N K DHOLAKIA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) . All these four Special Civil Applications arise in connection with inter se seniority of promotee Assistants and the staff of the Secretariat of the Government of Gujarat and the challenge is to the same notification and rules. As a matter of fact the petitioners in Special Civil Application No. 1073 of 1975 are some of the petitioners in Special Civil Application No 262 of 1975. There are some additional features so far as Special Civil Application No. 791 of 1973 is concerned but the background of facts for all the Special Civil Applications is the same and hence we will dispose of all the four matters by this common judgment.

(2.) We will take up the facts in Special Civil Application No. 1073 of 1975 as they illustrate the questions that arise for our determination. The six petitioners in this Special Civil Application all joined Government service as clerks or typists in the Subordinate Secretariat Service either in Saurashtra when there was the State of Saurashtra or at Bombay. All of them were recruited in this cadre through the respective Public Service Commissions. All the petitioners were allocated to the Bilingual State of Bombay as clerks or typists when the Bilingual State of Bombay was formed with effect from November 1 1956 On May 1 1960 on the formation of the State of Gujarat the petitioners were allocated to the State of Gujarat and they have been working in the General Administration Department of the Secretariat. They were confirmed as clerks or typists with effect from May 1 1960 After that date these petitioners were promoted as Junior Assistants and in 1963-64 they were promoted to the posts of Senior Assistants. On September 25 1964 a notification was issued by the Government of Gujarat by which with effect form 1st October 1964 the cadres of Junior and Senior Assistants in the Secretariat Departments were unified into a single cadre of Assistants. However the seniority amongst the Assistants was to be governed departmentwise that is according to the departments concerned and the seniority was governed on the principle of continuous officiation as Assistants as the basis for seniority. Upto October 12 1960 the seniority was departmentwise and promotions were given departmentwise in the cadre of Assistants. This principle of departmentwise seniority and promotions also given departmentwise applied to clerks Junior Assistants Senior Assistants and Superintendents. After October 12 1960 there was a common cadre of Superintendents of all departments. On october 12 1960 there was a common cadre of Senior Assistants of all departments. Government Resolution dated October 12 1960 by which provision was made for fixation of seniority and regulation of promotions in Secretariat Departments provided that there should be a common cadre of Superintendents for the whole Secretariat as an experimental measure for one year. This was however not to mean that a centralised cadre of Superintendents was to be operated. Only promotions to the post of Superintendent would be made by General Administration Department out of a common list of Senior Assistants which would be prepared by the General Administration Department. For this purpose the Secretariat Departments were to report vacancies of Superintendents to the General Administration Department well in advance so as to make if necessary a transfer of Senior Assistant who was due for promotion from another department Government have directed that the Secretariat Departments should make local arrangements to fill temporary leave vacancies of Superintendents upto a period of four months by promotion of Senior Assistants in their own Department. The Secretariat departments would also be competent to sanction leave to the Superintendents in their Departments. It was specially provided by this resolution that below the level of Superintendents the cadre and seniority in the Secretariat would be separate for each Department that is in the cadres of Assistants Clerks and Typists seniority in the Secretariat was to be separate for each department. For the purposes of fixation of seniority Government directed that the seniority of allocated staff from the Bombay Secretariat Departments should be fixed with reference to the total length of continuous service in a post for which seniority was being determined on the basis of revised absorption in Bombay Secretariat. On September 25 1964 a resolution was issued by the Government combining the cadres of Junior Assistants and Senior Assistants into a single cadre of Assistants with effect from October 1 1964 On February 8 196 a seniority list of Government servants working as Senior Assistants on 1-1-1963 was prepared and the principle for preparation of that common seniority list was laid down in the circular. By the circular of December 10 1964 Government confirmed the principle on which the list as of January 1 1963 was based.

(3.) It may be mentioned at this stage that by a subsequent change of nomenclature Superintendents are now called Section Officers and by virtue of the statutory rules made under the proviso to Article 309 in 1957 there has been a quota system for recruitment as Assistants. Under the quota system at one time quota of three direct recruits to one promotee was provided for. At other times the proportion was 4: 1 and the relevant notifications were issued from time to time in this connection. On July 19 1969 a seniority list of Assistants was prepared according to the quota provisions and on the basis of continuous officiation in the cadre of Assistants for all the Assistants. This seniority list was challenged in Special Civil Application No. 1330 of 1969 by the direct recruits in the cadre of Assistants. In that Special Civil Application a writ of mandamus or any other appropriate writ direction or order was prayed for directing the Chief Secretary to the Government General Administration Department of the State of Gujarat to treat the resolution and circular dated July 19 1969 and March 1 1960 as illegal and void and restraining them from acting on them and to fix seniority of the petitioners who were direct recruits as per roaster method in the ratio of 3:1 between direct recruits and promotees. This Special Civil Application was decided by a Division Bench of this Court consisting of A. D. Desai and S. N Patel JJ on March 9 1972 The Division Bench came to the conclusion that the promotees in excess of the prescribed proportion from May 1960 onwards had been illegally promoted and the petitioners who were direct recruits were entitled to a writ of mandamus commanding the State of Gujarat to adjust the seniority of the petitioners and to prepare a fresh seniority list in accordanace with law and after adjusting recruitment from May 1 1960 and in accordance with the relevant quota or proportion rule at the relevant time. The Division Bench observed: