly situated like them were selected for promotion to the post of Assistants. Thus, qua them, the principle of promissory estoppel would certainly operate. The Government of the State of Bilingual Bombay and thereafter the Government of the State of Gujarat which were bound by what the Government of Bombay had done, held out promises to these petitioners and other persons who successfully passed the special departmental examination that they would be promoted to the cadre of Assistants out of turn so far as their seniority of clerks/typists was concerned, because of their success in the special examination held in pursuance of the rules of August 14, 1959. The Government would, therefore, be estopped from considering the cases of such persons who passed the special departmental examination as on par with the other promotees from the cadre of clerks/typists to the cadre of Junior Assistants (now Assistants). Under these circumstances it is clear that, qua, the persons who passed the special departmental examination held in pursuance of the rules of August 14, 1959, the seniority in the cadre of Assistants, even if fixed with retrospective effect from May 1, 1960, can only be on the basis of continuous officiation in the cadre of Assistants and not on the basis of their seniority in the cadre of clerks/typists. So far as Special Civil Application No. 971 of 1973 is concerned, we direct the Government that so far as the petitioners in this Special Civil Application and all other persons who were promoted to the cadre of Assistants by virtue of their success in the special departmental examination which was held only once in pursuance of the resolution of August 14, 1959, are concerned, their seniority will be fixed, not with reference to their seniority in the cadre of clerks/typists which is to be now arranged with retrospective effect from May 1, 1960, but on the basis of continuous officiation in the cadre of Assistants, either as Junior Assistants or as Senior Assistants or as Assistants. But, this direction will only affect the limited group of persons who were promoted as Assistants by virtue of their performance in the said special examination. In this connection, we may reiterate that, so far as the seniority list of January 2, 1976 is concerned, which is the final seniority list of Assistants, fixed in the light of the decision of the High Court in Special Civil Applications Nos. 1843 of 1974 and 1915 of 1975, dated March 4, 1975 and in the light of the resolution of October 11, 1974, that seniority list is to be have effect subject to the decision of the High Court in Special Civil Application No. 971 of 1973. By virtue of the direction which we are now giving in Special Civil Application No. 971 of 1973, that final seniority list will have to be re-adjusted so as not to affect all persons who were promoted as Assistants, not by virtue of their seniority in the cadre of clerks/typists but by virtue of their success in the said Special examination.

20. As regards the rest of the petitions their challenge to the rules of October 11, 1974 and the statutory rules of August 31, 1977, fails, but it must be pointed out that refixation of seniority of clerks/typists as Assistants and their fixation of seniority inter se of the promote Assistants inter se is only for the limited purpose of promotion to the post of Section Officers. This refixation of seniority is not to have any other effect for any other purposes whatsoever. To clarify the position and to leave no doubt, we direct the Government that, in this new seniority list which will have to be issued in the light of the directions given as regards Special Civil Application No. 971 of 1973 set out hereinabove, Government should clearly and unmistakably specify that the seniority list of Assistants in so far as it affects the seniority of promotes inter se is for the limited purpose of promotions from the cadre of Assistants to the cadre of Section Officers and for no other purpose. This specific clarification must be made to obviate all misunderstanding and possible miss-use of that seniority list in future. We also direct the Government in accordance with what has been stated in Clause 4 of the rules of 1974 that no person shall be reverted from the post of Section Officer, no person who was promoted prior to October 11, 1974 shall be reverted from the post of Section Officer to the post of Assistant, merely because of the refixation of seniority amongst promotes inter se under the rules of October 11, 1974 and the statutory rules of August 31, 1977. We also direct the Government not to allow the pay-scales or the pay of any promote Assistant to be affected by the refixation of seniority under the rules of October 11, 1974 and the statutory rules of August 31, 1977. Under these circumstances, rule in Special Civil Application No. 971 of 1973 is made absolute. The Government will pay the costs of the petitioners in this Special Civil Application because the Government was entirely in the wrong in treating the petitioners in this Special Civil Application as persons who were promoted from the cadre of clerks/typists merely by way of, promotion based on seniority.

21. As regards the remaining petitions, we issue the directions set out hereinabove and, barring those directions, no other directions are required to be issued. Substantially the challenges to the validity of the impugned rules fail and therefore, subject to the directions given above, these remaining Special Civil Applications are dismissed and the rule in each of them is made absolute only to the limited extent indicated above. There will be no order as to costs in those remaining petitions. At the time when Special Civil Application No. 971 of 1973 was admitted, an application for interim relief was made. It was stated on behalf of the State of Gujarat that the State assured to restore all benefits to the petitioners in the event of their success in this petition and that the State assured that it would abide by the final orders of the Court in this connection. In view of that assurance, the State of Gujarat now directed to restore all benefits to the petitioners and persons who passed the special departmental examination held in pursuance of the resolution of August 1959 and final orders in their case will have to be passed in the light of the present judgment. No order on the Civil Application.


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