M V PATHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) In both these matters identical question is involved. The petitioners in both happen to be Assistants in the Secretariat Service of the State of Gujarat. The State came into existence from 1-5-1960. This particular post has a long history going back to the State of Bombay of which some of the territories of the State of Gujarat was a part. Before the State of Gujarat was formed as a result of the State Reorganisation Act 1956 there had come into existence what is popularly known as bigger Bilingual Bombay. The areas that came to be merged in the year 1956 in the State of Gujarat were themselves having legal entity of a State such as State of Saurashtra as a part having B status and the area of Kutch having status of C State. By the time the State of Gujarat came to be formed because of these various events there were lot many people who had joined the Secretarial service from Kutch as well as Saurashtra area and on formation a considerable portion of those who were at Bombay had decided to come over to Gujarat and therefore there was lot of shuffling and exercise on a large scale to merge different people into aforesaid cadre at different level. This naturally gave rise to the vexed question of seniority. As if the aforesaid complexity was not enough the post of Assistance originally was sub-divided into two-junior Assistants and Senior Assistants which came to be merged and turned into a single cadre of Assistants.

(2.) For our purpose this much material about the background is quite enough. At this stage the position of the cadre may be looked at. It is formed from two sources-one by way of promotion from Clerk-typists and others and second by way of direct recuitment. Right from the beginning entry into this cadre is regulated by providing for quota for these two sources. Naturally the State Government may have fluctuated the ratio of the quota between the direct recruits and promotes at different level during the passage of time. In other words the ratio would be fluctuating. However the effect of quota system and its impact on the seniority is by now well established. The quota is required to be strictly adhered to and the placement in the cadre is required to be rotated both while promoting or recruiting and this will have a direct bearing on the seniority list.

(3.) For the post of Assistants there are Recruitment Rules of the year 1964 and they came to be amended in the year 1974 for the first time followed by another amendment in the year 1977. These Rules shall hereinafter be referred to as Recruitment Rules. The Rule 1 of the Recruitment Rules provides for quota. The 1974 amendment was an attempt to answer the felt need of the cadre as by way of promotion disproportionately large number had entered into the cadre and conflict of fixation of seniority between the direct recruits and the promotees had arisen. So far as the petitioners who are the direct recruits are concerned they are challenging the fixation of seniority of the promotees who are the Clerks. The case of the Typists Stenographers etc. is not required to be considered in the instant case. Thus for all intents and purposes the amendment of the year 1974 as brought in at the relevant time would continue to operate though the amendment was made to take care of the dispute pertaining to Clerks Typists etc. Inspite of that it will be proper to reproduce the said amended Rule 6 as it stood after the amendment in 1977 Rule 6 : Notwithstanding anything contained in Rule (1) persons appointed to the posts of an Assistant by promotion under clause (b) of Rule (1) in excess of the number upto which they would ordinarily have been entitled to be appointed by promotion under the proviso to the said clause (b) shall not be reverted to the lower posts merely by reason of their appointment being in excess of such number : (i) If such persons have completed two years continuous service as Assistants on or before 1st April 1974 or (ii) in a case where clause (i) does not apply if such persons being recruited as clerks were declared as senior to the persons : (a) who were promoted as Assistants from amongst the typists in the joint cadre of clerks typists as a result of fixation of their seniority with reference to the date of their appointments on supernumerary posts or the date of their deputation for training in pursuance of the Judgment of the High Court of Gujarat in Special Civil Application no. 1706 of 1973 and (b) to whom clause (i) is applicable and the appointment of such persons as Assistant shall continue to remain in force subject however to the condition that they shall be junior to all persons recruited to the posts of an Assistant by direct selection under clause (a) of Rule (1) on or after 1st April 1972 but before 1st April 1975 As can be seen from the aforesaid Rule 6 two provisions were directly made-(1) that those who are promoted in excess of quota shall not be reverted to the lower posts merely by reasons of appointment being in excess of such number and (2) that they shall be junior to all persons recruited to the posts of Assistant by direct selection under cl. (a) of Rule 1 on or after 1st April 1972 but before 1st April 1975 The petitioners happen to be the persons directly recruited after 1st April 1975 The conflict therefore is clear so far as they are concerned. The main reason for the conflict is that the entire block of promotees numbering more than 200 will rank above them as per the said provision of clause (b).