PETITIONER:
STATE OF MAHARASHTRA
Vs.
RESPONDENT:
BHALCHANDRA KHANDERAO JOSHI & ANR.
DATE OF JUDGMENT27/01/1977
BENCH:
SHINGAL, P.N.
GOSWAMI, P.K.
CITATION:
1977 AIR 1241 1977 SCR (2) 782
1977 SCC (4) 598
ACT
Maharashtra Educational Service Class 11--Amalgamation
of History and Political Science lecturers--Proof of amalga-
mation--Grant of option. to teacher to join History or
Political Science service..
HEADNOTE
After the reorganisation of the States a separate sen-
iority list was prepared by the State of Bombay for History
and Political Science teachers. On 20.8.1963, the Director
of Education issued a letter conveying the decision of
Government to amalgamate the list of lecturers in History
and Lecturers in Political Science and to prepare a single
seniority list for both the subjects. It was expressly
stated in the letter that it was issued in pursuance of the
decision of the State Government. Thereafter a revised
seniority list was prepared. One Nanekar filed a writ
petition in the High Court challenging the said order on the
ground that when two separate seniority lists had been
prepared for the departments of History & Political Science
in accordance with the earlier Government Order of 1960. the
new list was invalid. The High Court took the view that
the existence of the Government resolution dated 27.2.1963,
which was said to be the authority for the issue of Direc-
tor’s letter dated 20.8.1963, had not been proved. It
therefore held that there Was no such resolutionor. order
requiring the preparation of a combined seniority list. It
decided that the earlier order of 1960 requiring the prepa-
ration of separate list of History and Political Science
continued to be operative. It however dismissed the writ
petition filed by Nanekar on the ground that he could not
claim to be the seniormost person in his department In the
present writ petition filed by B.K. Joshi and P.S. Kane the
High Court followed its decision in Nanekar’s case and held
that there was no order or decision dated 27.2.1963 so that
the action of amalgamating the list of’ History and PoLit-
ical Science departments was invalid. A resolution was
taken on 15.1.1970 in which it was mentioned that the earli-
er decision to amal-gainate the two categories was given up
on account of the difficulties which were experienced and an
option was given by the 1970 resolution in order to obviate
those difficulties. That resolution was challenged in the
present proceedings. The High Court examined the effect of
the Government Resolution dated 15.1.1970 and held that in
the absence of the earlier resolution dated 27.2.1963 the
Director of Education was not competent to combine or amal-
gamate the seniority lists of History and Political Science
Departments. It assumed that legally there was no amalga-
mation at all and any action taken on the basis of the
amalgamation would also consequently have to fall on that
ground. The High Court held that the option given by the
1970 resolution had the effect of perpetuating the effect of
the working of the invalid list and amounted to violation of
Art. 16 of the Constitution. The High Court held that in
Nanekar’s case no attempt was made to produce the resolution
of 27.2.1963:
Allowing the appeals,
Held: 1: The High Court erred in observing that the
resolution of 27.2.1963 did not exist. The High Court lost
sight of the intrinsic evidence which was available on the
record to prove beyond doubt that Government had passed the
resolution on 27.2.1963 to amalgamate the two lists. In
the 1970 resolution, the Government itself reiterated the
act that a decision was taken by Government in the year 1963
to amalgamate the lists of Lecturers in History and the
Lecturers in Political Science into one common list. The
reason for taking that decision to amalgamate the two lists
was also stated in that resolution.’ In fact the 1970 reso-
lution made a mention of the difficulties experienced in
working the 1963 resolution and that was why it was decided
to revert to the decision to split up the combined seniority
’list which formed the basis of promotion of some of the
teachers. As the genuineness of the resolution of 1970 was
783
not challenged, the High Court ought to have taken notice of
its intrinsic evidentiary value for the purpose of proving
the earlier resolution of 1963. In fact the Director in
his order specifically stated that the decision of the
Government to amalgamate the two lists had to be brought to
the notice of all concerned. The combined seniority list,
was therefore fully authorised and there was nothing wrong
if it formed the basis of the subsequent promotions. [787
G-H, 788 A-E]
2. No exception could be taken to the decision of the
Government to give option to the Lecturers to elect either
of the two departments. The decision to amalgamate the
seniority lists of the two departments was not taken in
consultation with them and if they were required to teach
History or Political Science and were promoted as Professor
of History or Political Science on the basis of combined
seniority list for which they themselves were not responsi-
ble, it would have been unfair if they had been required to
serve in another depart.meat by a unilateral executive fiat.
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1173 to
1175 of 1976.
Appeals by Special Leave from the Judgment and Order
dated the 1-3-1975 of the, Bombay High Court (Nagpur Bench)
in Special Civil Application No. 695 of 1971.
L.N. Sinha, Sol Genl., M.N. Shroff for the Appellants
in CA 1173/76 for R. 3 in C.A. 1174/76 and 1175/76.
M.N. Phadke, V. M. Phadke and ,4. G. Ratnaparkhi for RR.
J. and 2 in CA 1173/76 and CAs. 1174-75/76.
Nilofer (Mrs.).Bhagwat, S.C. Agrawal and V. J. Fran-
cis for R. 5 in C.A. 1174 and 1175/76.
V.J. Francis for RR. No. 6 in CA 1175/76.
The Judgment of the Court was delivered by
SINGHAL J.--These appeals arise out of a judgment
of the Bombay High Court dated March 11, 1975, by which the
High Court quashed that part of Government resolution dated
January 15, 1970, "which holds that the respondents Nos. 3
to 5 should not be compelled to go back to their respective
lists. and which gives a further option to these three
respondents to indicate whether they wanted to go back to
the department of History." The High Court has further held
that the writ petitioners will be entitled to be considered
for promotion to Class I posts in the department of Politi-
cal Science and the seniority of respondents Nos. 3 to 5
"will be considered in the seniority list relating to
the Department of History".
The controversy arose because of a writ petition filed
by Bhalchandra Khanderao Joshi and Padmakar Siddhanath Kane.
Both of them were members of the Maharashtra Educational
Service, Class II (Collegiate Branch). Bhalchandra Khande-
rao Joshi was M.A. in Political Science as well as in
History. He was appointed Lecturer in Political Science in
1958, and was confirmed in that capacity. Padmaliar
Siddhanath Kane passed M.A. Examination in Political
Science in 1956 and was appointed Lecturer in Political
Science in 1958. He was also confirmed on that post. Both
of them filed a writ
784
petition and challenged the resolution of the State Govern-
ment, in the Education and Social Welfare Department, No.
SCP No. 1064-D dated January 15, 1970, in pursuance of which
respondents Smt. K.A. Parekh, S.A. Bari and Smt. R.S. Dossal
were promoted as Professors of Political Science and were
given the option to opt for the History or the Political
Science department.
It may be mentioned that after the reorganisation of
States, a combined seniority list was prepared on November
1, 1956, for History and Political Science teachers. In
that list respondent No. 3 was; shown at serial No. 3, and
respondent No. 4 at serial No. 5. One S.R. Nanekar was
appointed as Lecturer in Political Science on June’ 26,
1954. Respondents Nos. 3 and 5 were M.A. in History. It
was not disputed in the High Court that Political Science
was not a separate subject until 1956, in Bombay, because
out of the eight papers for post graduation in History, four
were in Political Science. Smt. K.A. Parekh was M.A. in
History and was recruited as Lecturer on August 5, 1946.
She however taught both History and Political Science
upto 1963, when she was appointed officiating Professor of
Political Science on February 27, 1963. Dr. S.A. Bari was
recruited as Lecturer in History on October 1, 1947. He was
thereafter promoted as Professor in that subject. Smt. M.G.
Sonnal, who. was M.A. in History, was appointed as Professor
of Political Science. Smt. R. S, Dassal was recruited as
Assistant Lecturer in History on August 5, 1946, and taught
both History and Political Science upto 1956. Thereafter she
taught only Political Science, and was promoted as Profes-
sor in that subject in 1968. She was confirmed in that
capacity in 1972. These facts are quite sufficient for
purposes of the present appeals.
The controversy relates to the question whether the
Director of Education, Maharashtra State, had the authority
to issue the letter dated August 20, 1963, which was ad-
dressed to all the Principals of he Government Colleges. It
was stated by the Director in that letter as follows,--
"It has been decided to amalgamate the
two lists of lecturers in ’History’ and
’Political Science’ and to combine the two
lists under the common subject of ’History’
and ’Political Science’. The revised seniori-
ty list so prepared is enclosed herewith.
Please bring this decision of Government to
the notice of the officers concerned."
The Director thus conveyed the decision to amalgamate the
lists .of Lecturers in History and Political Science and to
prepare a single seniority list for both the subjects. It
was expressly stated in the letter that it had been issued
in pursuance of the decision of the State Government. A
revised seniority list was therefore prepared in which
respondent No. 3 was placed at serial No,. 4, respondent
No.. 4 at serial No. 5, and S.R. Nanekar at serial No. 7.
Nanekar challenged that order in the High Court by Special
Civil Application No. 120 of 1964, mainly on the ground
that when two separate seniority lists had been prepared for
the. departments of History and Political Science,
785
in accordance with the earlier Government Order of 1960,
the new list was invalid. The High Court however took the
view that the existence of the Government resolution dated
February 27, 1963, which was said to be the authority for
the issue of the Director’s letter dated August 20, 1963,
had not been proved. It therefore held that there was no
such resolution or order requiring the preparation of a
combined seniority list. It decided that the earlier
order of 1960, requiring the preparation of separate lists
for History and Political Science, continued to be opera-
tive and that as Nanekar could not claim to be the senior-
most person in his department, he had no cause of action.
It therefore dismissed the writ petition.
The High Court, in the present case, went by the deci-
sion in Nanekar’s case, and held that there was no order or
decision dated February 27, 1963, so that the action of
amalgamating the lists of History and Political Science
departments was invalid. The High Court made a reference
to the Director’s letter dated July 27, 1967 asking the
Principals to forward information in the prescribed pro-
forma in respect of those Professors and Lecturers of Histo-
ry in their respective colleges who were qualified to teach
Political Science and had been recognised therefore. It
also made a reference to the impugned resolution dated
January 15, 1970 which reads as follows,--
"A decision was taken by Government in the
year 1963 to amalgamate the lists of Lecturers
in ’History’ and Lecturers in ’Political
Science’ into one common list of Lecturers in
’History and Political Science’. According-
ly, a combined seniority list was prepared
with reference to the date of appointment of
the officer concerned in the M.E.S. Class 11,
irrespective of the fact as to whether the
Lecturers are qualified in both the subjects
of "History" and "Political Science" or in any
one of the two. The decision to amalgamate
the two lists into one was taken because it
was noticed that some of the Lecturers in the
seniority list of the subject "History" also
possessed the qualifications in the subject
"Political Science". Similarly, some of the
Lecturers in "Political Science" possessed the
qualifications in "History". But they were
not considered eligible for appointment to a
post of Professor in a subject other than the
subject under which their names were included
in the seniority list of their subject. In
order to remove this anomaly, decision to
amalgamate the seniority lists of Lecturers in
"History" and "Political Science" and to
make appointment to the posts of Professors on
the basis of the combined seniority list in
the subjects of "History" and "Political
Science" was taken by Government. However, in
view of the difficulties experienced with
regard to the implementation of the decision
of Government referred to above, Government on
reconsideration decided in the year 1967 to
revert to the old practice of having separate
seniority lists of Lecturers for the two
subjects., ’History’ and ’Political Science’.
786
2. Some of the teaching members of the
Department of History brought to the notice of
Government that in the western Maharashtra
formerly there were no separate posts for
Political Science as "Political Science" did
not exist as distinct subject. All teachers
were designated as Lecturers/ Professors in
History, but they used to teach the subject
"Political Science" also. The question of
giving option to those Lecturers/Professors,
who were qualified to teach both, the sub-
jects, viz., "History" and "Political Science"
and recognised as such, to elect either of the
two subjects, was under consideration of
Government for some time past. While re-
verting to the decision to split up the
combined seniority list of "History and Polit-
ical Science", Government considers that those
who were promoted to the posts of professors
on the basis of the combined seniority list
should not be compelled to go back to their
respective .lists. Government has now decided
that an option should be given to those
Lecturers/Professors of the Old Bombay State,
who were recruited as Lecturers/Professors of
History but have been recognised as teachers
of Political Science and also those who have
been promoted to the posts of Professors in
M.E.S.C. II (Collegiate Branch) on the basis
of the combined seniority list, to elect
either of the two Departments, viz. ’Histo-
ry’ or ’Political Science’. Accordingly the
concerned Lecturers/Professors were asked to
exercise" their option. The following offi-
cers have opted for their being treated as
belonging to the Department of Political
Science:--
(i) Smt. K.A. Parekh, Officiating Profes-
sor of Political Science, I. Y. College,
Jogeshwari.
(ii) Shri S.A. Bari, Officiating Profes-
sor of History, Government Arts and Science
College, Aurangabad.
(iii) Smt. R.S. Dossal, Officiating Pro-
fessor of Political Science, Elphistone Col-
lege, Bombay.
The option exercised by these officers have
been accepted by Government and their senior-
ity in the Department of Political Science
should be as shown in the accompanying state-
ment." (Emphasis added).
It therefore gave option to respondents Nos. 3 to 5 to go
back to the department of History or not, and stated further
that the option had been accepted and their seniority
finalised in the Political Science department. It is this
resolution of the Government dated January 15, 1970 which
has been challenged in the present petition. The reason
is that if respondents Nos. 3 to 5 had not been, given the
option to continue in the Political Science department, the
petitioners would have been promoted to a Class I Post.
They have stated that they would then not have been deprived
of that chance in violation of article 16 of the Constitu-
tion.
787
Respondents Nos. 4 and 5 did not enter appearance in the
High. Court, but it was urged on behalf of respondent No. 3
that in view of the curriculam for the Master’s degree in
History, upto 1956, a person obtaining the Master’s degree
in History was equally qualified to teach Political Science.
It was also urged that the respondent taught Political
Science and had been recognised by the University as a
teacher of Political Science. The High Court examined the
effect of the Government resolution dated January 15, 1970,
and held that in the absence of the earlier resolution dated
February 27, 1963, the Director of Education was not compe-
tent to combine or amalgamate the seniority lists of the
History and Political Science departments. It assumed
that "legally there was no amalgamation at all and any
action taken on the basis of such amalgamation would also
consequently have to fall on the ground." In that view of
the matter, the High Court held that promotions were not
permissible on the basis of the combined list. It accord-
ingly held that the Government resolution dated January 15,
1970 proceeded on a "misapprehension" that the respondents.
had been promoted as Professors on the basis of the
combined seniority list, which was itself invalid. The High
Court ’held that there was "no valid reason why persons who
were qualified in the Department of Political Science
itself could be prevented from having their names considered
for the post ’of Professor in Class I." That led: the High
Court to hold further that the option which was given by the
resolution dated January 15, 1970 had the effect of perpetu-
ating the effect of the working of the invalid list, and
amounted to violation of article 16 of the Constitution.
This is why the State of Maharashtra, Smt. K.A. Parekh and
Smt. R.S. Dossal have come up in appeal by special leave to
this Court.
The controversy therefore is whether the State govern-
ment passed. the aforesaid resolution dated February 27,
1963, to amalgamate the lists of Lecturers in History and
Political Science, as stated in the Director’s aforesaid
letter dated August 20, 1963, or whether there was no such
resolution and the Director’s order was unauthorised ? The
High Court has taken the view that as no attempt was made to
produce the resolution dated February 27, 1963 in Nanekar’s
case, there was no such, resolution at all. On that basis,
it held that the Director had no authority to take the
decision to amalgamate the lists.
We find however that in taking that view’ the High Court
lost sight of the intrinsic evidence which was available on
the record, to prove beyond doubt that Government had passed
the aforesaid resolution dated February 27, 1963, to amalga-
mate the two lists. We have extracted the Government reso-
lution dated January 15, 1970 and the underlined portions
thereof clearly show that the Government itself reiterated
the fact that "a decision was taken by Government in the
year 1963 to amalgamate the lists of Lecturers in "History"
and Lecturers in "Political Science" into one common list of
Lecturers in "History and Political Science"." It has
further been stated in that resolution of the Government
that "accordingly, a combined seniority list was prepared
with reference to the date of appointment of the
788
officer concerned in the M.E.S. Class 11, irrespective of
the fact as to whether the Lecturers are qualified in both
the subjects of ’History’ and ’Political Science’ or in any
one of the two". The reason for taking that "decision to
amalgamate the two lists" has also been stated in the reso-
lution. Then it has been stated that in ’:view of the
difficulties experienced with regard to the implementation
of the decision of Government referred to above," the
Government "on reconsideration" had decided to revert to the
old practice of having separate seniority lists of Lecturers
of History and Political Science. It has also been stated
that the decision had been taken for "reverting to the
decision to split up" the combined seniority list which
formed the basis of promotion of some of the teachers. It
would thus appear that the resolution dated January 15,
1970, repeatedly refers to the earlier decision of the State
Government of 1963 for amalgamating the lists, states the
reason for the amalgamation, makes a mention of the diffi-
culties experienced in the implementation of that decision,
and gives the reasons for the government’s decision to,
revert to the old practice of having separate seniority
lists. As it was not challenged in the High Court that the
resolution dated January 15, 1970 was genuine, the High
Court should have taken notice of its intrinsic evidentiary
value for the purpose of proving the earlier resolution
dated February 27, 1963. If it had done so, it would have
inevitably reached the conclusion that the Government had
really decided in 1963 to amalgamate the lists, and that the
Director had rightly conveyed that decision in his order
dated August 20,1963, and it was therefore an authorised
communication. In fact the Director specifically stated in
that order that the "decision of Government" to amalgamate
the two lists had to be. brought to the notice of all
concerned. The combined seniority list was therefore fully
authorised, and there was nothing wrong if it formed the
basis of the promotions which were given to the persons
mentioned above. We have no doubt that the High Court did
not read the relevant document carefully and that was why it
arrived at a contrary conclusion.
The resolution dated January 15, 1970 shows that as the
Government had decided to split up the seniority list for
the department of’ History and Political Science, it thought
it desirable to. give an ".option" to those Lecturers/Pro-
fessors of the old Bombay State, who were recruited as
Lecturers/Professors of History, but were recognised by the
University as teachers of Political Science, to elect for
either of the two departments. No exception can be taken
to that decision to give’ the option to the Lecturers/Pro-
fessors concerned for, in the absence of such an option,
they would have been deprived of the opportunity of express-
ing their desire to serve in the one or the other department
on the basis of their experience and prospects of promotion.
It was to be appreciated that the decision to amalgamate the
seniority lists of the two departments was not taken in
consultation with them, and if they were required to. teach
History, or Political Science, and were promoted as Profes-
sors of History or Political Science, on the basis of a
combined seniority list for which. they themselves were not
responsible, it would have been unfair if they had been
required to serve in another department by a unilateral
executive fiat.
789
It may be mentioned that Mr. Phadke tried to argue that
even if the resolution dated January 15, 1970 were held to
be valid, it would not be permissible for the teachers
concerned to take advantage or’ it because they did not
fulfill its. requirements. We do not find any merit in
this argument. As has been stated, those teachers were
promoted to posts of Professors on the basis of the combined
list, they were ,recognised as such teachers by the Univer-
sity, and were recruited initially as Lecturers in History.
They were therefore entitled to take the benefit of the
resolution dated January 15, 1970, as there is nothing wrong
with it. We have no doubt that in the facts and circum-
stances mentioned above, there could be no justification for
the view taken by the High Court that there was violation of
article 16 of the Constitution.
The appeals are allowed, the impugned judgment of the
High Court dated March 11, 1975 is set aside and the writ
petition is dismissed. The State of Maharashtra will pay
the costs of respondents Nos. 1 and 2 (Bhalchandra K. Joshi
and Padmakar Sidharath Rao) in Special Leave Petition No.
915 of 1976, as directed by this Court October 8, 1976.
P.H.P. Appeals allowed
790