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1994 DIGILAW 59 (GUJ)

M. v. PATHAN VS STATE

1994-02-24

N.J.PANDYA

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N. J. PANDYA, J. ( 1 ) IN both these matters identical question is involved. The petitioners in both happen to be Assistants in the Secretariat Service of the State of Gujarat. The State came into existence from 1-5-1960. This particular post has a long history going back to the State of Bombay of which some of the territories of the State of Gujarat was a part. Before the State of Gujarat was formed as a result of the State Reorganisation Act 1956 there had come into existence what is popularly known as bigger Bilingual Bombay. The areas that came to be merged in the year 1956 in the State of Gujarat were themselves having legal entity of a State such as State of Saurashtra as a part having B status and the area of Kutch having status of C State. By the time the State of Gujarat came to be formed because of these various events there were lot many people who had joined the Secretarial service from Kutch as well as Saurashtra area and on formation a considerable portion of those who were at Bombay had decided to come over to Gujarat and therefore there was lot of shuffling and exercise on a large scale to merge different people into aforesaid cadre at different level. This naturally gave rise to the vexed question of seniority. As if the aforesaid complexity was not enough the post of Assistance originally was sub-divided into two-junior Assistants and Senior Assistants which came to be merged and turned into a single cadre of Assistants. ( 2 ) FOR our purpose this much material about the background is quite enough. At this stage the position of the cadre may be looked at. It is formed from two sources-one by way of promotion from Clerk-typists and others and second by way of direct recuitment. Right from the beginning entry into this cadre is regulated by providing for quota for these two sources. Naturally the State Government may have fluctuated the ratio of the quota between the direct recruits and promotes at different level during the passage of time. In other words the ratio would be fluctuating. However the effect of quota system and its impact on the seniority is by now well established. Naturally the State Government may have fluctuated the ratio of the quota between the direct recruits and promotes at different level during the passage of time. In other words the ratio would be fluctuating. However the effect of quota system and its impact on the seniority is by now well established. The quota is required to be strictly adhered to and the placement in the cadre is required to be rotated both while promoting or recruiting and this will have a direct bearing on the seniority list. ( 3 ) FOR the post of Assistants there are Recruitment Rules of the year 1964 and they came to be amended in the year 1974 for the first time followed by another amendment in the year 1977. These Rules shall hereinafter be referred to as Recruitment Rules. The Rule 1 of the Recruitment Rules provides for quota. The 1974 amendment was an attempt to answer the felt need of the cadre as by way of promotion disproportionately large number had entered into the cadre and conflict of fixation of seniority between the direct recruits and the promotees had arisen. So far as the petitioners who are the direct recruits are concerned they are challenging the fixation of seniority of the promotees who are the Clerks. The case of the Typists Stenographers etc. is not required to be considered in the instant case. Thus for all intents and purposes the amendment of the year 1974 as brought in at the relevant time would continue to operate though the amendment was made to take care of the dispute pertaining to Clerks Typists etc. The case of the Typists Stenographers etc. is not required to be considered in the instant case. Thus for all intents and purposes the amendment of the year 1974 as brought in at the relevant time would continue to operate though the amendment was made to take care of the dispute pertaining to Clerks Typists etc. Inspite of that it will be proper to reproduce the said amended Rule 6 as it stood after the amendment in 1977 Rule 6 : Notwithstanding anything contained in Rule (1) persons appointed to the posts of an Assistant by promotion under clause (b) of Rule (1) in excess of the number upto which they would ordinarily have been entitled to be appointed by promotion under the proviso to the said clause (b) shall not be reverted to the lower posts merely by reason of their appointment being in excess of such number : (i) If such persons have completed two years continuous service as Assistants on or before 1st April 1974 or (ii) in a case where clause (i) does not apply if such persons being recruited as clerks were declared as senior to the persons : (a) who were promoted as Assistants from amongst the typists in the joint cadre of clerks typists as a result of fixation of their seniority with reference to the date of their appointments on supernumerary posts or the date of their deputation for training in pursuance of the Judgment of the High Court of Gujarat in Special Civil Application no. 1706 of 1973 and (b) to whom clause (i) is applicable and the appointment of such persons as Assistant shall continue to remain in force subject however to the condition that they shall be junior to all persons recruited to the posts of an Assistant by direct selection under clause (a) of Rule (1) on or after 1st April 1972 but before 1st April 1975 As can be seen from the aforesaid Rule 6 two provisions were directly made- (1) that those who are promoted in excess of quota shall not be reverted to the lower posts merely by reasons of appointment being in excess of such number and (2) that they shall be junior to all persons recruited to the posts of Assistant by direct selection under cl. (a) of Rule 1 on or after 1st April 1972 but before 1st April 1975 The petitioners happen to be the persons directly recruited after 1st April 1975 The conflict therefore is clear so far as they are concerned. The main reason for the conflict is that the entire block of promotees numbering more than 200 will rank above them as per the said provision of clause (b ). ( 4 ) ORIGINAL Rule 6 was a subject matter of challenge in Special Civil Application No 2146 of 1976 and as the said Rule came to be amended on 9 November 1977 while dealing with the said Special Civil Application the learned Judges of the Division Bench had dealt with the amended Rule also. The challenge to the Rule in the said Special Civil Application no. 2146 of 1976 filed by Mr. M. H. Vankar and others was to the effect that it be declared ultra vires. Hereinafter the said Special Civil Application No. 2146 of 1976 shall be referred to as Vankars case. ( 5 ) THEIR attempt to getting it declared failed as set out in detail by the learned Judges in the said Vankars case. The judgment is delivered by Justice S. H. Sheth speaking for himself and his brother Judge Shri G. T. Nanavati on 25/26-9-1980. While considering the challenge of vires they had also considered the effect of Rule 6. The learned Judges have in clear terms held more than once that the moment there is a Rule of quota it will have a direct linkage with the question of seniority. ( 6 ) IN that background not only they have answered the challenge in the negative but have clearly indicated that seniority itself will be fixed on the basis of Rule 6 read with Rule 1 of Recruitment Rules. ( 7 ) HAD the sititation remained as it is by the time the judgment came to be delivered. In Vankars case probably fresh long round of litigations would not have started. Like these two present petitions I had an occasion to deal with Special Civil Applications No. 5659 of 1982 2766 of 1981 filed by direct recruits and Special Civil Application No. 1833 of 1983 filed by the promotees. These three matters I have disposed of by a separate common judgment. Like these two present petitions I had an occasion to deal with Special Civil Applications No. 5659 of 1982 2766 of 1981 filed by direct recruits and Special Civil Application No. 1833 of 1983 filed by the promotees. These three matters I have disposed of by a separate common judgment. The reason for fresh round of litigation is that in the year 1977 the State of Gujarat finally came out with Seniority Rules. These Rules are annexed to the Special Civil Application No. 2220 of 1985 at page 39 as annexure B. There is a fairly long preamble to the Seniority Rules dated 31st August 1977 It refers to the long history of the said cadre of Assistants as also to the fact that for quite some time different Departments of the State of Gujarat in its Secretariat were maintaining their own seniority lists of Assistants and were giving promotion also on the basis of that seniority subject of course to different requirements as to eligibility etc. of the promotional posts. The seniority lists of all the Departments were scrapped and one uniform secretariat service of Assistants was brought about and seniority of Assistants was to be fixed according to said seniority rules on and after 31st of August 1977 As the entire list was to be reshuffled of course it was to have effect from 1st of May 1960 It has also taken care of the merger of cadre of Senior Assistants and Junior Assistants into one single cadre which came about from 1st October 1974 ( 8 ) AT this stage it may be stated that there are several litigations some of which are referred to in the said Rule as also in several other judgments of this Court and the matter having been carried to the Supreme Court also in some of the cases. In most of the litigations the petitioners were direct recruits and in almost all cases they had succeeded so far as the reshuffling of seniority was concerned. This continued to be the position till the Recruitment Rules came to be amended by Rule 6 and the Seniority Rules also came to be framed in the year 1977. Both these Rules are under Article 309 of the Constitution of India. This continued to be the position till the Recruitment Rules came to be amended by Rule 6 and the Seniority Rules also came to be framed in the year 1977. Both these Rules are under Article 309 of the Constitution of India. ( 9 ) SO far as the Recruitment Rules more particularly insertion of Rule 6 by amendment is concerned the validity is upheld in Vankars case (Supra ). In the year 1977 the Seniority Rules were subject matter of challenge and it is the Supreme Court that has declared the Seniority Rule to be valid. This it did in Civil Appeal No. 712 of 1980 disposed of on 27th October 1987 The appeal was filed by K. S. Vora and Ors. against the decision of this Court. While dismissing the writ petition this Court had in clear terms held that the object of the Rules 1977 (Seniority Rules) was to equalise the chances of promotions to the selection cadre and since the Rules took care of the promotee Officers by ensuring non-reversion the Rules were indeed not retrospective. While disposing of the appeal the learned Judges-Shri Rangnath Mishra and Shri S. Ranganathan agreed with the High Court and turned down the challenge to the Seniority Rule. While turning down the appeal the learned Judges have categorically held that promulgation of the Rule was a historical necessity and the peculiar situation that arose out of Governments decision to create a common cadre with 4 grades in the entire Secretariat. ( 10 ) INSPITE of the aforesaid judicial pronouncements an attempt is made in these two petitions by the learned Advocate Shri Patel appearing for the petitioners to pose a challenge to Rule 6 of the Recruitment Rules. According to him this Rule is violative of Article 14 of the Constitution of India. According to him this rule enables the State Government to favourably treat the promotees who were far in excess of quota and to the extent to which it protects their promotion and prohibits reversion there is no problem. But the moment it accords them seniority also arbitrary favouritism is apparent and hence it is violative of Article 14 of the Constitution of India. In my opinion there is no substance in this submission. But the moment it accords them seniority also arbitrary favouritism is apparent and hence it is violative of Article 14 of the Constitution of India. In my opinion there is no substance in this submission. The reason is that they have been in the cadre of Assistants prior to the date of the entry of the petitioners who are direct recruits. As has been held by this Court as well as by the Supreme Court in Voras case (Supra) the common running rule for fixation of seniority is continuous officiation subject to the rule of quota. In Vankars case this rule of quota has been considered and with regard to Rule 6 it has been categorically held that it is an exception to the Recruitment Rule 1 where clause (A) provides for direct recruits and clause (B) provides for promotion and thereafter to fix quota. ( 11 ) ONCE the Seniority Rules are held to be valid to operate right from 1-5-1960 for each year the State Government will have to see the position of number of direct recruits and promotees and fix their seniority on the basis of continuous officiation at the same time strictly adhering to the quota. It varies from 3 to 1 i. e. 3 direct recruits to 1 promotee and I direct recurit to 3 promotees with variations in between in different permutation and combination. The petitioners have admittedly come into the service as direct recruits after 1st April 1975 Obviously therefore they are not similarly situated as the promotees governed by Rule 6 are. There is therefore no violation of Article 14 of the Constitution of India. ( 12 ) L. A. Mr. Patel had invoked the principle of implied repeal and for that purpose had cited two decisions- AIR 1981 SC 2022 and AIR 1985 SC 1729 . ( 13 ) SO far as the 1981 Supreme Court decision is concerned particularly the observations made in Head-note C and paragraphs 3 and 4 of the judgment it will not help the petitioners at all. There it was observed that by the very language of the concerned Rule the position prevalent prior to it could not have continued and therefore the doctrine of implied repeal was applied. The same is the situation with 1985 Supreme Court decision. There it was observed that by the very language of the concerned Rule the position prevalent prior to it could not have continued and therefore the doctrine of implied repeal was applied. The same is the situation with 1985 Supreme Court decision. As stated therein unless it is shown that there is total repugnancy between the two and they cannot co-exist at all the doctrine of implied repeal will not apply. That is not the position here. There is no question of partial repeal as referred in AIR 1986 SC 1043 . ( 14 ) IN order to appreciate the aforesaid submission a reference will have to be made to the Seniority Rules. They are in supersession of all the previous orders regarding fixation of seniority as stated in the penultimate paragraph of the preamble of the Rule at page 39a of Special C. A. No. 2220 of 1985. If by this is meant that Rule 6 which was brought into being in 1974 is also superseded that is clearly wrong. What is superseded is only an order and not a rule. ( 15 ) IN Rule 6 of the Seniority Rules it has been laid down that seniority assigned to certain Government servants by different departments of the Secretariat after 1st May 1960 shall not invest any right for its protection. An attempt was made to show that Rule 6 if read as suggested by the respondents would be protecting this very right of seniority right from 1974 and therefore it stands repealed. Obviously while making this submission the factual position of the entire service is completely lost sight of. As mentioned earlier the cadre of Assistants was sub-divided into two-namely Juniors and seniors and each Department of the Secretariat was missing its separate seniority list. Rule 6 is expressly brought in to take care of this situation. ( 16 ) L. A. Mr. Patel had thereafter urged that the Seniority Rules being specially meant for that they should be treated as special rule and Rule 6 should give way to it it being a general Rule. For this purpose he has relied on AIR 1979 SC 1098 This submission also cannot be accepted. Both of them are rules meant for taking care of respectively seniority and recruitment. For this purpose he has relied on AIR 1979 SC 1098 This submission also cannot be accepted. Both of them are rules meant for taking care of respectively seniority and recruitment. However in the Recruitment Rules itself when there is a provision for direct recruitment as also for quota but for which the petitioners would not have entered the service at all while fixing the seniority i. e. operating the Seniority Rule obviously the effect of quota will have to be given as stated in Vankars case by the learned Judges of this Court. This portion of the Recruitment Rules is directly linked with the question of fixation of seniority now being dealt with by the Seniority Rule 1977. No doubt Mr. Patel is right in submitting that in Vankars case the seniority Rule of 1977 is not discussed at all. That was not necessary because challenge was to Rule 6 of the Recruitment Rules. Confining themselves to the question as stated above the learned Judges have answered the same in the aforesaid manner. Inspite of that when Vankars case is read with said Voras case decided by the Supreme Court in Appeal and effect is given to both in my opinion the only result will be failure of the petitions. ( 17 ) THERE is no repugnancy nor is there any inconsistency. Without any attempt whatsoever the Seniority Rules on the one hand and the Recruitment Rules on the other can be harmoniously read acted upon and implemented. If as a result the promotees are getting seniority enblock that would no doubt be a very unusual thing but precisely to take care of this incidental situation Rule 6 was brought about in the Recruitment Rules and therefore in my opinion there cannot be any quarrel with regard to it. ( 18 ) THE net result therefore is that both the petitions fail. They are dismissed. Rule is discharged. No orders as to costs. Petition Dismissed. .