PETITIONER:
N.K. CHAUHAN & ORS.
Vs.
RESPONDENT:
STATE OF GUJARAT & ORS.
DATE OF JUDGMENT01/11/1976
BENCH:
KRISHNAIYER, V.R.
BHAGWATI, P.N.
FAZALALI, SYED MURTAZA
CITATION:
1977 AIR 251 1977 SCR (1)1037
1977 SCC (1) 308
ACT
Constitution of India--Articles 14-16--Civil Serv-
ice--Seniority--Direct Recruits and promotees--Quota--Wheth-
er roster implicit--Benefit of Service-Words & Phrases--"As
far as practicable".
HEADNOTE
The appellants are the promotee Deputy Collectors in the
State of Gujarat. The contesting respondents are the direct
recruits to the parent cadre of Deputy Collectors. 7 Deputy
Collectors who are the contesting respondents in this
appeal and who were directly recruited as Deputy Collectors
in and after 1963 claimed that they were senior to the
appellants who were the promotees promoted as Deputy Col-
lectors between the years 1960 and 1963 by filing a Writ
Petition in the High Court. The routine source of recruit-
ment to the posts of Deputy Collectors used to be Mamlatdars
who were promoted as Deputy Collectors. In 1939, direct
recruitment policy was also evolved for this post. By an
order of 1941 the mode of determining seniority between
direct recruits and promotees was settled. As far as the
direct recruits were concerned, their seniority was to run
from the date of their appointment on probation and in the
case of promotees such service was to begin with promotion
in substantive vacancy if continued without break. During
the year 1950 to 1959 the direct recruitment was discontin-
ued. By the Bombay Government Resolution dated 30-7-1959,
the mode of direct recruitment was again started and the
proportion in which the recruitment from the two sources,
namely, the direct recruits and the promotees, was fixed as
50: 50 as far as practicable.
On 1-5-1960, the Bombay State was bifurcated into
Gujarat and Maharashtra. On 1-5-1960, a circular was
issued by the Gujarat Government adopting the rules, resolu-
tions, notifications etc. of the Bombay State. By a further
clarificatory resolution dated 27-5-1960 Gujarat Government
provided that nothing contained in the circular dated 1-5-
1960 shall apply to appointments of officers, authorities or
persons which may be made by the Government on or after
1-5-1960. During the year 1959-62,.no direct recruitment
was made but many promotions were effected. The Writ Peti-
tion filed by the direct recruits was dismissed by a learned
Single judge of the High Court. The Division Bench of the
High Court, however, accepted the appeal of the con-
testing respondents.
In an appeal by Special Leave the appellants contended:
1. The expression ’as far as practicable’ in
the resolution of 1959 provides a sensible
safety valve. Therefore, the rule is neither
exception-proof nor abstractly absolute but
realistic and flexibly true to life.
2. The mandate of equality in Articles 14 and
16 does not require pushing down the promotees
in the seniority list in the fact of their
actual service and legal appointment.
3. Rotation is not implicit in quota. Quota
without rotation is also reasonable and
constitutional as much as quota with rotation.
The choice, both being permissible and fair,
is left to the Administration.
4. The contesting respondents contended
(i) The rule of law is the enemy of arbitrary
absolutism and the discretion to disobey is a
doctrine of despotism and cannot be sub-
scribed to by a Court.
1038
(ii) ’As far as practicable does not permit
the State to deviate from it. It merely
authorises provisional variations or ad-hoc
solutions or emergency arrangements to meet
the difficulty of the Administration without
making formal or regular appointments to the
posts in question.
(iii) Rotational system is implicit in quota.
(iv)-Any deviation from rotational system is
violative of Articles 14 and 16 of the Con-
stitution.
Allowing the appeal held:
1. The State in tune with the mandate of the
quota rule must make serious efforts to
secure hands to fill half the number of
vacancies from the open market. If it does
not succeed despite honest and serious
effort, it qualifies for departure from the
rule. If it has become non-feasible, imprac-
ticable to get the requisite quota of direct
recruits having done all that it could, it was
free to fill the Post by promotion of suit-
able hands, if the filling up of the vacan-
cies was administratively necessary and could
not wait. The sense of the rule is that as
far as possible the quota system must be kept
up and if not practicable promotees in place
of direct recruits or direct recruits in place
of promotees may be inducted applying the
regular procedures without suffering the seats
to lie indefinitely vacant.
[1050 F-H, 1051 A]
2. The Government sent a requisition for 12
posts of Deputy Collectors to the Gujarat
Public Service Commission as early as in
October, 1960. On account of commission having
raised various queries including require-
ments of adequate knowledge of Marathi and
Gujarati, the examination could not be held
during the years 1960-1962. The expla-
nation given by the Government is prima facie
good and not rebutted as got up. Since
the Government took active steps in the
direction of direct recruitment, the excep-
tion to the Government Resolution comes into
operation. The Government in the present case
did all that it could. [1051 A-F]
3. Quota is not inter-locked with Rota. [1052
A]
(a) The quota system does not necessitate the
adoption of the rotational rule in practical
application. Many ways of working out
’quota’ prescription can be devised of which
rota is certainly one.
(b) While laying down a quota when filling up
vacancies in a cadre from more than one
source, it is open to Government. subject to
tests under Art. 16, to choose ’a year’ or
other period of the vacancy by vacancy
basis to work out the quota among the sources.
But once the Court is satisfied, examining for
constitutionality the method proposed, that
there is no invalidity, administrative
technology may have free play in choosing one
or other of the familiar processes of imple-
menting the quota rule. We, as Judges, cannot
strike down the particular scheme because it
is unpalatable to forensic taste.
(c) Seniority, normally, is measured by length
of continuous. officiating service--the actual
is easily accepted as the legal. This does
not preclude a different prescription, consti-
tutionality tests being satisfied.
(d) Promotees regularly appointed during
period 1960-62 in excess of their quota, for
want of direct recruits can claim their whole
length of service for seniority.
(e) Promotees appointed in 1963 and onwards in
excess of their quota should be pushed down
and absorbed in vacancies in their quota
during subsequent years. [1057 E-H, 1058 A-C]
1039
Mervyn Coutindo & Ors. v. Collector of Customs, Bombay
[1967] 3 S.C.R. distinguished, Badami v. Stale of Mysore &
Ors. [1976] 1 S.C.R. 815 distinguished, Govind Dattaray
Kelkar and Ors. v. Chief Controller of Imports and Exports &
Ors. [1967] 2 S.C.R. 29 distinguished and doubted.
S.G. Jaisinghani v. Union of India [1967] 2 S.C.R.
703 distinguished.
Bishan Sarup Gupta v. Union of India [1975] Supp. S.C.R.
491, Union of India v. Bishan Sarup Gupta [1975] 1 S.C.R.
104 and A.K. Subbraman & Ors. v. Union of India [1975] 2
S.C.R. followed.
The Court directed the Government to draw up expedi-
tiously a fresh seniority list in the light of the observa-
tions made in the Judgment. [1058 H]
Obiter: (Lengthy legal process, where administrative
immediacy is the desideratum is a remedy worse than the
malady. The fact that the present case has taken around 5
working days for oral arguments is a sad commentarY on the
legal system. To streamline and to modernise Court manage-
ment is a cinderella subject in India, as elsewhere. We too
have miles to go for law and justice to meet).
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 463/76.
(Appeal by Special Leave from the Judgment and Order
dated 11/12-11-1975 of the Gujarat High Court in L.P.A. No.
113/74).
D.V. Patel, P.H. Parekh and Miss Manju Jetley for the
Appellants.
M.C. Bhandare, S.P. Nayar and M.N. Shroff, for the,
State of Gujarat.
R. K, Garg and S.C. Agarwala, for Respondents Nos. 5-6
and 8--11.
M.N. Shroff, for the State of Maharashtra.
The Judgment of the Court was delivered by
KRISHNA IYER, J.--This is a typical ’service’ appeal, by
special leave, which prompts the topical question: Is lit
Wiser national policy to process disputes regarding seniori-
ty, promotion, termination and allied matters affecting the
public services, through the docket-bound, formalised,
methodology of the judicature adopting its traditional,
time-consuming, tier-upon-tier system and handicapped by
absence of administrative expertise, accessibility to criti-
cal information and other limitations on the mode and extent
of relief, or, alternatively, through built-in, high-pow-
ered, but credibility-wise less commanding, agencies of
composite skills and processes and flexible remedial juris-
dictions ? ’Justice and Reform’ is a recurrent interroga-
tion.
Our civil services, if only the static and stratified
system were transformed and the men properly oriented and
activated, may well prove equal to the dynamic challenges of
our times but for the pathetic phenomenon of numbers of
officials being locked in long forensic battles. This
litigative pathology of the members of the public services
deplorably diverts the undivided energies, sensitive under-
standing and people-based disposition demanded of them for
the fulfilment of the Nation’s Tryst with Destiny through
implementation of massive
1040
and multiform developmental plans. Hopefully, constructive
thinking on impregnable, competent and quick-acting (but not
derobed or devalued) intra-structures and procedures for
improving and accelerating the system of justice to the
public services is currently under way.
Now to the merits. The briefs are big and the arguments
long, but the factual matrix and the legal conflicts lend
themselves to be condensed without detriment. The competi-
tion between two categories of members borne on the cadre of
Deputy Collectors of the State of Gujarat viz., direct
recruits and in-service promotees, on the issue of seniority
inter-se, with its futuristic career overtones, is the
crunch question in this civil appeal. The grey area of
’service jurisprudence’ covered before us encompasses sever-
al decisions and if ’by good disputing shall the law be
well known’, there has been so much disputation of learned
length at the bar that the legal points should have been
more pellucid than the precedents read and re-read made us
feel. ’The aid of the purifying ordeal of skilled argument’
when too lapidary and finical reaches a point of no return,
despite Megarry J to the contrary in Cordell v. Second
Clanfield Properties Lid. (1).
Seven Deputy Collectors, arriving by direct recruitment
in, and after 1963, claim to be ahead, in the gradation
list, of their more numerous counterparts former mamlatdars,
whose promotional incarnation as Deputy Collectors, dates
back to the years 1960-63. The title of these younger incum-
bents to be eider in the Civil List is primarily founded on
a basic Resolution of Government of July 30, 1959 regulating
recruitment to the Deputy Collectors’ cadre by the ’then
Bombay State adopting a quota basis. The Gujarat State,
carved out of Bombay and formed on May 1, 1960, continued
the system; and so, simplistically presented, the fate of
the ’seniority’ struggle critically turns on the construc-
tion the Bombay Resolution of 1959 bears, the rival versions
having been alternately frowned upon or favoured at the
original and appellate docks of the High Court. There are
other matters of moment debated at the bar and we will pass
on some of them at later stages. In administrative and
legal terms, this case is the projection of the common
rivalry for promotional positions between fresh, young
recruits and old, seasoned promotees, between alleged excel-
lence of talented youth and tasted experience of mellowed
age. Sympathies may sway either way and reasons often
spring from sympathies.
To be captiously wise in retrospect may itself border on
vice. Even so, we are constrained to observe that when
government orders, as here, have the flavour of law and
impact upon the fundamental rights and equal opportunities
of citizens, they have to be drafted with the case that
legal orders deserves lest avoidable litigation should
thrive for no better reason than that administrative orders
or subsidiary legislation have been drawn up with a casual-
ness that betrays the skills of insoucience. Law must be
precise, simple, clear, comprehensive and
(1) [1968] 3 All E.R. Ch. Dn. 746.
1041
there is a duty on the law-maker at every level not to
injure the community by tengled webs of rules, orders and
notifications whose meaning is revealed only through tran-
scendental meditation or constant litigation. in a social-
istic pattern of society there is hardly any part of nation-
al life or personal life which is not affected by some legal
rule or other. When men have to look to the law from the
cradle to the grave, making of even subsidiary laws demands
greatest attention.
To begin with the legal beginning is best done with the
Bombay Government Resolution of 1959 after giving a thumb-
nail sketch of the relevant service structure and other
minimal particulars.
The composite Bombay State, for purposes of Revenue
Administration, had been divided into Divisions which were
separate units for promotional prospects, liability to
transfer etc., of deputy collectors. The routine source of
recruitment to these posts used to be mamlatdars who were
transferred as deputy collectors by promotion. As early as
1939, a different recruitment policy had been evolved for
picking suitable hands from the open market by direct nomi-
nation. The inevitable concomitant of a plurality of
recruitment categories is the evolution of a workable rule
of inter se seniority. So, by an order of 1941, the mode of
determining seniority between ’nominees’ and ’promotees’ was
settled. Service, for seniority purposes, so far as direct
recruits were concerned, was to run from the date of their
appointment on probation and, in the case of promotee offi-
cers, such service was to begin with promotion in substan-
tive vacancies, if continued without break. For reasons
obscure, the direct recruitment scheme of infusion of fresh
blood-to use the usual validating vascular metaphor--to
invigorate the Administration, hibernated from 1950 until
1959. However, the crucial government decision of July 30,
1959 not merely re-activated the mode of direct recruitment
but fixed the promotion in which recruitment from the two
sources was to be made, referred to conveniently as the
quota system. The heart of the debate before us is whether
a quota prescription, willy nilly, does postulate ex-
necessitate a rota process in practice. We may here read
the resolution itself:
Deputy Collector:
Recruitment of probationers
GOVERNMENT OF BOMBAY
REVENUE DEPARTMENT
Resolution No. RTC. 1157/99153-D
Sachivalaya, Bombay, 30th July 1959
Read-Government Resolution-No. 9313/45, dated the 6th Febru-
ary 1950.
Government Resolution No. 9313/45, dated the 24th July
1951.
1042
RESOLUTION:
Government had for sometime under consideration the
question of reviving the system of direct recruitment to the
cadre of Deputy Collectors. It has now been decided that in
the interest of administration, the revival of .that system
is quite necessary. Government is accordingly pleased to
cancel the orders contained in Government Resolution No.
9313/45, dated 6th February 1950 and those in Government
Resolution No. 9313/45, dated the 24th July 1951, in so far
as they relate to the recruitment of Bombay Civil Service
Executive Branch Deputy Collectors (Upper Division) and to
direct that, as far as practicable, 50 per cent of the
substantive vacancies occurring in the cadre with effect
from 1st January 1959 should be filled in by nomination of
candidates to be selected in accordance with the Rules
appended herewith.
x x x x x
By order and in the name of the Governor of Bombay,
G.L. Sheth
Secretary to Government"
We may also extract the portion from the’ annexed rules
of recruitment pertinent to our purpose:
"Appointment to the posts of Deputy
Collector shall be made either by nomination
or by promotion of suitable
Mamlatdars:
Provided that the ratio of appointment
by nomination and by promotion shall, as far
as practicable, be 50: 50."
The raw materials government proceedings needed for our
discussion will be complete if the 1941 Resolution also were
read at this stage:
"GOVERNMENT OF BOMBAY
Political & Services Department
Resolution No. 3283/34
Bombay Castle, 21st November, 1941.
x x x
RESOLUTION:
Government is pleased to direct that the following
principles should be observed in determining the seniority
of direct recruits and promoted Officers in the provincial
services (except the Bombay services of Engineers, Class
I)
(i) In the case of direct recruits appointed
substantively on probation, the seniority
should be determined with reference to the
date of their appointment on probation.
(ii) In the case of officers promoted to
substantive vacancies, the seniority should be
determined with reference to the (1 ) Date of
their promotion to the (2) substantive vacan-
cies (3) provided there has
1043
been no break in service prior to their con-
firmation in those vacancies.
By order and in the name of the Governor of Bombay
G.F.S. Collins
Chief Secretary to the Govt. of Bombay
Political and Services Department"
Flowing out of the fixation of the ratio between the two
species of recruits and having a bearing on the issue of
seniority is another Resolution of the Bombay Government
(continued during the relevant period in Gujarat also by
virtue of an omnibus circular of May 1, 1960) of February 3,
1960. This step became primarily necessary on account of
the Reorganisation of States and the abolition of Divisions.
The legal fiction of ’deemed dates of commencement of serv-
ice’ for the purpose of inter se seniority of personnel
drawn from different pre-Reorganisation States and from the
Divisions within the State on conversion of the deputy
collectors’ cadre into a State-wide one has been crystal-
lised in this rule of February 1960.
One more clarificatory proceeding of Government, dated
May 27, 1960 has loomed large in Shri Patel’s submissions,
especially the Explanation portion thereof and, in a sense,
it lends some push to the problematic conclusion. We there-
fore read the relevant Government Circular right here:
No. GSF-1060-F
Government of Gujarat
General Administration Department
Sachivalaya, Ahmedabad, 27th May 1960
CIRCULAR
Read: Government Circular No. GSF-1060, dated the 1st May
1960.
Doubts have arisen as respects the
directions given under Government Circular
No. GSF-1060 dated the 1st May,
1960 ...... To remove any doubt in that
behalf, therefore, Government is pleased to
direct that the following Explanation shall be
and shah be deemed always to have been added
to the said circular, namely--
Explanation :--Nothing herein shall apply
to appointments of officers, authorities or
persons or to the constitution of tribunals or
other bodies which may be made by Government
on or after the 1st May, 1960 and the condi-
tions of service of the officers, authorities
or persons appointed or the members of the
Tribunals or bodies so constituted.
By order and in the name of the Governor of Gujarat.
Sd/- V. Isvaran
Chief Secretary to the Government."
Reliance has been placed on the Explanation quoted above
to emancipate Government from compliance with the Bombay
rules
1044
regarding appointments of officers or their conditions of
service, an aspect we will expand, if needed. Prima facie,
while we agree that the new State is not bound by adminis-
trative directions of the parent State and may free itself
from it by appropriate steps, an unguided power is suspect
and a carte blanche in doing what Government fancies with
any of its servants is subversive of ordered societies. We
have no further probe to make into this Resolution in the
present case and leave it at that.
The fact of the matter is that during 1959--62, no
direct recruitments were made but many promotions were
effected. Afterwards, i.e., in 1963 and later, direct
recruits were appointed who, contrary to their legal aspira-
tion, were not assigned seniority over earlier promotees of
1960--63 vintage, having regard to the factual position. The
further hope that for post-1963 recruits, dates of appoint-
ment, and running of service with effect therefrom, on the
basis of a quota allocation and rota system telescoped into
it, proved a plain dupe in the seniority list prepared by
government. The doubly chagrined direct recruits moved the
High Court for relief, as stated earlier.
The anatomy, in outline, of the deputy collector’s cadre
in the Gujarat Government and the grievances of the writ-
petitioners (respondents before us) thus emerge. On a 50:50
basis the vacancies in the cadre are filled from two sources
viz., direct recruitment and promotion from among mamlat-
dars. Once appointed, their seniority gains saliency and
turns on length of service, and though no specific provision
to count commencement of service is made in the 1959 Resolu-
tion, it has been understood as set out in the 1941 Resolu-
tion earlier mentioned. The contesting respondents plead
for pushing down promotees, based on the strict roster
system of 1: 1 going by each vacancy and demur to taking the
year as a unit for adjustment of ratio. Which view should
prevail? Force, there may be, in the rival versions, indi-
vidual injustice there can be whichever view were accepted
and precedential pushes and pressures may also be brought
into play by either side if we surrender to scriptural
literality of decisions of this Court and miss the thrust of
the ratio therein. In a liner sense, and within the frame of
reference of leading precedents, each case has an individu-
ality and is a law unto itself.
Strictly speaking, the primary problem is one of fair
interpretation of the basic government Resolution of 1959,
illumined by the purposes and motivations of good government
and unravelling the implications embedded therein, against
the background of the administrative structure, service
pattern and seniority principles, prevalent contemporane-
ously, as gleaned from the records of the case. The milieu
aids the meaning although lawyer’s law leans heavily, even
lop-sidedly, on judicialized lexicography. Counsel natural-
ly took us through rulings bearing on the meanings of words
and canons of construction which merely re-stated time-
honoured principles and dictionary culls and did not make us
any the wiser in coming nearer to a resolution of the
conflict here. Likewise, arguments galore on the connota-
tion of the quota system of recruitment, with abstractions,
propositions and illustrations based on decided cases, were
addressed to us, although we ’came out by the same door as
in we went’ Common-
1045
sense is the first aid in the art of interpretation. The
only sure approach that judges make when confronted by
complexity in construction and necessity for rationalisation
is on the lines justice Cardozo frankly stated :(1)
"We may figure the task of the judge, if we please, as
the task of a translator, the reading of signs and symbols
given from without. None the less, we will not set man to
such a task, unless they have absorbed the spirit, and have
filled themselves with a love, of the language they must
read."
Two groups, the promotees who came from the lesser stations
of life and the direct recruits who have had better advan-
tages of higher education, fight for berths in the musical
chair. In such situations, while construing rules, sub-
conscious forces have to be excluded and objectification
must be attempted. Even so, the beautiful candour of
Benjamin Cardozo whispers to us that we judges
"are ... ever and always listening to the still small
voice of the herd, and are ever ready to defend and justify
its instructions and warnings, and accept them as the nature
results of our own reasoning. This was written, not of
judges specially, but of men and women of all classes. The
training of the judge, if coupled with what is styled the
judicial temperament, will help in some degree to emancipate
him from the suggestive power of individual dislikes and
prepossessions ." ( 2 )
Our effort in unlocking the meaning of the controversial
Government Resolution of July 1959 and of other official
notifications may inarticulately, minimally and unwittingly,
be moulded by these broad under-currents. Other facts
relevant for discussion of specific points urged and other
legal issues germane to the grounds of attack and defense
formulated by counsel may be filled in as and when those
points are taken up by us, instead of inartistically clut-
tering up or en massee lugging together many government
proceedings, sequences of events and clarification of
difficulties following on the division of Bombay into
Gujarat and Maharashtra, even at this preliminary stage.
The pivotal questions--one an interpretative exercise
and the other a facet of the fundamental right of equal
opportunity--around which revolve the other arguments may
first be set out: (1) If the Gujarat Government has, by an
administrative guideline or statutory rule directed that
open market recruits and in-service promotees will be ap-
pointed on a 50: 50 basis with the qualification that this
principle shall be adhered to, as far as practicable, is
Government free to ignore such a rule of conduct as if it
were no inflexible directive, violation of which spells
illegality on the appointments made, or does this clause
obligate the State flatly to try and comply, but if surprise
circumstances or insurmountable exigencies arise which make
recourse to the rule impracticable, deviate from it without
the risk of court branding such deviant appointments void?
In short, how far can
(1) Benjamin N. Cardozo: The Nature of the Judicial Proc-
ess: Yale University Press, P. 174.
(2) Cardozo (supra) pP. 175-176.
1046
administrative pragmatics influence, without invalidation,
the recruitment mechanics where a narrow rider providing
for imponderable exigencies written into the rule, provides
for departure ? (2) Assuming there has to be a proportion
of 50-50 as above indicated, how is it to be worked out ? On
a rotational basis of the direct recruits inexorably getting
the first, the third, the fifth and such like vacancies or
as an entitlement to half the total number of vacancies
arising in the cadre in a particular year or other conven-
tional period ? Again, does it further imply an imperative
obligation on the part of Government to keep untilled all
vacancies allocable to direct recruits so that they may be
available to be filled up in later years with retroactive
repercussions and, if such ear-marked posts are, for admin-
istrative exigencies, filled regularly, not ad hoc, in sub-
stantive vacancies, not ex cadre posts by selection and
promotion, they must be treated as provisional nationally
filled by direct recruits who may arrive long later? And
consequentially, in counting seniority, reckon their (i.e.,
direct recruits) deemed dates of entry as prior to those
actually officiating promotee deputy collectors by importing
a sort of legal fiction that the direct recruits must be
allowed to count service from the date when the entitled
vacancy for direct recruits arose? May be a diffusive,
digressive discussion can be obviated and the focus turned
on specific issues if we start with a formulation of the
major points urged by Sri D. V. Patel, counsel for the
appellant, hotly controverted, of course, by shri R.K. Garg
for the contesting respondents. Elimination of the minor
clears the ring for the major bouts.
The appellants represent the group of promotee deputy
collectors and the contestants are deputy collectors di-
rectly recruited. The Gujarat State lines up with the
former, more or less.
We now set out sequentially the six-point propositional
formulation made by Shri Patel, for the appellants, although
salience suggests the third item as first--and, if .we
anticipate our conclusion, the last in importance.
The cornerstone of the case, as noted earlier, is the
Bombay Government’s Resolution of 1959 fixing the proportion
between direct recruits and promoted candidates, with an
emergency escape route to jump out of the fixed ratio. Shri
Patel’s first point is that once the new State of Gujarat
was formed, mere administration proceedings of he former
government of Bombay State ceased to be in force proprio
vigore unless Gujarat adopted or continued or otherwise
modified them. subject to statutory regulations and consti-
tutional limitations. The State of Gujarat had plenary
executive power, granted by the Constitution, to fill up
administrative posts in any manner it chose. The clarifi-
catory government Resolution of May 27, 1960 issued by the
Gujarat Government becomes significant in this context as it
contains in explanation which specifically provides that the
adoption of the Bombay Government Resolution of 1959 does
not, in any way, fetter the Gujarat Government in making
appointments of officers on or after May 1, 1960 nor does
the said 1959 Resolution in any manner restrict the condi-
tions of service of such officers. Therefore, it is per-
fectly oven to the Gujarat Government to make fresh appoint-
ments to the posts of Deputy Collectors untremmelled by the
ratio or other
1047
restrictive conditions which may be read into the Bombay
Government Resolution of 1959. In this view his clients
cannot suffer even if the Bombay Resolution has been
breached. (2) Assuming that point No. 1 has no force, Shri
Patel submits that the various government Resolutions of the
Bombay and Gujarat Governments referred to by the parties
are purely administrative directions and cannot have the
binding status of statutory rules. Therefore, no rights can
be derived therefrom by the direct recruits or potential
direct appointees and breach of such directives or rules
cannot invalidate appointments made. (3) On the further
assumption that point no. (2) above is bereft of substance
and the Government Resolutions referred to have statutory
character, the very terms of the 1959 Government Resolution
provide a sensible safely value, wisely anticipatory when we
remember the pragmatic considerations and administrative
exigencies that the slow-moving apparatus of the Government
of a newly formed State has to face or be puzzled with. The
1959 Resolution which is the ’rounding document’ of the
rights of the direct recruits itself states that the propor-
tion between the two categories is to be applied ’as far as
practicable’. Therefore, the rule is neither exception-proof
nor abstractly absolute but realistic and flexible true to
life. Rigidly to read the rule is surely to misread it.
Since it contemplates special situations of impracticability
it is but right for the Court so to construe the Resolution,
in the light of the explanation offered by the State for
non-recruitment directly until 1963, as to make it adminis-
tratively viable and reasonably workable If such an imagina-
tive and informed judicial insight plays upon the rule, the
difficulties in making immediate recruitments from the open
market by the Public Service Commission may sufficiently
absolve the State from the supposed violation of Government
Resolution of 1959 So viewed, the orders of promotion of the
appellants are in order and unassailable. (4) & (5) The
mandate of equality ensconced in Arts 14 and 16 cannot
handcuff justice by pushing down the promotees if the Sen-
iority List in the face of their actual service and legal
appointment. The attack based on Art. 16 that the roster
method of filling up posts is integral to the quota system
is baseless. Quota without rotate is also reasonable and
constitutional as much as quota plus rota. The choice, both
being permissible and fair, is left to the Administration,
the Court not ferretting or dissecting to detect deadly
traces of discrimination or unreasonableness. (6) The
assignment of "deemed dates’ of commencement of service is
not unreasonable but is often adopted by Governments when
integrating into a common cadre officers drawn from differ-
ent States or Departments or divisions. Novel compulsions
demand novel solutions and law accepts life’s expediency
save where the public Vower has been obliquely exercised or
unreasonableness is writ large on the face of the process.
Such a stigma being absent, the promotees cannot be dis-
lodged from their notches in the ladder.
We are mercifully absolved from making the discussional
journey over a long mileage covering the poly-pointed formu-
lation since two essential issues may virtually be decisive
of the case. Both sides have agreed to this abbreviation
and the other grounds have dropped out of effective contest
in the long course of arguments. Enough upto the day!
1048
It is fair to state even at this stage that be the
Bombay G.O. of 1959 merely administrative or really statuto-
ry, both the learned Single Judge and the Division Bench
have head the Gujarat State bound by it. The rule of law is
tile enemy of arbitrary absolutism and the discretion to
disobey is a doctrine of despotism and cannot be subscribed
to by a Court merely because the state chooses to label a
rule or conduct anecting the rights of others an administra-
tive regulation. In a constitutional order governed by the
rule of law, whim or humour, even if benignly motivated,
masquerading as executive discretion is anathema to law.
When power is vested under the Constitution or other statute
in the State to promulgate rules of conduct attracting oth-
ers, such rules must ordinarily govern the State and subject
alike. When there are service rules affecting the public
services, they may either be in exercise of the executive
power of the State under Art. 162 or rules with legislative
colour framed under the proviso to Art. 309 of the Constitu-
tion. It is fair for the Administration in a democratic
system employing expanding armies of government servants,
whose lot in life and career prospects will be governed by
recruitment, conduct and disciplinary rules, to respect,
beyond suspicion, the rule of law by exercising statutory
power as distinguished from executive power, even where it
has an option. Of course, in exceptional situations, or
sudden exigencies and for new experiments to be tried, the
framing of statutory rules under Art. 309, proviso, may be
postponed and executive orders immediately promulgated. The
best judge is the State Government exercising its power
justly and efficiently. For the art of government is beset
with the perils of a journey through life’s jungle and
textbook prescriptions can prove ruinous. We may point to
another problem. It has often been difficult to discover
whether a particular set of rules is framed under the provi-
so to Art. 309 or, in mere exercise of Art. 162, although it
is desirable that the State makes it explicit. We are,
however, not called upon to investigate this perplexing
aspect because, as stated earlier, the High Court has
held that the State is bound by the Bombay G.O. of 1959.
Counsel for the appellants, Shri Patel, and counsel for the
State, Shri Bhandare, have rightly acquiesed in that posi-
tion and proceeded with their arguments on that footing.
This point (which is the first) therefore, does not need our
pronouncement.
The other points, pedentically capable of being sepa-
rately dealt with, highlight what we have earlier indicated
as the two telling questions of law that settle the outcome
of the appeal. We will seek the tight of common sense to
solve them and later test the conclusions with reference to
binding rulings of this Court.
The first question that falls for considerations, there-
fore, is as to whether the 50:50 ratio ’as between direct
recruits and promoted hands is subject to the saving clause
’as far as practicable’. Can Government vary the ratio ?
Ordinarily no. Is it permissible at all ? Probably,
yes, given proof of the government’s case that it was not
practicable for the State to recruit from the open market
qualified persons through the specialised agency of the
Public Service Commission. The factual basis for this plea
of extenuation will be examined presently but, according to
Shri R.K. Garg, appearing for the contestants,
1049
even if the alibi of the State were true, it furnished no
legal justification for deviation from the application of
the rule. He interpreted, ’as far as practicable’ occurring
in the Government Resolution, in a very different way and
submitted that to adopt the appellant’s view on this aspect
was to subvert the substance and nullify the conscience of
the binding Bombay Resolution of 1959.
Shri Garg argued that the language of the critical G.O.
was peremptory, that for the high purpose of improving
administrative efficiency a balanced mix of old experience
(gained by long service) and young abilities (proved by
competitive selection) was hit upon as half-and-half from
each category and the Court could not fall for any construc-
tion of the words ’as far as practicable’ which would frus-
trate this goal of overall efficiency unless the semantic
search left no other option. Far from there being no
alternative interpretation, the benignant purpose of the
Resolution pressed forward to a reasonable meaning that ’as
far as practicable’ related not to the tampering with the
proportion of the mix but in permitting provisional varia-
tions or ad hoc solutions or emergency arrangements to meet
a difficulty of the Administration without making formal or
regular ’appointments’ to the posts meddling irrevocably
with the proportion in the prescription. Later, when direct
recruits were secured, they would be entitled to their
quota vacancies and commencement of seniority from the date
of their appointment.
Logomachic exercises are the favourite of the forensic
system but too barren to fascinate the Court and too luxuri-
ous, in our penury of time to indulge. Should we chase
decisions and dictionaries and finer verbal nuances with
explorative industry ? The sense of the setting, the ’why’
the author whispers through his words and the warning ’not
this. not this’ that the objective understanding of the
totality of the socially relevant scheme instils--these
light up the interpretative track alone the criss-cross
woods of case-law and lexicons. Led by that lodestar, we
will eye the situation afresh. In doing so, we must first
set down the meaning Shri Patel suggests, and Shri Bhandare
supports, and the manner in which these appellants claim
that their appointments and seniority are sequestered by the
saving words ’as far as practicable’.
What does ’as far as practicable’ or like expression
mean, in simple anglo-saxon ? Practicable, feasible, possi-
ble, performable, are more or less interchangeable. A
skiagraph of the 1959 Resolution reveals that the revival of
the direct recruitment, method was motivated by ’the inter-
est of administration’--an overriding object which must cast
the benefit of doubt if two meanings with equal persuasive-
ness contend. Secondly, going by the text, 50% of the
substantive vacancies occurring in the cadre should be
filled in by selection in accordance With appended Rules.
’As far as practicable’ finds a place in the Resolution and
the Rule. In the context what does it qualify ? As far as
possible 50% ? That is to say, if 50% is not readily forth-
coming, then less ? Within what period should be imprac-
ticabilitv to felt ? What is the content of impracticabi-
litv’ in the given administrative ’setting ? Contrariwise,
can you not contend that impracticability is
1050
not a license to deviate, a discretion to disobey or a
liberty with the ratio ? Administrative tone is too impor-
tant to be neglected but if sufficient numbers to fill the
direct recruits’ quota are not readily available, substan-
tive vacancies may be left intact to be filled up when
direct recruits are available. Since the exigencies of
administration cannot wait, expediency has a limited role
through the use of the words ’as far as practicable’.
Thereby Government is authorised to make ad hoc appointments
by promotion or by creation of ex cadre posts to be filled
up by promotees, to be absorbed in the 50% portion falling
to the promotional category in later years. In short ’as
far as practicable means, not interfering with the ratio
which fulfils the interest of administration, but flexible
provision clothing government with powers to meet special
situations where the normal process of the government Reso-
lution cannot flow smooth. It is a matter of accent and
import which affords the final test in the choice between
the two parallel interpretations.
We have given close thought to the competing contentions
and are inclined to the view that the former is the better.
Certainly, Shri Garg is right that the primary purpose of
the quota system is to improve administrative efficiency.
After all, the Indian administration is run for the service
of the people and not for opportunities for promotion to a
few persons. But theories of public administration and
experiments in achieving efficiency are matters of govern-
mental policy and business management. Apparently, the
State, having given due consideration to these factors,
thought that a blended brew would serve best. Even so, it
could not ’have been the intention of government to create
artificial situations, import legal fictions and complicate
the composition of the cadre by deviating from the natural
course. The State probably intended to bring in fresh talent
to the extent reasonably available but not at the sacrifice
of sufficiency of hands at a given time nor at the cost of
creating a vacuum by keeping substantive vacancies unfilled
for long. The straight forward answer seems to us to be
that the State, in tune with the mandate of the rule, must
make serious effort to secure hands to fill half the number
of vacancies from the open market. If it does not succeed,
despite honest and serious effort, it qualifies for depar-
ture from the rule. If it has become non-feasible, imprac-
ticable and procrastinatory to get the requisite quota of
direct recruits, having done all that if could, it was free
to fill the posts by promotion of suitable hands if the
filling up of the vacancies was administratively necessary
and could not wait. Impracticable cannot be equated with
’impossible’--nor with unplatable--and we cannot agree with
the learned judges of the High Court in construing it as
colossally incapable of compliance. The short test,there-
fore, is to find out whether the government, in the present
case, has made effective efforts, doing all that it reasona-
bly can, to recruit from the open market necessary numbers
of qualified hands. We do not agree that the compulsion of
the rule goes to the extreme extent of making government
keep the vacancies in the quota of the direct recruits open
and to meet the urgent needs of administration by creating
ex-cadre posts or making ad hoc appointments or resorting to
other out-of-the-way expedients. The sense of the rule is
that as far as possible the quota system must be kept up
and, if not prac-
1051
ticable, promotees in the place of direct recruits or direct
recruits in the place of promotees may be inducted applying
the regular procedures, without suffering the seats to lie
indefinitely vacant..
The next question then is as to whether government has
satisfied the Court that efforts had been made to secure
direct recruits and failure to secure such hands is the
explanation for resort to. promotions of mamlatdars. The
reason for delay in making appointments of direct recruits
during the year 1960, 1961 and 1962 has been set out by the
State before us. It appears that a requisition for 12 posts
of deputy collectors was sent to the Gujarat Public Service
Commission on October 31, 1960 but the Commission raised
some linguistic queries ’regarding the requirement of ade-
quate knowledge of Marathi and Gujarati by the candidates.
Anyway, various points were raised from time to time in the
correspondence between the Commission and Government and,
eventually, the ’former held a competitive examination for
the posts of deputy collectors in July 1962, declared the
results in January 1963 and sent up ,its recommendations in
the following February. Government issued orders for ap-
pointment of the candidates so selected by the Public Serv-
ice Commission in May 1963. This is a working explanation,
prima facie good and not rebutted as got up. If it is not
necessary for the State Government to have recourse to
recondite processes of ad hoc appointments and creation of
ex cadre posts and if government has taken active steps in
the direction of direct recruitment, the exception to the
Government Resolution comes into operation. Direct recruit-
ment ordinarily involves processing by the Public Service
Commission, an independent body which functions at its own
pace. If Government had excluded the posts of Deputy Col-
lectors from the purview of the Public Service Commission
with a view to achieve expeditious recruitment, it might
have been exposed to the criticism that the normal method
was being by-passed with oblique motives. Having looked at
the matter from a pragmatic angle, we are ,convinced that
the government did what it could and need not have done what
it ordinarily should not have done. Therefore the con-
clusion is inevitable--although Shri Garg’s argument to the
contrary is ingenious--that the State had tried, as far as
practicable, to fill 50% of the substantive vacancies from
the open market, but failed during the years 1960-62 and
that -therefore it was within its powers under the relevant
rule to promote mamlatdars who, otherwise, complied with
the requirements of efficiency.
Now we move on to the more thorny question of quota and
rota. Shri Garg urges that the rotational mechanics is
implicit in the quota system and the two cannot be delinked.
To shore up this submission he relies on what he propounds
as the correct command of the rule of ’quota’. In his view,
1: 1 simply means one direct recruit or promotee followed,
vacancy by vacancy, by the other. To maintain ’the propor-
tion in compliance with the quota fixture, Government must
go by each post as it falls vacant and cannot circumvient
this necessity by year-war reckoning of vacancies and keep-
ing up the ratio. The counter-view put forward by Shri
Parekh, for the appellant, is that
338SC1/76
1052
quota and rota are not indissolubly wedded and are separate
and separable. In the present case, according to him it is
an error to import ’rota’ where the rule has spelt out
only ’quota’ as a governing principle. The Usual practice,
sanctioned by rulings of this Court,is to go by the year as
a unit for working out the quota.
Here a again we are not disposed to hold, having special
regard to the recent decisions of this Court cited before
us that ’quota’ is so the recent decisions of this where the
former is expressly prescribed, interlocked with ’rota, that
where the former is expressly prescribed, the latter is
impliedly inscribed. Let us logicise a little. A quota
necessarily postulates more than one source of recruitment.
But does it demand the manner in which each source is to be
provided for after recruitment, especially in the matter of
seniority ? Cannot quota stand independent of rota ? You
may fix a quota for leach category but that fixes the entry.
The quota methodology may itself take many
forms--vacancy-wise ratio, cadre composition-wise pro-
portion period-wise or numberwise regulation. Myriad ways
can be conceived of Rotational or roster system is a com-
monly adopted and easily understood method of figuring out
the placement of officers on entry. It is not the only mode
in the code and cannot be read as an inevitable consequence.
If that much is logical, then what has been done here is
legal. Of course, Shri Garg’s criticism iS that mere ’qu-
ota’ is not viable without provision for seniority and, if
nothing more is found in the rule, the quota itself must be
understood to apply to each post as and when it falls to be
filled. If exigencies of administration demand quick post-
ing in the vacancy and one source (here, direct recruit-
ment) has gone dry for a while, then the proper course is to
wait for a direct recruit and give him notional date of
entry as of the quota vacancy and manage to keep the wheels
of government moving through improvised promotions, express-
ly stripping such ad hocist of rights flowing from temporary
occupancy. We have earlier dealt with the same submission
in a slightly different form and rejected it. Nothing more
remains to be said about it.
What follows and matters on entry into service is seniori-
ty which often settles the promotional destiny of the var-
ious brands of incumbents. Naturally, the inter se struggle
turns how best to bend the rules to one’s good account.
Shri Garg criticised the thoughtways apparent in the argu-
ment, backed by some rulings, that, quota being delinked
from rota, annual intake is the unit for adjusting the
seniority among candidates from the two sources. This is an
innovation dehors the rule, he says. We do not think so.
The question is not whether the year being taken as the unit
is the only course but whether there is anything in the rule
prescribing Government taking it as the unit or prescribing
some other specific unit. It is obvious that the Resolution
of 1959 is silent on how to allocate or reckon the quota as
also on how to compute ’seniority and Government has a good
alibi for taking the year as the unit and length of continu-
ous service as determining seniority. The first is evident
from the .reading of the 1959 Resolution in the light of
some ruling of this Court and the second from the 1941
Resolution. Moreover, there is nothing in the Resolution of
1959 preventing Government from treating a year as the unit.
1053
We therefore reach the following conclusions:
1. The promotions of mamlatdars made by
Government between 1960 and 1962 are saved
by the ’as far as practicable’ proviso and
therefore valid, Here it falls to be noticed
that in 1966 regular rules have been flamed
for promotees and direct recruits flowing into
the pool of Deputy Collectors on the same
quota basis but with a basic difference. The
saving provision ’as far as practicable’ has
been deleted in the 1966 rules. The conse-
quence bears upon seniority even if the year
is treated as the unit for quota adjustment.
2. If any promotions have been made in excess
of the quota set apart for the mamlatdars
after rules in 1966 were made, the direct
recruits have a legitimate right to claim that
the appointees in excess of the allocable
ratio from among mamlatdars will have to be
pushed down to later years when their promo-
tions can be regularised by being absorbed in
their lawful quota for those years. To sim-
plify, by illustration, if 10 deputy collec-
tors’ substantive vacancies exist in 1967 but
8 promotees were appointed and two direct
recruits alone were secured, there is a clear
transgression of the 50: 50 rule. The redun-
dancy of 3 hands from among promotees cannot
claim to be regularly appointed on a permanent
basis. For the time being they occupy the
posts and the only official grade that can be
extended to them is to absorb them in the
subsequent vacancies allocable to promotees.
This will have to be worked out down the line
wherever there has been excessive representa-
tion of promotees in the annual intake. Shri
Parekh, Counsel for the appellants has
fairly conceded this position.
3. The quota rule does not, inevitably, invoke
the application of the rota rule. The impact
of this position is that if sufficient number
of direct recruits have not been forthcoming
in the years since 1960 to fill in the ratio
due to them and those deficient vacancies
have. been filled up by promotees, later
direct recruits cannot claim ’deemed’ dates
of appointment for seniority in service with
effect from the time, according to the rota or
’turn, the direct recruits’ vacancy arose.
Seniority will depend on the length of contin-
uous officiating service and cannot be upset
by later arrivals from the open market save to
the extent to which any excess promotees may
have to be pushed down as indicated earlier.
These formulations based on the commonsense understand-
ing of the Resolution of 1959 have to be tested in the light
of decided cases. After all, we live in a judicial system
where earlier curial wisdom, unless competently over-ruled,
binds the Court. The decisions cited
1054
before us start with the leading case in Mervyn Coutindo &
Ors. v. Collector of Customs, Bombay(1) and closes with the
last pronouncement in Badami v. State of Mysore & Ors. (2).
This time-span has seen dicta go zigzag but we see no diffi-
culty in tracing a common thread of reasoning. However,
there are divergencies in the ratiocination between Mervyn
Coutindo (Supra) and Govind Dattaray Kelkar & Ors. v. Chief
Controller of Imports and Exports & Ors.(3) on the one hand
and S.G. Jaisinghani v. Union of India(4) .Bishan Sarup
Gupta v. Union of India,(5) Union of India & Ors. v. Bishan
Sarup Gupta(6) and A.K. Subbraman & Ors. v. ’Union of
India(7) on the other, especially on the rota system and the
year being regarded as a unit, that this Court may one day
have to harmonize the discordance unless Government wakes up
to the need for properly drafting its service rules so as to
eliminate litigative waste of its servants’ energies.
In Mervyn Coutindo the validity of the rotational system
as applied in fixing the seniority inter se between promo-
tees and direct recruits fell for decision in the context of
the specific rule applicable to Customs’ appraisers. One of
the principles in the circular which contained the rules
related to the comparative seniority of the two categories.
’It provides’, says the Court in summarizing the rule,
"that relative seniority of direct re-
cruits and promotees shah be determined ac-
cording to the rotation of vacancies between
direct recruits and promotees which shall be
based on the quota of reservation for direct
recruitment and promotion respectively in the
recruitment rules. It was further explained
that a roster should be maintained based on
the reservation for direct recruitment and
promotion in the recruitment rules. Where,
for example, the reservation for each method
is 50 per cent, the roster will run as fol-
lows(1) promotion, (2) direct recruitment, (3)
promotion, (4) direct recruitment, and so on.
Appointments should be made in accordance
with this roster and seniority determined
accordingly. A question has been raised
whether the circular of 1940 to which we have
already referred survived after this circular
of 1959; but in our opinion it is unnecessary
to decide that question, for the circular of
1959 itself lays down that seniority shall be
determined accordingly, i.e. in accordance
with the rotational system, depending upon the
quota reserved for direct recruitment and
promotion respectively. It is this circular
which, according to the respondent, has been
followed in determining the seniority of
Appraisers in 1963".,
In the face of such a plain directive in the relevant rule
regarding relative seniority for the solution of the problem
that arises before us where such a seniority provision is
absent and the relevant seniority
(1) [1966] 3 SCR 600. (2) [1976] 1 SCR 815.
(3) [1967] 2 SCR 29. (4) [1967] 2 SCR 703.
(5) [1975] Supp. SCR 491. (6) [1975] 1 SCR 104.
(7) [1975] 2 SCR 979.
1055
provision is different, Mervyn Coutindo (supra) cannot be of
any assistance. That case is authority for the proposition
it decides in the matrix of the special facts and rule
therein. In view of the words of the Circular ’that senior-
ity as between direct recruits and promotees should be
determined in accordance with the roster which has also been
specified ... the inextricable interlinking between quota
and rota springs from the specific provision rather than by
way of any general proposition. Mervyn Coutindo (Supra)
cannot therefore rescue the respondents. Nor does the refer-
ence to a ’service’ being divided into two parts, derived
from two sources of recruitment, help Shri Garg’s clients.
The rule of ’carry forward’ struck down in T. Devadasan v.
Union of India & Anr.(1) has no relevance ,to a situation
where the whole cadre of a particular service is divided
into two parts. Apart from the fact that it is doubtful
whether Devadasan’s case survives State of Kerala v.N.M.
Thomas & Ors. (2) there is no application of the ’carry
forward’ rule at all in fact-situations where two sources of
recruitment are designated in a certain proportion and
shortfalls occur in the one or the other category. In such
a case, what is needed is conformity to the prescription of
the proportion and no. question of carrying anything forward
strictly arises. It is true that Mervyn (Supra) does not
support the year by year intake as the yardstick; but the
reason is obvious--the rule is specific.
Kelkar (Supra) also dealt with the ratio prescribed as
between direct recruits and promotees. Many grounds of
attack were levelled there, one of which was that the rota-
tional system would itself violate the principle of equal
opportunity enshrined in the Constitution (Art. 16(1) ).
The Court repelled this contention. Of course, promotions
made on an ad hoc basis confer no rights to the posts on the
appointees, as was clearly pointed out in that decision. In
the instant case it is common ground that the appointments
are not on a purely ad hoc basis but have been regularly
made in accordance with the rules to fill substantive vacan-
cies except that the promotees have exceeded their quota,
direct recruits being unavailable. Kelkar (supra) stands
on a different footing, and hardly advances the position
advanced by Shri Garg.
Jaisinghani (Supra) which has had a die-hard survival
through Bishan Sarup Gupta v. Union of India(3) and Union of
India & Ors. v. Bishan Sarup Gupta(4) (if one may refer to.
the two cases flowing out of Jaisinghani (supra) in that
fashion), has been referred to by both sides at the bar. It
was relied on by Mr. Garg for the strong observation of
Ramaswami, J. that the absence of arbitrary power is the
first essential of the rule of law upon which our constitu-
tional system is based. He has also drawn attention .to the
suggestion made in that decision ’to the’ government that
for future years the roster system should be adopted by
framing an appropriate rule for working out the quota be-
tween direct recruits and the promotees ...... ’. We may
straightway state that our Constitutional system is very
allergic to arbitrary power but there is nothing arbitrary
made out in the present case against the government. The
second observation in
(1) [1964] 4 SCR 680. (2) [1976] 1 SCR 906.
(3) [1975] Supp. SCR 491. (4) [1975] 1 SCR 104.
1056
Jaisinghani (Supra) is of a suggestion that for future years
the roster system linking up quota with rota, may well be
adopted by government. It is not the interpretation of any
existing rule nor laying down of a rule of law, so much so
we cannot have any guideline therefrom to apply to the
present case. The Government could no doubt, if it so
thought expedient, frame a specific rule incorporating the
roster system so as to regulate seniority. But we should
not forget that seniority is the manifestation of official
experience,--the process of metabolism of service, over the
years, of civil servants, by the Administration--and, there-
fore, it is appropriate that as far as possible he who has
actually served longer benefits better in the future. More-
over, the search for excellence receives a jolt from the
rule of equality and the State is hard put to it in striking
a happy balance between the two criteria without impairment
of administrative efficiency. Broadly speaking, the Court
has to be liberal and circumspect where the area is trickly
or sensitive, since administration by court writ may well
run haywire.
Moving on, we may start off with the statement that the
last case Badami (Supra) lays down the incontrovertibly
harmless principle that quotas that are fixed are inaltera-
ble according to governmental exigencies. But there, unlike
here, no saving provision ’as far as practicable’ existed
and here post-1966 promotees have to suffer a push down
where their appointments are in .excess of. the promotee
quota. Nothing directly bearing on our controversy could be
discerned by us in that decision.
Gupta I (Supra) an off-shoot of Jaisinghani (Supra),
proceeds on the assumption that the quota is for .a year.
Whether the rule stated so or not, that was probably the
practice and there was nothing unreasonable in it. Even if
the rule as such had expired, it could, according to that
decision, be followed as a guideline. Government had to
follow some guiding principle and not be led by its fancy,
as each occasion arose. Palekar, J. expressed the view of
the Court thus:
"When the rule is followed as a guideline
and appointments made, a slight deviation from
the quota would not be material. But if there
is an enormous deviation, other considerations
may arise."
In the present case, prior to 1963, there was departure from
the quota system and that was sanctioned by the rule itself
because of special circumstances. For subsequent periods,
if by taking the year as a unit there have been surplus
promotees beyond their allocation even after taking into
account impracticability of getting direct recruits upto
1966 when new statutory rules were enacted, then such spill-
overs, could and should, as indicated by this Court, be set
off and absorbed in the later allocable vacancies, the pro
tempore illegal appointments being thus regularised. Of
course, appointees on an ad hoc basis are never clothed
with any rights and have to quit when the exit time arrives
but here there are none. In Gupta II(Supra) the Court
ruled:
1057
"If there were promotion in any year in
excess of the quota those promotions were
merely invalid for that year but they were not
invalid for all time. They can be regularised
by being absorbed in the quota for the later
years. That is the reason why this Court
advisedly used the expression ’and onwards’
just to enable the Government to push down
excess promotions to later years so that
these promotions can be absorbed in the lawful
quota for those years."
Such is the essence of the two Gupta cases (Supra). Law
conceptualises anew every time life inseminates it with new
needs and we have in Gupta the innovation of temporary
invalidity of an appointment-clinically dead but later
resuscitated ? Jurisprudence burgeons from the left neces-
sities of society.
A.K. Subbaraman (Supra) relying on .Gupta 11 (Supra)
and going further, has silenced the direct recruits with
reference to the precise contention now urged by Shri Garg
that rota being imbedded in the womb of the quota system
their co-existence could not be snapped. While quota and
rota may constitutionally co-exist their separation is also
constitutionally permissible, if some ’reasonable’ way, not
arbitrary whim, were resorted to. Even what is ’reasona-
ble’ springs from sort of reflexes manifesting social sub-
consciousness, as it were. Nothing absolutely valid exists
and rationality and justice themselves are relative. Within
these great mental limitations, the Court’S observations in
Subbaraman (Supra) have to be decided.
This brief and quick survey of decided cases, and the
submissions considered by us in the judicial crucible,
yield the following conclusions, leaving aside the question
of ’confirmation’ in service which, in the Gujarat set-up,
leaves our controversy untouched:
(a) The quota system does not necessitate
the adoption of the rotational rule in practi-
cal application. Many ways of working out
’quota’ prescription can be devised of which
rota is certainly one.
(b) While laying down a quota when fill-
ing up vacancies in a cadre from more than one
source, it is open to Government, subject to
tests under Art. 16, to choose ’a year’ or
other period or the vacancy by vacancy basis
to work out the quota among the sources. But
once the Court is satisfied, examining for
constitutionality the method proposed, that
there is no invalidity, administrative tech-
nology may have free play in choosing one or
other of the familiar processes of implement-
ing the quota rule. We, as Judges, cannot
strike down the particular scheme because it
is unpalatable to forensic taste.
(c) Seniority, normally. is measured by
length of continuous, officiating service--the
actual is easily accepted as the legal. This
does not preclude a different prescription,
constitutionally tests being satisfied.
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(d) A periodisation is needed in the case
to settle rightly the relative claims of
promotees and direct recruits. 1960-62 forms
period A and 1962 onwards forms period. B.
Promotees regularly appointed during period A
in excess of their quota, for want of direct
recruits (reasonably sought but not secured
and because tarrying longer would injure the
administration) can claim their whole length
of service for seniority even against direct
recruits ’who may turn up in succeeding peri-
ods.
(e) Promotees who have been fitted into
vacancies beyond their quota during the period
B--the year being regarded as the unit--must
suffer survival as invalid appointees acquir-
ing new life when vacancies in their quota
fall to be filled up. To that extent they
will step down, rather be pushed down as
against direct recruits who were later but
regularly appointed within their quota.
On this basis, the judgment of the High Court stands
substantially modified, but preparation of a new seniority
list becomes necessitous. We set aside the judgment under
appeal but direct the State Government to draw up de novo a
gradation list showing inter se seniority’ on the lines this
judgment directs. The subject has been pending so long that
very expeditious administrative finalisation is part of
justice. Officials live in the short run even if Administra-
tions live in the long run. We direct the State to act
quickly. Lack of adequate articulation of simple points
regarding rotation and seniority, and the amber light shed
by case-law on the questions raised, warrant the direction
that parties shall bear their costs throughout.
The unlovely impact of these protracted and legalistic
proceedings makes us epilogue, an unusual step in a judg-
ment, but pathetically necessitous for the renovation of the
judicial process. Law is not a ’brooding omnipotence in the
sky’ nor a sort of secretariat asoterica known only to
higher officialdom. But lengthy legal process, where
administrative immediacy is the desideratum, is a remedy
worse than the malady. The fact that the present case has
taken around 5 working days for oral arguments is a sad
commentary on the system, which compels litigents to seek
extra-curial forums. Judge Brian Mokenna was right (and the
Indian judicial process needs systemic change ’since his
wise words apply also to our judicature) when he said:
"The fault is that the rules of our
procedure which by their discouragement of
written argument make possible extensively
protracted hearings in open court. Those re-
sponsible might think more of changing them.
In civil cases a written argument supplemented
by a short oral discussion, would sometime’s
save a great deal of time."
To streamline and to modernise court-management is a
Cinderella subject in India, as elsewhere. We conclude, by
repeating what Chief
1059
Justice Warran Burger of the U.S. Supreme Court said, in
1970, in his address to the American Bar Association:
"In the final third of the century we
are still trying to operate the courts with
fundamentally the same basic methods, the
same procedures and the same machinery,
Roscoe Pound said were not good enough in
1906. In the super-market age we are trying
to operate the courts with craker-barrel
corner grocer methods and equipment--vintage
1900."
We too have miles to go for law and justice to meet.
P.H.P. Appeal allowed.
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