RAMCHANDRA SHANKAR DEODHAR & ORS. versus THE STATE OF MAHARASHTRA & ORS.

RAMCHANDRA SHANKAR DEODHAR & ORS.

THE STATE OF MAHARASHTRA & ORS.

November, 12, 1973

[A. N. RAY, CJ., D. G. PALEKAR, Y. V. CHANDRACHUD, P. N. BHAGWATi AND V. R. KRISHNA !YER, JJ.]

Co11stitu1ion of India, 1950, An. HCC£'SS!lf)' r-artt'es.

32.-Laches, alternative remedy nnd

States .Rtor1:a11isatinn Act. t 956-Slale of Bombas_;_Rule.f for _ promolion fro111 dh·isio11al cadre of Man1latdars to State Cadre of Deputy Collectors·-1\'01 1nad~ ri11 S1ate·wide basis-Vtilidit).

The petitioners ·were Tahsildars in the quondam state of Hyderabad. After the new state of Bombay was constituted with territories drawn fron1 varicu, existing States including Hyderabad, under the States Rcorp.nisatJon Act, 1956, equation of posts and determination of inter se seniority was done by the .,-\!located Government Servants' (Absorption, Seniority, Pay and Allowance) Rules, 1957. Under these rules ( 1957-Rules) the Governn1ent of Bombav dec-lared that lh.: posts of Mamlatdar in the former State of Bombay shall be Jcen1ed to be equivalent to the posts of Tahsildars from the former State of Hyderabad, and the posts of Deputy Collector in the former State of 'Bombay ~hall be deemed to be equivalent to the posts of Deputy Collector allocated from the forn1er State of Hyderabad. The recruitment to the posts of Deputy Collector was provided for by Rules of 30th July, 1959, (1959-Rules) accord-ing to \\ihich v.-:cancies to the posts of Deputy Collector were to be filled from three sources : 50% by nomination on the basis of the result of competitive examination; 25% by directly re9ruited Mamlatdars who have put in at least ·7 yearci' service including the period spent on probation and the remaining 25% bv Mamlatdars promoted from lhe lower ranks in Lhe revenue departmc11ts. The reservation. of 25% in favour of directly recruited Mamlatdars waci made by the second proviso to rule (1) of the Rules. On 7th April, 1961 the Government laid ·down the principles for regulating the preparation and revi-sion of select list of Mamlatdars/Tahsildars fit to b: appointed as Deputy Collectors in posts to· be filled by promotion. The procedure provided that Review Con1n1ittee should in July-August each year review the claims of all :\famh:ld<!rs for promotion to the posts of Deputy Collector and should draw up select liSt for each division of those who arc considered by the Com-mittee as fit for promotion. When vacancy arose in the oosts of Dep11tv Coliec~or in division the .Mamlatdar whose name was highest in the divi-c:ional select list was promoted as officiating Deputy Collector in the var.ant post. Th;:: name of such Mamlatdars though. so promoted, continued in the divi~ionnl select list until he was confirmed in the cadre of Deputy Collectors or retired from service. There was l)eriodical review of the working of the officiating ckpnty coBectors and on such review the rank in the divisional select J!c;t_ was adiu<.tcr.I so as to reflect the assessment of the relative merits of the officiatin,g deputy collectors. The promotions a<J officiating deputy collectors were thus made for each division separately on the basis of its divisional select list in which the rankin.2 changed periodically as n:sult of sevicw and assel'l<>.-ment. Then. deemed dates of continuous officiation were given to the offi-ciating dcputv collectors from each division with view to ~nsure that their inter -~e ranking- in the divisional select list was not affected bv the fact that nn C'lffi:ccr k"iwer in rank in the divisional select list miiz:ht have been officiating :i" Deputy Collector for longer period than another in higher tank. On the basis of thie deemed dates of continuou~ officiation given to the Officiating Deouty Collector in each division combined statewise seniority list of cffi-ciatin_'! D<·puty Collectors was nrepared and confirmation in th~ cadre of Denul'.' Collectors were made in acc0rdance with the seniority in such com-tiinE'd s!ritewi<.:e seniority list. This procedure did not have the warrant of any leg:i~l:iliv~ rules or administrative''orders. It waci in accordance with this pro-cedu~e 1hat the petitioners were promoted as officiating Deputy Collectors but

· R. S. DEODHAR V. MAHARAsHTRA 217

s~1me of the aIIocated .Afamlatdars/Tahsildars in other divisions l\t·ho were junior to the peritioflers became officiating Deputy Collectors earlier than the peti-tioners and were consequently entitled to be confirmed in the cadre of Deputy Collectors in preference to the petitioners. The P.Ctitioners filed writ peti-tion in this Court, challenging the procedure for promotion,

IIELD: ·The second proviso to ruie (1) of the 1959-Rules is void as being ·violative of Art. 16 of the Constitution. The procedure for promotion to the cadre of Deputy Collectors followed by the State Governmenfis also invalid on the ground that it denies -equality of opportunity of promotion and is there-fore bit by Art 16 of the Constitution, and hence the Government resolution dated 7th April 1961 must be quashed. The State Government should re-adjust the promotions as officiating Deputy Collectors as also the confirmation in the· cadre of Deputy Collectors and the readjustment ~hould be made with .retrospective effect and the petitioners ·should be given the benefit of seniority, pay and other allowances from the respective dates on which they would have been promoted hact the promotions been made on the correct basis. f238E-Gl

• ~ [.. ]

. ( 1.) The petitioners were not guilty of any laches or delay in filing the petition. r226Fl

(a) l'J1e rule that the Court may not inquire into belated and stale claims is n,Jt rule of law," but rule of practice based on exercise of sound judicial discretion depending on the facts of each case. In the present case, in January 1961, the petitioners· were informed that the rules of recruitment to the posts of Deputy Collector in the reorganised State of Bombay had· not yet been unified, that the petitioners continued to be governed by the rules of the ex-Hyden.bad State and that the 1959-Rules did not apply to. them. It was only -\\hen the Bombay High. Court decided Kapoor's case on 23rd-~farch 1968, that the petitioners came to know that it was. the case of the State Govemment \\-hich v:as accepted by the High Court. that the 1959-Rules were the Ul!ificj rules of recruitment to the posts of Deputy Collector applicable throughout the reorganised State of Born.bay .. The petitioners thereafter did not lose any time in filing the present petition. [226F-G...; 227A-CI ·

lb) h!o1eover, what is challenged is the validity of the orocednre for maki·ng 'promotiofls to the posts of Deputy Collector and 'ince this· orocedure is still being foU0\1.-'ed by the State Government it is desirable that its constitu-tionality should be adjudged when the question has come up before the Court. f227C-DJ ·

f227C-DJ · (c) In the present case all promotiqns ' . that have been made by State Gov-. ernmt:nt are pH>Visional and the position has not been ~rystallisecl Even if the petitions were a11owed and the reliefs claimed by the petitioner were granted. to therii:, it would not result in the reversion of aily Deputy COllector or offi-ciating Deputy Collector ·to the position of Mamlatdar/Tahsildar. The only effect woul.d be merely to disturb their inter se seniority as officiating deputy collectors or as deputy coUectorS. Hence there is no question of rights, which have accrued to others by reason of the delay in filing the petition, .being ~islurbed. f227G-228BJ ·

(d) The claim of enforcement of the fundamental right or equal opportu-nity under Art_ 16 is itself right guaranteed under Art., 32 and this Court, i.vhich has been assigiJ.~d the role of .sentinel on· the qui vive for protection of fundamental rights, cannot allow itself to be persuaded to refuse relief !!ofelv on the ground of Jaches. delay or the like. [228B-CJ

Tilockchand Aforichand v. H. B. Munshi, [1969] 2 S.C.R. 824, referred

(2) The petitioners could not be said to have any adequate "alternative legal remedy. [228F-OJ

(a) The petitioners could not have applied for revieW of the judgment of the Bombay High Court in Kapoor's case. They were not persons directly or immediately affected by the judgment _and it could not be said that they were . necessary parties to the petition who should have been heard before the judg-· 111ent was iiven. f228D-E]

(1974) 2 S.C.R.

(b) The sub]ect matter of the present petition is, barring only one ques... tion namely the validity _of the s1:cond proviso to rule (1) 01 the 1959-Rules, . whollx di~erent from that of the petition in ~<JJ.'f.Oor's case [228E-F]

(c) .The remedy by way of review of judgment giVen in another case in "'hich the petitioners were not parties could hardly b.! said to be an adequate alternative legal remedy available to the petitioners. [228F-Gj

. (3) Those who are· already promoted according to the impugned proce~ dure and whose position vis-a-vis_ the pe~itioner. would be likely to be affected by the invalidation of such procedure are before the Court as parties to the petition. All those who are necessary parties are before the Court, and th~re is. therefore no impediment in the way of the Court dealing with the matter. )228Hf

proce~

(4) The inter se seniority of the Tahsildars/MamJatdars allocated from the former State of Hyderabad etc., would .be governed by rr. 7, 8 _and 9 of the 1957-Ruies; and neither the Government resolution dated 21st November: 1941 as contended by the petitioners, nor the. government resolution -dated 29th July 1963 which superseded the 1941-Resolution, .'\\'ould ha.-~ any application. [229C-EJ . (5) right to be considered for promotion is condition of service. but mere chances. of promotion are not. By making promotions to the posts of Deputy Collector divisionwise and limiting such promotions to 50% of the total number of vacancies in the posts of Deputy Collector as result of the 1959-Rules, all that happened was to reduce the chances of promotion avail-able to the petitioners. rule which merely affects the chances of promotion cannot- be regarded as varying condition of service. Therefore, neither- tho 1959-Rules nor the procedure for making promotions to the po3ts of Deputy Collector divisionwise varies the conditions of service of the p:titioners to their disadvantage, and hence could n<Jt be assailed on the ground that the previous approval of the Central Government as· required by the proviso to s. 115(7) 1Jf the States Reorganisation Act was not obtained.-l230A.CJ

State of _A,fysore v. G. B. Purohit, C.A. No. 2281 of 1965: dated January 1967 followed.

(6) _The pCtitioners were not right in their contention that th.! second proviso to r. (1) of the 1959-Rules was valid provision. Both the directly recruited ~famlatdars as well as the promoted A-famlatdars form one class. They .are both known by the same designation. They have the same scales of pay and discharge the same functions. The posts held by them are inter-changeable. There is nothing to show that the two groups are kept apart: Both are· merged together in the same class. It is not competent to the Gov-ernment thereafter to discriminate between directly recruited A-famlatdars and promoted Mamlatdars in the matter of further promotio1--; to _the posts of-Deputy Collector .. ,That ~would be violative. of. Art. 16 of the Constitution. Therefore, the second proviso to r. ( 1) of the 1959-Rules must b.! held to be · · bad. f230D·G'Meryyn Coutindo v. Collector of Custoni.s. Bo111bav. rI966J 3 S.C.R. 600 c1.nd S. fl.I. Pandit v. The State of Gujarfl/, A.J.R. 19"i1 S.C. 252, fo1lowed. (7)(a) The State Government in the _absence of legislative rules, has to inake up· its mind on the question '\\·hether -to treat the cadre of ~famlatdars as State C(!dre or divisional Cadre; and· it is competent to the State Gov-ernment to take decision in the exercise of its executiv_e power under Art. 162 of the Constitution. The State Government accordingly decided. on 1st November 1956, that \\'bile recruitment to the posts of ~famlatdars shoul_d be ''on all State basis'' the cadre of ~famlatdars should be according to the divisions. f231 Dl

B. N. NOgarajan v. Stale of Mysore, [1966]·3 S.C.R. 682"and Sant Ram v. St."te of Raiasthan, [1968] I S.C.R. HI, followed.

(b) ft is true that arider the Bombay c·ivil ~ervices Classification and Recruitment Rules the service of ~famJatdars is regarded as Provincial Ser\·ice

.as .distinct from Subordinate Service. B·ut that does 1101 necessarily mean that it cannot be organised into divisional cadres. The only difference between Provin-cial Service and Subordinate Service reorganised in these Rules i'l in the mode of recruitment. Clearly from 1st November, 1956, the State Government pro-ceeded on the basis that the cadre of Mamlatdars was divisional cadre ,.nd not ;)tate Cadre. [231F-232B] (8) But nothing turns µpon this fact, b~cause the procedure for promoting from the divisional cadre of Mamlatdars to the State Cadre of Deputy Collectors was not consistent with Art. 16. [232C]

(a) The 1959-Rules provided that 50% of the vacancies in the cadre of Deputy Collector should be filled by direct recrtiitment. But since the cadre of Deputy Collector was State cadre, 50o/o of the vacancies to be tilled by direct recruitment were determined on the basis of vacancies in the cadre for the State as whole and not for any particular division of the State. But in regard to promotion by which the other 50% of the \'acancies in the cadre of Deputy Collectors Wf!S to be filled1 the State adopted wholly different procedure. Though common seniority list of aH the Mamlatdars in the State. irrespective of the divisions to which they belonged, could be prepared \Vithout any difficulty on the basis of the 1951-Rules for the allocated Mamlatdars/Tahsildars and for the subsequent appointees, on the principle vf continuous officiation up to 29th July 1963 and ·ther1:aft~r according to 1hc rule laid down in the Resolution of 29th July 1963, and common statewise list could also b! made of the ~famlatdars found fit for promotion as Deputy Collectors, and promotion to the cadre of Deputy Collectors, could be made on the basis of such. Statewise select list, the State Government L!td not follow ibis method, and instead. made promotions to the cadre of Deputy Collectors, which was State cadre. an the. basis of divisiqna\ :;dcrt lists. Where pro· motion is made hv selection on the basis of merit-cum-scn:ority, every ~famlatdar should have equal opportunity with others for being considered for promotion. But the actual procedure followed limits his opportunity for promotion to \'acancy in his own division. This procedure amounts to denial of equality of opportunity to the 1\lam\atdars, b~cause it is wholly unrelated to· the objec! and purpose of promotion. which is to sec1,1re an efficient cadre of Deputy Collectors and in fact negates it. [232D·234F]

(b) It is true that confirmations in the cadre of Deputy C-ollectors are n1ade on the basis of combined seniority list of officiating Deputy Collectors but that does not cure the infirmity in the mode of pron1otion. [234F-G]

(c) The allotment of deemed dates of continuous officiation cannot h'!lp retrieve those who have had no opportunity to be promoted as officiating Deputy Collectors, not on account of want of higher seniority or better 1nerit, but purely on account of lack of adequate number of vacancies in the post of Deputy Collector arising in their division. The giving of deemed dates of continuous officiation no doubt reflects the relative merits of the Mamiatdars in each division taken as separate unit, but it does not seek to adjust the seniority of the approved 1\1an1latdars in all the divisions taken as whole on the basis of assessment of their relative merits. Jt does not, therefore, eliminate the initial inequ:.:ility of lreatmcnt. [234G·235C] (d} The decision in Ra111 Saran v. D./.G. of Police, [1964] 7 S.C.R. 228, shows that if the Cadre of promotion is divisional cadre, there was division-w:se promotion on the basis of divisional select lists, but if it is State Cadrt, promotion has to be on Statewise basis, so that every officer in the Stute has <.-;;i_ual opportunity of promotion to the State Cadre. [237A-CJ

·(e) It is true that Mamlatdar cannot be promoted to the cadre of Deputy Collector unless he officiates as Deputy Collector. But it cannot for that reason be contended that there i..c; an intermediate cadre oi offici<1ting Deputy Col-lectors between the cadre of Mam!atdars and the cadre of Deputy CoUectors from which promotion is made to the cadre of Deputy Collectors. There is no lc;_gista-1ive rule or executive order providing for the creatio·n of any such intermediate cadre of officlaung Deputy Collectorc;. The 1959-Rules provided that the appointment to 50% posts of the Deputy Collectors should be made by promotion of suitable Mamlatdars, that is, promotion should be from the cadre of Mamlatdars to the cadre of Deputy Collectors. [238B-E}

[The need for' simplifying and streamlining service rules and a;ivina: th.em statutory shape so as to promote contentment among the services by extending the area of equal treatment and imparting stability to conditions of ser\'ice pointed out}.

ORIGINAL JURISDICTION : Writ Petition No. 299 of 1969.

Under Article 32 qf the Constitution of India for the enforcement of fundamental rights.

M. N. H. Heb/e, Parvathi Heble, S. V. Tambwekar, K. Raje11dra Chaudhry and Veena Devi Ta/war, for the petitioners.

S. B. Wad and S. P. Nayar, for respondent No. 1.

S. C. Agarwal, R. K, Garg and V. J.. Francis, for respondents Nos. 46-54.

The Judgment of the Court was delivered by

BHAGWATI, J. The short question that arises for determination in this petition under Art. 32 of the Constitution lios in very narrow .::ompass, but in order to arrive at its proper dctcrn1ination it is neces-sary to state the facts giving rise to the petition in some detail.

Prior to the reorganisation of the States, which took place on l.~t November, 1956 by virtue of the provisions of the States Reorganisa-tion Act, 1956, the petitioners were confirmed Tehsildars in the quon-dam State of Hyderabad which was then Part State. The Rules of recruitment to the posts of Tehsildar which prevailed in the erstwhile State of Hyderabad provided that I/3rd of the number of posts shall be filled by promotion from the lower ranks while the remaining 2/3rd shall be filled by direct recruitment on the basis of the result cf competitive examination. The petitioners belonged to the latter category of directly recruited Tehsildllls. The next higher cadre above that of Tehsildars was the cadre of the Deputy Collectors and recruitment to that cadre was governed by notification issued by the Rajpramukh of Hyderabad State on the 15th September, 1955. This notification provided that all the vacancies of the cadre of Deputy CollectOfS shall be filled 'only by promotion by selection' from the cadre of Tehsildars. It was common ground between the parties that both the cadres of Tehsildars as well as Deputy Collectors were State cadres.

On 31st August, 1956 the Parliament enacted the States Reorga-nisation Act, 1956 and that Act brought about reorganisation of almost all the States in India with effect from the appointed day, namely, !st November, 1956. The fasciculus of sections in Part II of the Act altered the territories of the existing States of Madras and Andhra Pradesh and brought into being various other new States. We are con-cerned here only with the formation of the new State of Bombay and we will, therefore, confine our attention to that. Section ~ constilutod new State of Bombay \vith territories drawn fron1 Various existing States. namely, Bombay, Hyderabad, Madhya Pradesh, Saurashtr:i and Kutch. The old State of Bombay ceased to exist and new State of Bombay with considerably enlarged territories came info being·

Since the new State of Bombay comprised territories coming from _ different existing States that was naturally bound to give rise to new and complex probli;ms of administration, particularly in foe context of increased tempo of developmental activities inducting· land reform measures . and the necessity of integrating th_e services, introducing unified pattern of administration and unifying the laws in the different territories brought together to form the new State of Bombay. The Government of Bombay, therefore, issued Resolution, dated !st November, 1956, dividing the territories of the new State into six divisions and placing e.ach division in the charge of Divisional Officer. The territories of former Saurashtra and Kutch States were grouped together in Rajkot Division, the territ·ories drawn from the former Bombay State, save the District of East Khandesh, in Ahmedabad, Bombay and Poona Divisions, the territories drawn from the former State of Madhya Pradesh in Nagpur Division and the tcrri· tories drawn from the former Hyderabad State with the addition of East Khandesh District in Aurangabad Division. Since the servic' personnel from these different territories came to be allocated to th' new State of Bombay, they had all to bo fitted into form compact and hon1ogcncous service, and it was,. therefore, necessary to decide where and at what place they should be adjusted in the constitution of the new· service. This process necessarily involved equation of posts. absorption of service personnel in the equated posts and determination of illter se seniority. The Government of Bombay, therefore. made Tl;, Allocated Government Servants' (Absorption, Seniority, Pay and Allowances) Rules, 1957, which we shall hereafter, for the sake of oonvcnience, refer to as the Rules of 1957. The Preamble to the Rub of 1957 stated that they were made by the Governor of Bombay in exercise of powers conferred by Art. 309 of the Constitution and wiih due regard to the proviso to sub-s. (7) of s. 115 of the States Reorga-nisation Act, 1956 and· with the approval of the Government of India obtained thereunder where neeessary. The Rules of 1957 provided inter alia for absorption of all persons allotted for Servfce to the State of Bombay and the determination of their inter se seniority in the cadre of absorption. Rule 3 dealt with the case of an allocated Govern· ment servant belonging to local cadre, that is, cadre other than State cadre in former State, but this rule had no application to Tehsildars of Ex-Hyderabad State because they belonged to State cadre artd not to lo:al cadre .. Rule 4 enacted general provision ihat the appointing authority shall issue an order absorbing each allocated Government servant, other than one covered by r. 3. in an equivalent post after the equation of posts was made by· the Government. The Government of Bombay thereafter. by Resolution dated 21st October, 1957. declared inter a/ia that the post of Mamlatdars in the · former State of Bombay shall be deemed to be equivalent to ·the posts of Tehsildars allocated from the foi·mer State of Hyderabad. The peti· tioners. and other Tehsildars allocated from the Ex-Hyderabad Sta:o were accordingly absorbed as confirmed Grade II Mamlatdars with effect from ·l st November; 1956. and since thcv wcro 'serving in one or the other of the districts of the . Ex-Hyderabad State which· wer~ · grouped together with East Khandesh District to constitute Aurangnbnd

j ./! .

[ 1974} 2 S.C.R.

Division, it was dir.ected that they shquld be treated as Grade II Mamlatdars in the Aurangabad division. Similarly, by the same Gov-ernment Resolution dated 21st October, 1957 the posts of Deputy Collector in the former State of Bombay were declared to be equiva-lent to the posts of Deputy Collector allocated from the former State of Hyderabad. ·

Grade II

·Prior to !he reorganisation of the States different rules of recruit-ment to the posts of Deputy Collector prevailed in the different re· gions which went to make up the reorganised State of Bombay. We have already referred to the rules contained in the Notification of the. Rajpramukh of Hyderabad dated 15th September, 1955. Then ti.ere were rules enacted by the Government Resolution dated 24th Juli, 1~51 which prevailed in the fomer State of Bombay. There wore also similar rules in the ether States, namely, Madhya Pradesh, Saurashtra and Kutch. The allocated Mamlatdars/Tehsildars coming from these different States undoubtedly carried their respectiv~ conditions of service with them under s. 115, sub-s. (7) of the States Reorganisa-tion· Act, 1956, and those conditions of service included the right to be considered for promotion as Deputy Collector, but the different rules of recruitment which prevailed in the differ·ent regions as such became wholly inapposite and incongruous and ceased to be appli- . cable in the new set up. The. Government of Bombay, therefore, felf that it was necessary to have new rules of rec·ruitmcnt to the posts __ \lLDcputy Collector applicable uniformly throughout the territory · cf the reorganised State and, with that end in view, framed recruit-ment rules and issued them as appendix to Rcsolutimt dated 30th July, .1959. These rules we shall hereafter for the sake of conveni· ence refer as the rules of 30th July, 1959. Rule 1 of tbese Rules· is material and it may be reproduced as follows .:

"Appointment to. the posts of Deputy Collector ,.hall be made either by nomination or by promotion of suitable Mamlatdars. ·

Provided that the ratio of appointment. by nomination and by promotion shall, as far as practicable be 50 : 50.

-· Provided further that half the vacancies reserved . for appointment by promotion shall be filled by directly re-cruited Mamlatdars who have put in at least seven years service in the posts including the period spent on probation."

It will be noticed that according to these rules vacancies in the posts of Deputy Collector were to be filled from three sources : 50% by nomination on the basis of the result of competitive examination, 25 % by directly recruit·,d Mamlatdars who have put in at least seven years service including the period spent on probation and the remainin~ 25% by Mamlatdars promoted from the lower ranks in \)10 Revenue Depart-ment. Tue· reservation of 25% of vacancies in favour of directly re· cruited Mamlatdars was made by the second proviso to rule 1, but in writ Petition No. 845 of 1967 filed by one Kapoor against the Commis-sioner of Aurangabad Division & Ors., Division Bench of the Bombay High Court, by its judgment dated 23rd March, 1968, declared

_.....,

R. s. DEODHAR v. MAHARASHTRA (Bhagwati, J.)

that proviso void as being violative of the equal opportunity ~lause contained in Art. 16 of the Constitution; The petitioners in this peti-tion disputed the correctness of this view takon by the High Court and contended that the provision enacted in the second proviso to rule · 1 was valid provision. But of that little later when we deal with the arguments of the parties. It is, however, evident that if the second proviso to ruk 1 were invalid, 50% of the vacandes · in the posts of Doputy Collector would have. to be filled by nomination and 50% by promotion of Mamlatdars irrespective of whether they were directly recruited Mamlatdars or Mamlatdars promoted from the lower ranks . . \Ve may also at this stage refer to one other cont~ntion raised on behalf of the petitioners in regard to ·the Rules of 30th July, 1959. That contention was that the Rules of 30th July, 1959 did not apply to the allocated Tehsildars from Ex-Hyderabed State who continued to be governed by the recruitment and promotion rules of their erstwhile State. This contention was sought to be supported by reference to letter dated 18th October, 1960 addressed by the Commissioner of Aurangabad Division to the first petitioner· in which the Commissioner stated that the Rules of 30th July, 1959 "are not applicable to Mara-th\vada officers as they are governed by re.cruitn1ent and promotion rules of Ex-Hyderabad State which are not yet unified by Government." The respondents admitted that such letter was addressed by .the Com-missioner to the first petitioner, but said that that was due to bonafide error, and in any event it was not binding on the State Government. The respondents urged that the Rules of 30th July, 1959 were unified recruitment rules applicable throughout the whole of reorganised State of Bombay and the promotion of the allocated Tehsildars from Ex-Hyderabad State to the posts of Deputy Collector was governed by those 'Rules and not by the Ex-Hyderabad rules. This controversy as to the scope and extent of the applicability of the Rules of 30th July, 1959 need not, however, detain us, as the same controversy \Vas raised also before the Bombay High Court in Kapoor's case and was decided in favour of the State Government,. and in view of the cogent reasons given by the Bombay High Court in support of its decision the petitioners· did not press their contention and agreed to proceed on the footing that <he Rules of 30th July, 1959 governed recruitment to the posts of Deputy Collector throughout the reorganised Bombay Stzte.

It may also ~tated that, as in the case of Deputy Collectors, so also in the case of Mamlatdars, the Government of Bornbav mad~ unifled rules of recruitment by Resolution dated 19th November, 1959. These Rules which we sha]J for the sake of convenience refer as the ·Rules of 19th November, 1959 came into force with effect from !st January, 1960. Rule 1 of these rules is material and it provided that appointment to the posts of Mamlatdars. shall be made by nomination on the result of competitive examination or by promotion from amongst tl1e members of subordinate revenue service. provided that as nearly as may be one half of the vacancies in the cadre of Mamlatdars shall be reserved for direct recruits by nomination "except in the case of Na~­pur Division" where special provision was made that this ratio would not aoply till oil persons recruited as Naib Tehsi!dars were either pro-moted as Tehsild1rs or rejected as not fit to be so promoted.

[ 1974] 2 S.C.R·

Now, according to the respondents, the cadre of Mamlatdars was divisional cadre and not State cadre and the reorganised State of Bombay being divided into six divisions, ·there. was separate cadre of Mamlatdars for each division. This position was, however, disputed on behalf of the petitioners and their argument was that though it was true that Mamlatdars were allocated to different divisions, that was only for the sake of administrative convenience and it did not have the effect of splitting up the State cadre of Mamlatdars into divisional cadres. The · cadre of Mamlatdars always remained one and indi,isibk and it was · State cadre. Now, whatever be the correct position in law, and we shall examine that presently, one thing is certain that the State Govern-ment proceeded on the basis that the cadre of Mamlatdars wa> divi-sional cadre. The procedure that the State Government followed for making appointment to the posts of Deputy Co!lect·Jr by promotion of suitable Mamlatdars/Tehsi!dars from and after 1st November, 1956 was that Jor each division select list of Mamlatdars/Tel1sildars consi-dered fit for promotion as Deputy Collector was prepared by revising committee every year and from the divisional sekct list, promotions were made as officiating Deputy Collector on divisional basis, and thereafter confirmations in the cadre of Deputy Collector, which was admittedly State cadre, ''were made for the State as whob after considering the claims of all officiating Deputy Collectors in the State as whole. This procedure does not appear to have the warrant of any legislative rules or administrative orders, but there can be no doubt,. from the affidavit in reply filed on behalf of the State Government, that it was in fact followed for making promotions to the posts of Deputy Collector. On 7th April, 1961, the Government issued Resolution laying; down the "principle< for regulating preparation and revision of select list of Mamlatdars/ Tehsildars fit to be appointed as Deputy Collectors in the posts to be filled by promotion". It may be recapitulated here that under the Rules of 30th Ju\y, 1959 the posts tO be filled by promotion of suitable Mamlatdars/Tehsildars were 25% in case the second proviso to rule 1 were held to be valid and 50% in case it was invalid. The Government Resolution dated 7th April, 1961 provided ' that committee should, in July-August each year, review the claims of all Mamlatdars(fehsildars for promotion to the posts o1 I'eputy Collector and should draw up select list for each division of those who are considered by the committee fit for promotion, and para- . graphs 3 to 7 of this Government Resolution laid down the principles . governing the preparation and. revision of the divisional· selec~ . ~sts. The promotions as officiating Deputy Collectors were made d!Vls10n-wise on the basis of the divisional select lists and confirmations in the cadre of Deputy Collector were made according to. the combined seniority list of officiating Deputy Collectors. Paragraph 17 of the affidavit in reply filed on behalf of the State Government set out the detailed procedure followed by the St"cte Government in this behalf. We shall have occasion to refer to this procedure in detail when we examine the respective arguments of the parties and we need not, therefore, elaborate it at this stage. Snffice it to point out that it was in accordance with the procedure that the petitioners were

.Iii

_,.,,..

, ' ' '-).

promoted as officiating Deputy Collectors in the Aurangabad Divisimi on different dates. The consequence of the adoption of thi• proce-. dure, however, was that some of the allocated Mamlatdars/Tehsild'1rs-in other divisions, who were junior to the pe:itioners, became JJfficiating Deputy Collectors earlier than _the petitioners and. were consequently entitled to be conf4med in the cadre of Deputy Collector• in preference to the petitioners. The petitioners actually gave in paragraph 38 of the petition examples of three allocated Mamlatdars from Ex-Bombay State, who were admittedly appointed Mamlatdars . later than the petitioners, and yet came to be promoted os oftkiating: Deputy Collectors earlier than the petitioners. This was the main cause of grievance of the petitioners in the petiti-~n.

Before we conclude the narration of facts we must also refer to Government Resolution dated· 29th July, 1963 passed by the Govorn-ment of Maharashtra which superseded the rule of seniority contained in an earlier Government Res-elution dated 21st November, 19-H. and provided that "The seniority of. .. promoted officers in the State Services"-and this would include the service of Deputy Collectors-"should· be determined, •. according to the date of promotion to officiate continuously in the case of those appointed by promotion, · irrespective of whether the appointments are made in temporary or in permanent . vacancies, subject to the provisions of the following clauses : (i).;_(ii) The inter se seniority of officers promoted from the select lists prepared in consultation with the State Public Service Com-mission should be determined in accordance with the ranks in the sdect list." This was the rule which governed the determination of seniority in the cadre of Deputy Collectors. ·

Nbw, various reliefs were claimed by the petitioner in the present petition, but of these reliefs, the petitioners did not press those con-tained in prayets V, VI and IX to XII. The · other reliefs were pressed by the petitioners and they may be subsummed :mdcr the following _three grounds : · .

(A) The gradation list of Mamlatdars/Tehsildars allocat· ed·to the State of Bombay as on 1st November. 1956 was liable to ·be prepared in accordance with the principle of seniority laid down in Government · Resolution dated 21st November, 1941, and the Gov-. ernment Resolution dated 29th July; 1963 . -had no application in the determination of such seniority. (B) The Rules of 30th July, 1959 varied the conditions of service of the petitioners and other allocated Tehsildars from Ex-Hyderabad State to their dis· advantage without the previous approval of the Cen-tral Government as required under the provi!o to s. 115, sub-s. (7) of the States Reorganisation Act, . 1956, and were, therefore, null and void. If, con-trary to this submission, the Rules of 30th July, 1959 were valid, so also was the .eoond proviso to

[ 1974] 2 s.c.R.

rule 1 of these .Rules, and the Bombay High Court was in error in declaring .it to be in.valid in Kapoor's case.

(CJ The Government Resolution dated 7th April, 1961, as also the· procedure for making promotions t~ the posts of Deputy Collector followed by the State Gov-ernment were violative of · the equal opportunity clause contained in Art. 16 of the Constitution. The promotions to the posts of Deputy Collector should have been made on the basis of Statewide seniority of Mamlatdars/Tehsildars by selection from amongst Mamlatdars/Tehsildars throughout the State as whole.

We shall proceed to examine these grounds in .the order in which we have set them out, but before we do so we must refer to some <Jbjections of preliminary nature raised on behalf of. the respondents.

The first preliminary objection raised on behalf of the respondents. was that the petitioners were guilty of gross ]aches and delay in filing the petition. The divisional cadres of Mamlatdars/Tehsildars were created as far back as 1st November, 1956 by the Government Resolution of that date, and the procedure for making promotion to· the posts of Deputy Collector on the basis of divisional select lists, which was necessary consequence of the creation of the divisional •cadre of Mamlatdars/Tehsildars, had been in operation for long number of years, at any rate from 7th April, 1961, and the Rules of 30th July, 1959 were also given effect to since the date of their .enactment and yet tlie petitioner did not file the petition until 14th July, 1969. There was delay of more than ten or twelve years in filing the petition since the accrual of the cause of complaint, and this delay, contended the respondents, was-sufficient to dlsentitlc the petitioners to any relief in pe'.ition under Art. 32 of the · Consti-. tution. We -do not think <this contention should prevail with us. In the first place, it must be remembered that the rule which says ·that the Court may not inquire into belated and stale claims is not rule of law, but a. rule of practice based on sound and proper ·exercise of discretion, and there is no inviolable rule that whenever there is delay, the court must necessarily refuse to· entertain the petition. Each case must depend on its own facts. The question, ..is pointed out by Hidayatullah, C.J.; in Tilockchand Motichand v. H. B. Munishi(•) "is one of discretion for this Court to follow from case to case. There is no lower limit and there is no upper limit-. It will all depend on what the breach of the Fundamental Right and the remedy claimed are and how the delay arose." Here the petitioners were informed by the Commissioner. Aurarn,abad Division, by his letter dated 18th October, -1960 and afro by the Secretary of the Revenue Department in January 1961 that the rules of recruit-ment to the posts of Deputy Collector in the reorganised State of Bombay had not yet been unified, and that the petitioners continued

to be governed by the rules of Ex-Hyderabad State and the Ruks of 30th July, 1959 ·had no application ·to ihem. The petitionors were, therefore, justified in proceeding on ihe assumption that there were no unified rules of recruitment to the posts of Deputy Collector and the promotions that were being made by the State Government were only provisional, to be regularised when unified rules of recruit· ment were made. · It was only when the petition in Kapoor's case was decided. by ihe Bombay High Court that the petitioners came to know that it was the case of the State Government in that petition~ and ihat case . .was accepted· by the Bombay High Court-that the Rules of 30th July, 1959 were ihe unified rules of recruitment to the posts of Deputy. Collector applicable throughout the reorganised State of Bombay. The petitioners thereafter did not lose any time in filing the present petition. Moreover, what is challenged in the petition is the validity of the procedure . for making promotions to the posts of Deputy Collector-whether it is violative of the equal opportunity clause-and since this procedure is not thing of 1he past but is still being followed by tho State Government, it is but desirable that its constitutionality should be adjudged when the question has come before the court at the instance of parties properly aggrieved by it. It may also be noted that. the principk on which the _Court proceeds in refusing relief to the petitioner on ground of !aches or delay is ihat the rights which have accrued to others by r_easons of the delay in filing tho petition should not be allowed to be disturbed unless there is reasonable explanation for the delay. This principle was stated in the following terms by Hidayatullah, C.J.. in Ti/okchand v. H.B. Munshi([1]) :

"The party claiming Fundamental Rights must move the Court bcfOre other rights come into existence. The ~tction of courts cannot harm innocent parties if their rights emerge by reason of delay· on the part of the person moving the Court."

Sikri, J., (as he ihen was), also re-stated the samo principle in equally felicitous language when he said in S. N. Bose v. Union of lndia([2 ]) : "It would be unjust to deprive the -respondents of thc rights which have accrued to them. Each person ought to be en-titled to sit back and consider that his appointment and promotion effected Jong time ago would not be set aside af[er the lapse of number of years." Here as admitted by the State .Government in paragraph 55 of the affidavit in reply, all promotions that have been made by the State Government are provisional and the position has not been crystallised .to ihd prejudice of the petitioners. No rights have, therefore, accrued in favour of othe" by reason of the delay in filing the petition. The promotions being provisional, they have not conferred any rights on those promoted and they are by their very nature liable to be set at naught, if the correct legal position, as finally determined, so· requires. We were also told by II the learned counsel for the petitioners, and that was not· controverted by the learned counsel appe<aring on behalf of the (!) [1969] 2 S.C.R. 824. (2) [19;0] 2 S.C.R. 697.

[ 197 4_J 2 S.C.R· .

:State Government, that even if the petition were altowed and the reliefs claimed by the petitioners granted to th~m, that would not result in the reversion of any Deputy Collector or officiating Deputy Collector to the post of Mamlatdar/Teihsildar;. the only effect would be merely to distmb their inter se ·seniority a> officiating Deputy Collectors or as Deputy Collectors. Moreover, it may be noticed lhat the claim for enforcdµtent of tho fundamental right of equal · opportunity under Art. 16 is itselE fundamental right guaranteed under Art. 32 and this. Court which has been assigned the role of sentinel on the qui vive for protection of the fundamental rlghtt .cannot easily allow itself to be persuaded to refuse relief solely on the jejune ground . of laches,. delay . or . tho like.

The respondents then contende,d that though the petitioners were not parties to the petition in Kapoor's case, some· of the respondents in that petition were directly recruited Tehsildars like the petitioners and · the dispute of. directly recruited Tehsildars as class was agitated in that case and decided and consequently if the judgment of the Bombay High Court in regard to such dispute was Uicorrect, the petitioners could '1lways apply for review of that judgment, as did the parties in Shivdeo Singh v. State of Punjab('). The petitioners had this alternatlve 1eQal remedy of review available to them, and there was no reason wby instead of pursuUig that remedy, the petitioners should have filed the present . petition under Art. 32. This contelrrtion is also without' force. and for three very good reasons. In the first place, it is difficult to see how the\ petitioners could have applied · for review of the judgment of the Bombay High Court in Kapoor's case. The petitioners were not persons directly and immediately affes:ted by the judgment and it c~uld not be said that they were necessary parties to the petition who should . have been .heard before the judgment was: given, as was the case in Shivdeo Singh v. State of Punjab('). The petitioners had. therefore, no locus to apply for review of that judgme,nt. Secondly, the subject matter of. the present .petition is, barring only one question· which is common, namely, . 1he question as to the validity of the second proviso to rule 1 of the Rules of 30th July, 1959, wholly different from that of the pe:titicin in Kapoor's case, and asking for review of the judgment in Kapoor's case would be no remedy at all so far as the reliefs claimed in the prtsent petition arc concerned. Lastly, the remedy by way of review of judgment given in another case in which the petitioners are not parties can hardly be said. to be an adequate alternative legal remedy · ·available to the petitioners.

,• • II

The third preliminary objection raised on behalf of the respon-. dents was that it was not competent to the Court to pronounce on the validity of the procedure for .making promotions to the posts of ' Deputy Collecto:r in the absence of other Mamlatdars/Tehsildars who mieht be interested in supporting the procedure. This objection ·is equalfy futile. Those who are already promoted according to the impu~ned procedure and whose position vis-a-vis the petitioners would be likely to be affected by the invalidation of such procedure. are

c~ll A.l.R. 19$3 S.f:. 1939.

<A bdore the Court as parties to the petition. Only those Maiiilatdars/ Tehsildars are not mad• parties to the petition who are not·promoted as officiating Deputy Collectors or who are, even ~n ~he basis of th.• promotions made under the impugned procedure, ·1umor to the p:_ll· tioners. Bur these l\lamlatdars/Tehsildars are not necessary. parties to the petition, as they would not be adversely affected vis-a:vis ~he peti-tioners even if the impugned procedure were held to be mvahd. All those who arc necessary parties are before the CL'Urt and there _is, therefore, no impediment in the way of tho Court proceeding to decide the. qui!stions raised for its determination.

Having -rejected these pr~1i111:nary objections, \ve shall ·no\V turn to examine the grounds of challenge urged on behalf of. the peti-c tioners.

Re. Ground,..\.: The argument under this.ground of chJllcngc \vas. t!l;it tho: ~cniority of the petitioners vis-a.:·"Vis other Marnlatdars/ Tehs!idars in the recognised State of Bombay was liable to be deter-111in!d according to the principle Jaid down in the Government Reso-· lution dated 21st No.-ember, .1941 and the Government Resolution dated 29th July, 1963 had no application:· This argument is little difficult to comprehend. We fail to see how either of the t,wo Go-vcnunent Resolutions dated 21st November, 1941 and 29th July, .1963 comes. into the picture in determining the seniority of the petitioners qua other ·allocate<;! Mamlatdars/Tehsildars as on Isl :>;ovember, 1956. The inter se seniority of the Tehsildars and '.\famla!dars allocated from the. former States of Hyderabad, '.\ladhya Pradesh, Bombay, Saurashtra · and Kutch to the re-~rgamsed States of Bombay as on !st November, 1956 would be governed by rules 7, s·and 9 of the Rules of 1957, and neither the Government Resolution dated 21st November, 1941 nor the GOvern-mcnt Resolution dated 29th July, 1963 would have any application. Prayer II of the petition must accordingly be rejected.

Re : Ground : The petitioners and other allocated Tehsildars from Ex-Hyderabad State had, under the Notification of the Rajpra-mukh dated 15th September, 1955, all the vacancies in the post of Deputy Collector in the .Ex-Hyderabad State available to them for promo:ion, but under the Rules of 30th July, 1959, 50% of the vacan. cies were to he filled by direct recruitment and only the remaining 50% \'.We available for promotion and that too on divisional basis. This ~1'.;cording to th::: petitioners, constituted variation to their prejudice in the conditions of service applicable to them immediately prior to· the reorganisation of the States and since such variation was effected by the Rulcs"of 30th July, 1959 without obtaining the previous appro-rnl of the Central Government as required under the proviso to s. 115, sub-s. (7) of the States Reorganisation Act, 1956, the Ruks of 30th 11 July, 1959 were invalid. This contention of the petitioners we find difficult to accept. All that happened as result of making promo-tions to the rosts of Deputy Collectors divisionwise and limitini: such

promotions to 50% of the total number of vacancies in the posts of Deputy Collector was to reduce the chances of promotion available to the petitioners, .It is now well settled by the decision cit this Court in State of Mysore v. G. Pl{rohit( [1]) that though right to be consi-dered for promotion is condition of service, n1erc chances of promo .. tion are not. rule which merely affects chances of promoti011 cannot be regarded as varying condition of service. In Purohit's case, ( [1]) the districtwise seniority of sanitary inspectors was changed to Statewise seniority, and as result of this change the respondents went down in seniority and became very junior. This, it was urged, affected their chances of promotion which were protected under the proviso to s. 115,_ sub-s. (7). This contention was negatived and Wanchoo, J., (as he then was), speaking on behalf of this Court obser-ved: "It is said on behalf of the respondents that as their chances of promotion have been affected their conditions of service have been changed to their disadvantage. We see no force in this argument because chances of promotio11 are not conditions of service". It is, therefore, clear that neither the Rules of 30th July, 1959, nor the pro-cedure for making promotions to the posts of Deputy Collector division-wise varies the conditions of service of the petitioners to their disadvan-tage. The proviso to s. 115, sub-s. (7) is accordingly not attracted and the Rules of 30th July, 1959 cannot be assailed ns invcilitl on ground of non-compliance with that proviso.

So far as the question of validity of the second proviso to rule 1 of the Rules of 30th July, 1959 is concerned, there cnn be no doubt that the Bombay High Court was right in declaring it to be invalid. It can hardly be disputed that both the directly recruited MR!nlatdars as well as the promotec Mamlatdars form one class. They arc both known by the same designation. They have same scales of pay. They discharge the same functions. The posts held by them are interchangeable. There is nothing to sho"· that the two groups are kept apart. Both are merged together in the same class. lt is not competent to the Government thereafter to discriminate between direc-tly recruited Mamlatdars and promotee Mnmlatdars in the matter of further promotion to the posts of' Deputy Collector. That would be violative of Art. 16 of the Constitution. This is abundantly clear from the decisions of this Court in Mervyn Co11ti11do v. Collector of Customs. Tlombay(') and S. M. Pandit v. The State of G"jar.it('). In fact S. M. Pandit's case(") is directly in point. The facts of the present case are almost indistinguishable from S. M. Ptindit's caie(:i). The second proviso to rule 1 of the Rules of 30th July, 1959 must conse-quently be held, to be bad as being in conflict with Art. 16 of the Cons-G titution. Re : Ground : The first question that would logically seem to arise under the ground of challenge is whether in the reorganised State of Bombay the cadre of Mamlatdars was State cadre or divisiohal cadre. There is no doubt that in the former State of Hyderabad the cadre of Mamlatdars was State cadre. What was the nature of the

(!) C.A. No. 2281of1965, decided on 25th Januar,, 1957. (2) [t9<5] 3 S.C.R. 600. (l\Al.R. t972S.C.252.

cadre of Mamlatdars in the former State of Bombay was matter ol dispute between the parties. The. petitioners said. that it was State cadre, while the respondents asserted that it was divisional cadre. It is not possible to resolve this controversy on affidavits as it raised disputed question of fact, and we must, therefore, withOut finally deciding ll!e question proceed on the basis t!iat in the former State of Bombay the cadre of Mamiatdars was divisional cadre as alleged by the respondents. Nothing, however, turns upon this fact except to indicate that if the cadre of Mainlatdars in the recognised State of Bom. bay was constituted into divisional cadre, it was not something radi· Cally ne "'; at was in line with what prevailed in the former State of Bori:ibay. Now let us examine what happened on the reorganisation of the States. The allocated Mamlatdars/Tehsildars com~ from diff-erent' regions were absorbed in the equated posts of Mamlatdare and the question arose as to how they should be integrated in ·the new service. Should they be formed into State cadre as in Ex-Hyderabad State or into divisional. cadre as in Ex-Bombay State? The State Govern· ment bad to make up its mind on this question and, in the absence of legislative rules, it was competent to the State Government to take decision in the exercise of its executive power under A.rt. 162 of the Constitution, vide B. N. Nagarajan v. State of Mysore(') and Sant Ram v. State of Rajasthan('). The State Government accordingly decided by Government Resolution dated 1st November, 1956 that while rec· ruitment to the posts of Mamlatdars should be "on all State basis", the cadre of Mamlatdars should be according to the divisions. It was con-tended on behalf of the petitioners that the constitution of Mamlatdars into divisional cadres willl contrary to the Bombay Civil Services Clastification and Recruitment Rules which were statutory rules made by the Governor under s. 241 of the Government of India Act, 1935. These Rules, said the petitioners, classified the service of Mamlatdtlrs as Provincial Service and that showed that the cadre of Mnmlatdars was Provincial or State cadre. Now it is .true that under the Bombay Civil Services Classification and Recruitment Rules the setvice of Mamtaidars is re~arded as Provincial Service as distinguished from Subordinate Service, but· that does not necessarily mean tbat:it cannot be organised into. divisional cadres. The only difference between Pro-vincial service and Subordinate service recognised in these Rules is that whereas "appointments to Provincial services-shall be made by Government or by an authority empowered by Government in this behalr', "recruitment to Subordinate Service shall be made bY Heads of Departments and those Heads of Offices to whom powers have been delegated subject to the provisions of these rules and under the general control of Government". There is nothing in these Rules which says that Provincial service may not consist of divisional. cadres. The .organisation of Mamlatdars into divisional cadres cannot, therefore, be said to be in conflict with these Rules and on that account invalid. Jn fact we find legislative recognition of the constitution of divisional cadres of Mamlatdars in the Rules ~ 19th November, 1959 which arc admittcdlv statutory rules made under the proviso to Art. 309 of the Constitution. The proviso to rule l proceeds on the basis that the cadre·

(l) [19661 ~ S.C.R. 682.

(21 [1968) I S.C.R. !H.

3-LS22SupCI /74

of Mamlatdars is divisional cadre and in refer.:nc" to each divisional cadre, goes on to provide that one half of the vacancies shall be filled by nomination and one half by promotion, ex<:ept in case of divisional C2dre of Nagpur division where tlili provision would not apply unt! after all persons recruited as Naib Teruildars are either promoted as Mamlatdars or rejected as not fit to be so promoted. There can, there-fore, be no doubt that right from 1st November, 1956 the cadre cl Mamlatdars was divisional cadre "'.'d not State cadre. It is equally clear from the Government Resolution dated 1st November, 1956 as . well as the affidavits that the cadre of Deputy Collectors was State Cldre .... The question is whether the procedure followed by the Stat~ Government for making promotions to the State cadre of Deputy Collectors from the divisional cadres of Mamlatdars was consistent with Art. 16 of the Constitution. Did it ensure equality of oppar· tunity for promotion to Mamlatdars belonging ti> the different divisional · cadres?,

While examining this question it is necessary to compare the proce-dure followed in regard to diroct recruitment to the cadre of Deputv O>llectors. As we have already pointed out above, the Rules of 30th July, 1959 provided that 50% of the vacancies in the cadre of Deputy Collectors shall be filled by Diroct rocruitment. Since . the cadre of Deputy O>lloctors was State cadre, 50% of the vacancies to be filled by .direct recruitment were determined on the basis of vacancies in the cadre for the State as wlwk and not for any particular division of the State. The direct recruitment was made on Statewide basis without ariy 'attempt to see that there was divisionwise representation. But in regard to promotion by which the other 50% of the vacancies in the cadre of Deputy Colloctors were to be filled, the State Government adopted wholly different procedure. Though common seniority list -0f all the Mamlatdars in the. State, irrespective of the divisions to which they belonged, could be prepared without any difficulty on the basis of the Rules of 1957 for the allocated Mamlatdars/Tehsildars and for th<: . subsequent appointees, on the principle of continuous officiation upto · 29th July, 1963 and thereafter according to the rule laid down in Gov-ernment .Resolution dated 29th July, 1963 and common Statewide select list could also be made of Mamlatdars found fit for promotion a; Deputy Collectors and promotion to the cadre of Deputy Collector> could be made on the basis of such Statewide select list, the Stat< Government did not choose to follow this method and instead m!<k promotions to the cadre of Deputy Collectors which was State cadre on the basis of .divisional seloct lists. The procedure followed by the State Government for. making promotions was as follows : The Revie•c Committee prepared every year for each division separate divisional select list of those Mamlatdars who were found fit for promotion n• 'Deputy Collectors. Where Mamlatdars were brought on th<> divisional · select list at the same time, their names were ordinarily arranged accord-ing to their seniority in the divisional cadre but in case of Mamlatdar of outstanding merit, higher rank· might be given to him in th< divisional select list than that warranted by his seniority. Subject to this provision, the seniority of Mamlatdars · in the Divisional select list was determined by the date of their entry in the list. When

'~. S. DBODHAR V. MAHARASHTRA (Bhagwati, J.)

vacancy arose in the post of Deputy Collector in division and it was likely <o last for three months or more, the Mamlatdar whose name was highest in the Divisional select list and who was not already ofliciating, wa. promoted as ofiiciating Deputy Cbllcctor in the vacant post. Tho name of such Maln!a\dar, though promoted. as officiating Deputy Col-lector, however, co11tmued in the divisional select list until he was n confirmed in the cadre of Deputy Collectors or retired from service wluchever happened earlier. Now, the ranking in the divisional select list did not remain constant. There WO! periodical review of the work of the officiating Deputy Collectors and on such review, the rankil!g in tho divisional select list was adjusted so as to reflect the assessment of the relative merits of the officiating Deputy Collectors e.g. an ofliciat-ing Deputy Collector who had better record of service might be placed higher than another with' less meritorious record and so on and so for1. in descending order of merit. The promotions as officiating Deputy Collector were thus made for each division separately on the basis ol its divisional select list in which the ranking kept on changing periodi-cally as result of review and assessment. Then for the purpose ot confirmation in the cadre of Deputy Collectors, combined seniority list of officiating Deputy Collectors from all divisions was prepared. The procedure followed for the purpose of preparing tho combine1l seniority list was as follows : In the first place "deemed" dates ol continuous officiation wore givoo to the officiating Deputy Collectors from each division with view to ensuring that their illfer se ranking in the divisional select list was not affected by the fact that an officer lower in rank in the divisional select list might have been officiath1g as Deputy Collector for longer period than another in higher rank. This was done by providing that the officer who was highest in tkc rank in the divisional select list should M given the date of continuous officiation of the officer who had the longest period of officiation as Deputy Collector and the officer next to him in rank should be given the date of continuous officiation of the officer who had officiated ne•t longest as Deputy Collector and so on till the dates of continuous officia-tion of all officers were adjusted so as to reflect their inter se seniority in the divisional select list. Thus, if A, and were officiating Deputy Collectors in division having 1st January, 1960, !st July, 1960 and !st January, 1961 respectively as their dates of continuous officia-tion and in the divisional select list their ranking was first C, s;::cond and last A, their deemed dates of continuo\1s officiation would be 1st January, 1960 for C, 1st. July, 1960 for Band 1st January, 1961 for A. Then on the basis of the deemed dates of continuous officiation given to the officiating Deputy Collectors in each division, combino.l Statcwise seniority list of officiating Deputy Collecliors was prcpar0<.l and confirmations in the cadre of Deputy Collectors were made iJ1 accordance with the seniority in such combined Stalewise seniorit1· list. This was the procedure fullowed by the State Government ancl it haS' to meet the challenge of Art. 16 ot the Constitution.

Now, it is clear that this procedure suffers from serious h1firmitv in that it provides for promotions to the State cadre of Deputy Collec: tors to be made on the basis of divisional select lists. That clearly amounts to denial of equality of opportunity to Mamlatdars in the Stato

in the matter o~ promotion to the cadre of Deputy Collectors. If Mamlatdar aspires to be promoted to the cadre of Deputy Collectors which is the next higher cadre of promotion for him, he has to bo pro-moted first as officiating Deputy Collector. It is only after he is pro-moted as officiating Deputy Collector that he can become eligible to be confirmed in the cadre of Deputy Collectors. But, in order to. be promoted as officiating Deputy Collector, he has to wait until vacancy occurs in the post of Deputy Collector in his division. Even if he is senior to Mamlatdar in another division and more suitable, he cannot be promoted to officiate in vacancy which arises in the other division. His opportunity for promotion is limited to vacancy in his own division. The consequence is that if vacancy in the post of Deputy Collector arises earlier in one division, Mamlatdar m the select liM of that division, would get promoted a~ officiating Deputy Collector earlier than Mamlatdar in another divis_ion whei:e vacancy in the past of Deputy Collector arises later and, subject to the operation of the rule o( deemed dates of continuous officiation, that would . mean that the former would gain entry in the cadre of Deputy Collector earlier than the latter, even though the former may be junior and Jess· suitable than the latter. The entry in the cadre o~ Deputy Collectors is thus made to depend not on the assessment of the relative merits of Mamlatdar vis vis the other Mamlatdars in the State, but on the fortuitous circumstances as to when vacancy in the post ot Deputy Collector arises in the division to which the Mamlat_dar belongs. This is clearly violative of the equal opportunity clause because it is wholly unrelated to the object and purpose of promotion which is to secure an efficient cadre of Deputy Collectors and in fact negates it. It must be remembered that the cadre of Deputy Collectors is State cadre and for promotion to such State cadre every Mamlatdar must have equal opportlmity to be considered. Where promotion is made by selection on the basis of merit-cum-seniority, every Mamlatdar ·should be able to enter the list~; he should have equal opportunity with others for being considered for promotion. There must be one common door for entry into the cadre of Deputy Collector, through which every Mamlatdar should be equally entitled to enter, provided he is selected on the application of the principle of merit-cum-seniority. There cannot be six doors of entry, .one door available exclusively for the Mamlat.dars of each division. That is bound to create inequality of opportunity in the matter of promotion. It is true that confirmations in the cadre of Deputy Collectors are made on t.he basis o~ combined seniority list of officiating Deputy Collectors. but that does not cure the infirmity in the mode of promotion. The allotment of deemed dates of continuous officiation cannot help retrive those who have had no opportunity to be promoted as officiating Deputy Collectors, not on account of want of higher seniority or better merit, but purely on account of Jock of adequate number· of vacancies in the post of Deputy Collector arising in their division. Moreover, since the offi-ciating Deputy Collectors arc still substantively Mamlatdars and it is in virtue of their being Mamlatdars that they are ·eligible to be pro-H moted to the cadre of Deputy Collectors by confirmation, the com-bined seniority list of officiating Deputy Collectors is in truth and

R. S. DEODHAR v. MAHARASHTRA (Bhagwati, /,)

reality nothing but combined select list of Mamlatdars prepared by amalgamating the divisional select lists. The amalgamation of the divmonal select lists is not made on coml>8!ative assessment of the re1ative merits of the Mamlatdars. in the divisional select lists so as to produce combined seniority list based on merit·cum-seniority, but .it proceeds on the basis of deemed dates ol continuous oiliciauon as Deputy Collectors given to Mamlatdars in their respective divi-B sional select lists. The giving of deemed dates of continuous offici•t1on no doubt reflects the relative merits of the Mam!atdars in each divi-sion taken as separate unit, but it does not seek to adjust the seniority of the approved Mamlatdars in all . the divisions taken as whole on the basis of assessment of their relative merits. It does not, therefore, eliminate the inequality of treatment which inheres at the initial stage of promotion as officiating Deputy Collectors. The vice of inequality of opportunity continues to inhibit promotions to the cadre of Deputy Collectors. The procedure followed by the State Government in making promotions must, therefore, be held to be violative of Art. 16 of the Constitution.

The respondents, however, relied very heavily on the decision of this Court in Ram Saran v. Deputy Inspector General u/Police(I) and contended that this decision gives approval to the mode of pro-motion adopted by the State Government in !he present case. We do t;i0t think so. Read superficially it might appear that this decialon supports the contention of the respondents, but if we Scrutinise It closely, it would be apparent that not only it does not render any assistance to the respondents .but actually aoes against them. To understand the true ratio of this decision it I& nece11ary to notice the facts in some detail. The police force in the State of Rajasthan was constituted under Police Act, 1861, and under s. 2 of the Act It ~s de.e!lled to be one .police force for the whole state under the control. and supervision of the Ins~toi' General of Police. The entire area of the. State was, for adnunistrative convenience, divided into four ranges, each under the. charge of Deputy. Inspector General of Police. Ea.ch range comprised various district organisatlona under Superintendents . of Police. The .initial recruitment to the police force was in the rank of constable and that was done within the district by the Superintendent of Police. The cadre of constables was district cadre. The promotion from the cadre of constables to the next hiaher cadre of head constables' wu made within the district by the Superin· tendent of Police on the basis of districtwise select list of approved constables. The cadre of Head Constables was also district cadre. The further promotion from the cadre of Head Constables to the cadre of Sub-Inspectors waa made within the. range by the Deputy· Inspector General of Police and for this purpose all the Head Constables in the range were considered as one group for promotion to the rank of S11b-Inspectors and promotion was made on the basis of rangewlse select list of approved Head Constables. Whenever vacancy In the post of Sub-Inspector of Police arose in ranl[e, the Deputy In1pectot General of Police of that range would make promotion from the select list of his range according to seniority and conversely if reversion were (I) [t96417 S.C.R. 228.to take place, the junior most Head Constable officiating as Sub-Inspector in the range would revert. The cadre of Sub-Inspectors was thus clearly range cadre. So far as the riext higher cadre of Inspec-tors is concerned, that was State cadre and promotion to that -cadre was made by the Inspector General of Police for the State as whole on the basis of Statcwise select list of approved Sub-Inspeclors. Now what happened in this case was that the petitioner who was promoted to the rank of Sub-Inspector from the rank of Head Constable was reverted when permanent Sub-Inspector returned to .th~ range, as he .. as the junior most approved Head Constable officiating as Sub-Jnspector in that range, though in other ranges there were many ap-proved Head Constables who were junior to him and yet continued to officiate as Sub-Inspectors. The petitioner thereupon filed petition under Art. 32 of the Constitution challenging the rangewise system of promotion from the rank of Head Constables to the tank of Sub-lnspectors int~r alia on the ground that .. the .whole police force being one, the practice of promotion of Head Constables to officiate as Sub-Juspectors rangewise amounted to denial of equality of opport1mity under Arts. 14 and 16 of the Constitution. While dealing with this i:round of challenge the Court pointed out that at the level of Cons-tables and Head Constables local knowledge was conducive to admi-l!istrative efficiency and that was the reason why recruitment of Con-stables and their promotion as Head Constables was on districtwise basis and even for the post of Sub-Inspector, local knowledge was regarded as useful, and therefore, while widening the area, selections to the post of Sub4nspector were confined within the range. In re-iard to the post of Inspector, however, local knowledge was not in-sisted upon as the work of Inspector is mostly of supervisory nature and hence promotion to the rank of Inspector was provided on State-wide basis. The Court then proceeded to ob<erve : "If tne ~'ate has evolved the three tier system of giving promotion from constables to head-constables from head-constables to Sub-Inspectors and from Sub-Inspectors to Inspectors, which is done in the interest of adminis-trative efficiency of the police force, it cannot in our opinion be said that such system should be struck down on the grouild that the police force being deemed one for the whole State, promotion through-out from constable upwards should be on the basis of the whole State. Apart from administrative difficulties which may arise if all promotion of members in the police force is concentrated in the hands of the Inspector General of Police which is wl1ilt the petitioner is contend'.-ing for, it seems to us that there is good deal of force in the conten-tion of the State that the three tier system works for the efficiency of the police force of these ranks and is designed with that object". Cn this reasoning the Court negatived the constitutional challenge to the validity of the system of promotion.

It will be seen from. this analysis of the reasoning of the decision in Ram Saran's case(l) that far from negativinQ: the contcntinn of the petitioners, it goes long way towards supporting it. In Ram Saran's case([1]) the cadre of Sub-Inspectors W3' range cadre and promo'ion to that cadre in each range was made on the basis -------of select

(!) [1964] 7 S.C.R. 228.

.I\, S. DEODHAJ\ V. MAHAB.ASHTRA (Bhagwati, /,)

list of approved Head Constables from that particular range. This mode of promotion which confined promotions from Head Constables to Sub-Inspectors within the range was upne,d by this Court because it was calculated to make available the advantaae of local knowled,e ia post where such local knowled&e would be useful in promoting the interest of administrative efficiency of the poliee force. But the i>.Sic feature underlying this mode of promotion was, and that is vital 16 the understanding of the true ratio of this decision, that in respect of promotion to the range cadre of Sub-Inspectors all the Head Cons-tables in, the range were eligible 'for being considered and promotion to such range cadre was made on the basis of rangewise selection list prepared by taking into account the relative merits of all the Hea4 Constables in the range. Every Head Constable in the range bad, therefore, equal oppQl'tunity of promotion to the range cadre of Sub· Inspectors. Here in the present cau, however, as we have already pointed out above, the procedure adopted by the State Government provided for promotion to the State cadre of Deputy Collectors, not on the basis of Statewise select list, but on the basis of divisional select lists of Mamlatdars. This is very vital point on which the mode of promotion in the present cas!I' differed from that in Ram Saralts case([1 ]). If the cadre of Deputy Collectors had been divisional cadre, there would have been no objection in providing that the pro-motion to that cadre shall be divisionwise on the basis of divisional select lists: Then the analogy in Ram Saran's case([1]) would have been complete. But here the cadre of Deputy Collectors was admittedly State cadre and not divisional cadre and divisionwise promotion to such cadre on the basis of divisional select lists could not, therefore, be jostified on the ratio of the decision in Ram Saran's case ( [1]). It may be noticed that in Ram Saran's case('), in regard to promotion to the State cadre of Inspectors, the procedure followed was to have Statewise select list of approved Sub-Inspectors from all over the St.ie and to make pro-motion to the State cadre of· Inspectors on the basis of such Statewise select list. The promotion to the State cadre of Inspectors was :aot alide rangewise on the basis of separate select lists of Sub-Inspectors. of each range. If that had been done. and upheld by this Court. tl1e argument of the respondents would have been almost unassailal>le. But the promotion to the State cadre of Inspectors was on Statewise ba11.i~. The ratio of the decision in Ram Snran's case([1]) does not, therefore, support the contention that promotion to State cadre ~an be made on the hasis of divisional select lists. On the contrarv. it su~gests that if the cadre is divisional cadre, there can be divi:!iJ:l-wise promotion on the basis of divisional select lists, but if it ;s State cadre, promotion must be on Statewide basis so that every officer in the State.has equal opportunity of promotion to the State cadre. Ram Saran's case('), therefore, impliedly supports the view which we bavc taken on priori reasoning. The respondents faintly attempted to argue that in the present case there was an intermediate cadre of officiating Deouty Collectors between the cadre of Mamlatdars and the cadre of Deputy Collectors and promotion from the cadre of Mam-II lntdars lay to the cadre of officiating Deputv Collectors and it was from the cadre of officiating Deputy Collectors that one could obtain

(1) llQ~41 7S.C.R. 22~.

promotion to the cadre of Deputy Collectors, . The cadre of of!iciatin• Deputy Collectors was divisional cadre, and therefore, promotion t~ it was divisionwise on the basis of divisional select lists, while. the cadre of Deputy Collectors was State cadre and hence promotion to it was statewide on the basis of the· combined seniority list of all offi-ciating Deputy Collectors in the State. This was iµ accord with the pattern of promotion in Ram Saran's case(') and was, - therefore, valid. This contention of the respondents is without force. Tm! pre-mise on which it is founded is incorrect. It is wholly contradicted by the Rules of 30th July, 1959 which are admittedly statutory rules. These Rules provide that appointment to 50% of the posts of Deputy Collectors shall be made by "promotion of suitable Mamlatdars". The promotion that is spoken of in these Rules is promotion from the cadre of Mamlatdars to the cadre of Deputy Collectors. These Rules completely negative the existence of any intermediate cadre of offi-ciating Deputy Collectors. It is difficult to see how in the face of these Rules which have statutory affect, it can ever be contended that promotion to the cadre of Deputy. Collectors was not from the cadre of Mamlatdars but from the s<Kalled ·cadre of officiating Deputy Collectors. Of course it is true·that Mamlatdar cannot be promoted to the cadre of Deputy Collectors unless he has first officiated as Deputy Collector, but when he is promoted, it is from the cadre of Mamlatdars and not from any supposed cadre of officiating Deputy Collectors. In fact there is no legislative rule or executive order pco-vidi11g for the creation of such an intermediate cadre of ofliciating Deputy Collectors. . ·

We, therefore, hold that the second proviso to Rule 1 of the Rules

of 30th July, 1959 is void as being violative of Art. 16 of the Consti-tution. We also declare the procedure for promotion to the cadre of Deputy Collectors followed by the ~ate Government to. be invalid on the ground that it denies equality of opportunity of promotion and is therefore hit by Art. 16 of the Constitution. The Government Reso-lution dated 7th April 1961 must also be quashed and set aside for the same reason. We direct tho State Government to readjust the promotions as officiating Deputy Collectors as also the confinoatloas in the cadre of Deputy Collectors in the li&ht of the principles laid . down in this judgment. The readjustment shall be made with retro&-pective efl'ect and the petitioners shall be given the benefit of seniority, pay and other allowances from the respec•ive dates on which they would have been promoted, had the promotions been made on the co..-rect basis indicated in the judgment, subject to the qualification that liO far as arrears of pay and other allowances are concerned, they may no• be given for the period prior to. the filing of the petition. The first respondent will pay the costs of the petition to the petitioners .

. Before we part with this case we may add paragraph by way of epd_ogue., We fin~ in the course of our judicial experience, and we n_ot1ce. th1s~fa<:t with some apprehension, that membe~ of public ser-vices m alarmmgly large numbers resort to legal remedies in courts of law for agitating their grievance in regard to service · matters. This (I) [19641 7 S.C.R. 228.

phenomenon is symptomatic of sense of injustice and subversive of that undivided and devoted attention to official duties which is so essential for efficient and dynamic functioning of the Government. It can, therefore, hardly he over emphasised that there is areat need for simplifying and streamlining service rules and giving them statutory shape so as to promote contentment among the services by extending the areas of equal treatment and imparting stability to conditions of service. It is not desirable that the fortunes of such vital and straie-gic instrument of Government as the public services should be left to be governed by mere departmental resolutions and executive instruc-tions. These cannot take the place of statutory rules which a!ODC can impart stability and security and ensure observance of the rule of law. Legal rules must govern the recruitment and conditions of public servants so that there is no arbitrariness or inequality in State action in regard to them· and the .rule of law is not eroded. And sllCb. Illies should preferably be framed without avoidable delay and after con-sultation with groups which apprehend discriminatory treatment as that would go long way to produce sense of contentment and satis· faction. We make these observations not with view to casting any r~ection on the administration but to highlight problem which bas come to our notice quite often, in the hope that it will help appreciate the social dimensions of the problem and the damage to public illte-rest which may be likely to result if the problem is not promptly and satisfactorily resolved.

Petition allowtd.