K A PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) IN the special petition under Art. 226 of the Constitution of India, all the 16 petitioners who have been working as "aval Karkuns" in the Revenue Department of the State of Gujarat, have approached this High Court for a writ of mandamus against the State of Gujarat and the Collector of Ahmedabad to treat the circular at annexure C to the petition as invalid and inoperative and they have asked for an order, direction or writ, directing the Collector of Ahmedabad to forbear from acting upon or implementing the circular at annexure C. They have further prayed for an order directing the respondent No. 2, the Collector, to forbear making orders of reversion against the petitioners merely on the grounds that they have not passed Revenue Qualifying Examination.

(2.) THE facts leading to this petition may be shortly stated. All the petitioners joined the service of the State Government as clerks in the then State of Bombay and their periods of service vary from 16 to 24 years. All the petitioners have been working as Aval Karkuns under the Collectorate of Ahmedabad in the pay scale of Rs. 145-215. As shown in the annexure A to the petition, the petitioners have been working as Aval Karkuns for periods varying from 4 to 10 years. On March 1, 1969 the Collector of Ahmedabad published the seniority list permanent clerks and in the list different ranks were assigned to the petitioners as shown in column 4 of the list annexure A to the petition. Accordingly to the petitioners, there was no rule which required that clerks should pass Revenue Qualifying Examination to be eligible for promotion to the grade of Aval Karkun. According to the petitioners, prior to 1956 the position was that the recruitment for Aval Karkuns provided for appointments by promotion to the post of Aval Karkuns from amongst clerks but the rules did not lay down passing of the Revenue Qualifying Examination as a condition for promotion. According to the petitioners, this position which prevailed before 1956 continued thereafter and even at the time of filing of this petition in 1969, the Government had not made any recruitment rule which lays down that a clerk should pass Revenue Qualifying Examination in order to qualify for promotion to the post of Aval Karkun. The recruitment rules for Aval Karkuns were revised and new rules under the proviso of Art. 309 of the Constitution of India were made on July 22, 1966 as shown in annexure B to the petition and even these rules do not provide for passing a Revenue Qualifying Examination by the clerk as a condition for promotion to Aval Karkun's post. The grievance of the petitioners is that even though there is no rule having the force of law, which requires passing of the Revenue Qualifying Examination as a condition to the promotion to the post of Aval Karkun the Collector Ahmedabad, the second respondent herein, took the view that success at the Revenue Qualifying Examination was necessary for promotion to the post of Aval Karkun. He further held the view that those persons who are already promoted to Aval Karkun's posts should not continued in the said posts if they have not passed the Revenue Qualifying Examination. In July and August, 1969, the second respondent passed orders of reversion against petitioners Nos. 9, 13, 14 and 15 reverting them to the posts of clerks from the posts of Aval Karkuns, only on the grounds that those persons had not passed the Revenue Qualifying Examination. However, because some other vacancies arose in the posts of Aval Karkuns, even petitioners Nos. 9, 13, 14 and 15 were not reverted to the posts of clerks and were continued as Aval Karkuns. The grievance of the petitioners is that the Collector of Ahmedabad was contemplating reversion from the post of Aval Karkuns of all those persons who have not passed the Revenue Qualifying Examination. According to the petitioners by the end of the month of June, 1969, 15 posts of Aval Karkuns were to come to an end and the Collector was contemplating reversion of the petitioners and others who had not passed the Revenue Qualifying Examination to the posts of clerks. The petitioners contend that there are large number of persons in Aval Karkun's posts juniors to the petitioners and yet those juniors were sought to retained on the ground that they have passed the Revenue Qualifying Examination, and those apprehended actions of the Collector have been challenged in the present proceedings. The Special Civil Application was filed on 24th June, 1969 and on June 25, 1969, the matter was admitted this Court. The rule was directed to be issued and ad interim injunction in terms of para. 19 was granted so that pending the hearing and final disposal of the petition respondent No. 3, the Collector of Ahmedabad, was restrained from making the orders of reversion against the petitioners merely on the ground that they had not passed the Revenue Qualifying Examination. After the petition was filed and rule was issued 23 persons who are now joined as respondents Nos. 3 to 25 applied to the High Court to be joined as respondents to the petition and they also applied that the interim relief granted on June 25, 1969 should vacated. Their Civil applications was granted on October 20, 1969 only as regards to the prayer to join them as parties and no other relief was granted on the said application. On this special application, therefore, I have heard both the learned advocates for the petitioners as well as for the respondent Nos. 3 to 25 besides the learned Assistant Government Pleader appearing on behalf of the State of Gujarat and the Collector of Ahmedabad.

(3.) IN order of appreciate the rival contentions it is necessary to set out the history of the posts of Aval Karkuns. As far back as 1925, rules appear to have been made under the relevant section of the Government of India Act, 1915 as amended by the Government of India Act 1919 for classification and recruitment of Bombay Civil Service. Thereafter under S. 241 of the Government of India Act, 1935, Bombay Civil Services Classification and Recruitment Rules were formulated and so far as Revenue Department was concerned, a distinction was made between the provincial services and the subordinate service in the Revenue Department. Under the heading Bombay Provincial Services under the control of the Revenue Department there was an upper division of Deputy Collectors and the lower divisions of Mamlatdars. The scheme of these classification and recruitment rules was that under Rule 7, the Government was empowered to prescribe the qualifications in respect of age and education required to be possessed by the candidate for the purpose of promotion and for joining subordinate service and the qualification are set out in appendices C and D. It is important to note that Rule 4 of the rules in appendix C prescribes the qualifications of the candidates for the posts of Mamlatdars : the members of the Subordinate Revenue Services must have passed the qualifying examination unless specially exempted by the Commissioner and must also have previously served for atleast one year as Aval Karkun. Period during which an officer has acted as Mamlatdar and/or Mahalkari will count towards the prescribed period of one year. As regards the Subordinate Revenue Service, Appendix D only mentions the posts of Talaties and no other posts. The posts of Aval Karkuns and that of Mahalkari are not mentioned in appendix C. However, on 6th April, 1940, a resolution was issued by the then Government of Bombay laying down instructions concerning appointments and promotion in the Subordinate Revenue Service of Province of Bombay excluding the town of Bombay. The resolution of the Government is in these terms :