STATE OF GUJARAT Vs. K A PATEL

JUDGEMENT

(1.) This is a group of Letters Patent Appeals directed against the judgment of Mr. Justice Divan in several writ petitions relating to employees of the pre reorganized State of Bombay The facts giving rise to the appeals are identical in material particulars barring only difference in dates and it would therefore be sufficient if we take Letters Patent Appeal No. 19 of 1971 as representative of the group and briefly recapitulate the facts giving rise to that appeal.

(2.) Letters Patent Appeal No. 19 of 1971 arises out of Special Civil Application No 884 of 1969. The petitioners in this Special Civil Application joined service as clerks in the pre-reorganized State of Bombay years ago long before the reorganization of the States took place on 1st November 1956 On the reorganization of the State of Bombay under the States Reorganization Act 1956 the petitioners were allotted to the new State of Bombay and when the new State of Bombay was bifurcated into the States of Maharashtra and Gujarat the petitioners came to be allotted to the State of Gujarat under the Bombay Reorganization Act 1960 Now there was a Revenue Qualifying Examination which was being held by the State of Bombay both prior to its reorganization and subsequent as also by the State of Gujarat but the petitioners did not pass this examination. The petitioners were however promoted as Officiating Aval Karkuns on different dates between 1959 and 1965 and since then they have been working as Officiating Aval Karkuns under the Collectorate of Ahmedabad. In July/August 1968 the Collector of Ahmedabad passed orders reverting petitioners Nos. 9 13 14 and 15 from the post of Aval Karkun to the post of Clerk on the sole ground that they had not passed the Revenue Qualifying Examination but fortunately for those petitioners before the orders of reversion could be given effect to some vacancies arose in the cadre of Aval Karkuns and they were therefore continued as Aval Karkuns in those vacancies. In the third week of June 1969 however it came to be known that fifteen posts in the cadre of Aval Karkuns were to be abolished and consequently Aval Karkuns would have to be reverted and since the petitioners had not passed the Revenue Qualifying Examination the Collector of Ahmedabad was contemplating reversion of the petitioners as clerks on the basis of a Circular dated 28th December 1962 issued by the Government of Gujarat. The petitioners therefore immediately hastened to file Special Civil Application No. 884 of 1969 challenging the validity of the Circular dated 28th December 1962 and seeking to restrain the Collector of Ahmedabad from reverting the petitioners merely on the ground that they have not passed the Revenue Qualifying Examination.

(3.) The main ground of attack formulated in the petition was two fold. It was contended in the first place that the threatened action of the Collector to revert the petitioners as clerks on the ground that they have not passed the Revenue Qualifying Examination was illegal and void for two reasons: firstly because no such condition could be insisted upon by the Collector without a statutory rule lo that effect under the proviso to Article 309 of the Constitution and secondly because there was no requirement in the conditions of service applicable to the petitioners immediately prior to the reorganization of States on 1st November 1956 or the bifurcation of the State of Bombay on 1st May 1960 that a clerk should pass the Revenue Qualifying Examination in order to be eligible for promotion as an Aval Karkun and therefore the action threatened by the Collector would amount to variation of the conditions of service of the petitioners to their disadvantage without the previous approval of the Central Government and that would be violative not only to the proviso to sec. 115 sub-sec. (7) of the States Reorganization Act 1956 but also of the proviso to sec. 81 sub-sec. (6) of the Bombay Reorganization Act 1960 The second contention urged in the petition was that the circular dated 28th December 1962 was merely an executive instruction and not a rule made under the proviso to Article 309 of the Constitution and the provision in that Circular fixing seniority in the cadre of Aval Karkuns according to the date of passing the Revenue Qualifying Examination had therefore no binding effect and in any event it was in contravention of the proviso to sec. 115 sub-sec. (7) of the States Reorganization Act 1956 and the proviso to sec. 81 sub-sec. (6) of the Bombay Reorganization Act 1960 since it sought to vary the condition of service of the petitioners in regard to seniority to their disadvantage without obtaining the previous approval of the Central Government. This contention challenging the validity of the circular dated 28th December 1962 was taken in the petition because it was apprehended in our opinion rightly that if this circular were valid and binding the petitioners not having passed the Revenue Qualifying Examination would be juniors to those who have passed and would consequently be liable to be reverted earlier than the others on abolition of posts in the cadre of Aval Karkuns. Though the petition contained only these two contentions and no other contention was taken in the petition a new contention was advanced on behalf of the petitioners at the hearing of the petition before Mr. Justice Divan and that contention was that even if passing the Revenue Qualifying Examination was a condition of promotion to the post of Aval Karkun or a condition of confirmation in the cadre of Aval Karkuns such condition was superseded by statutory rules of recruitment made by the State Government on 22nd July 1966 in exercise of the power conferred under the proviso to Article 309 and after the making of these rules of 22nd July 1966 there was no condition which required that a clerk should pass the Revenue Qualifying Examination in order to be eligible for promotion or confirmation as Aval Karkun and therefore the threatened action of the Collector to revert the petitioners on the ground that they have not passed the Revenue Qualifying Examination must be held to be based on an extraneous consideration and hence without authority. This new contention was permitted to be advanced on behalf of the petitioners by Mr. Justice Divan though it was not taken in the petition since it involved merely a question of law and did not require any investigation of facts. Mr. Justice Divan took the view that this contention was well founded and on this view he did not consider it necessary to examine the validity of the two main contentions urged in the petition and held that the Collector was not entitled to revert the petitioners on the ground that they have not passed the Revenue Qualifying Examination. This view taken by Mr. Justice Divan is assailed in the present Letters Patent Appeal.