A N TRIVEDI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Petitioners the directly recruited District Inspectors Land Records (hereinafter referred to as DILRs) have moved this Court by Special Civil Application under Art. 226 Constitution of India for appropriate writ and for quashing and setting aside the provisional seniority list of DILRs issued by the Government vide Circular No. SNR 1177/62295-H dated 24/08/1978 and final seniority list of direct recruits and promotee DILRs issued by the Government vide G R. No. SNR-1177/62295-H dated 5/06/1979 for the period from 1/05/1960 to 31/12/1972 (Annexure (A & D) and also for quashing the orders in the cadre of DILRs and SLRs made in case of promotees with effect from the formation of the Gujarat State till the date of petition contending that the said gradation list and the orders passed by the respondents Nos. 1 & 2 are violative of Arts. 14 and 16 of the Constitution of India and is otherwise illegal and invalid. The petitioners also seek the direction to respondent No. 1 to refix the seniority in accordance with the principles settled by this Court in Special Civil Application No. 1330 of 1969 and to re-arrange the seniority reflecting the ratio and quota as per the recruitment Rules right up from May 1 1560 and for declaration that the promotee officers were not entitled to any deemed dates and the petitioners were required to be allotted seniority in the list when the permanent posts of direct recruits were available but not filled in right from 1/05/1960 and thereafter till 2/02/1968 and also for a direction to respondents to give all consequential benefits to the petitioners in the matter of fixation of pay allowances promotion to the higher posts arrears of pay and allowances.

(2.) The final gradation list of Officers of DILRs cadre in the Land Records Department as on 30/04/1960 was published by the Government of Maharashtra Revenue & Forest Department by G. R. No. Est. 1071/253320(1) V dated 9/07/1974 The State of Gujarat was formed on 1/05/1960 The Government of Bombay vide Revenue Department Resolution No. Est/3456/L Bombay 25/08/1956 in supersession of the orders issued in G. R. No. 7191/45 dated 25/10/1948 decided that the recruitment to not less than 30% of the posts of DILRs which were approximately equivalent in status to the posts of second grade Mamlatdars should be made on the result of competitive examination to be held by the B.P.S.C. It was also directed by the said resolution that the competitive examination for the post of DILRs and for the post of probationary Mamlatdars should be common. The Government accordingly deleted the Rule 17A in Appendix D and substituted the Rules 5 & 6 in Appendix C of the Bombay Civil Services (Classification & Recruitment) Rules 1939 The Rule 5 in Appendix C provided for filling up the vacancies by promotion from among persons in the subordinate service of the Land Records Department or by nomination on the results of a competitive examination held by Public Service Commission. Requisite qualifications for direct recruits were also provided by the said Rules. So far as the proportion of the promotees and direct recruits for the post of DILR is concerned Rule 5 provided that not less than 30% and not more than 50% of the vacancies shall be filled by nomination and the rest by promotion. Rule 6 provided for the probation for 3 years and for passing other qualifying examination etc.

(3.) The contentions of the petitioners are that the seniority list is prepared contrary to statutory requirement of Rules and also against settled legal position as enunciated by the Supreme Court in case of N.K. Chauhan AIR 1977 SC 251 and the decision of Gujarat High Court in Special Civil Application No. 1330 of 1969 which laid down principles regarding fixation of seniority amongst direct recruits and promotees in the cadre. It was not open to the State Government to depart from the mandatory provisions of Rules which provided for the direct recruitment to the extent of not less than 30% and not more than 50% of vacancies in the posts of DILRs. According to petitioners their recruitment was made against the permanent vacancies and therefore the seniority was required to be fixed according to the confirmation and not on the basis of continuous officiation in the post. Their grievance is that by fixing the seniority of promotees they are pushed up in the vacancies available for direct recruits in each year and that is violative of principles of seniority laid down by the Supreme Court in case of N. K Chauhan (supra). As such the pronouncement of Supreme Court in case of N. K Chauhan was based on specific provisions in the Rules which provided for ratio of promotees and direct recruits as far as practicable. According to petitioners they should have been assigned seniority in the gradation list for the vacancies which are available right up from 1960 and which posts were not filled in by the respondent. State though it was not practicable or not feasible to fill up the requisite quota of direct recruits. They also made a grievance that even though three officers were already promoted from 1957 to 1959 are assigned the seniority in the gradation list.