http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

PETITIONER: C.KRISHNA GOWDA & ORS, ETC, ETC.

       Vs.

RESPONDENT: STATE IF KARNATAKA & ORS.

DATE OF JUDGMENT:       02/02/1998

BENCH: M. SRINIVASAN

ACT:

HEADNOTE:

JUDGMENT:                THE 2ND DAY OF FEBRUARY, 1998 Present:                  Hon’ble the Chief Justice                  Hon’ble Mr.Justice M.Srinivasan M.Rama Jois,  Kapil Sibal,  V.C. Mahajan,  Sr, Advs.,  Manoj Goel,  Ms.   Indu  Malhotra,   S.N.Bhat,  Ms.   Binu  Tamta, K.R.Nagaraja, K.K.Tyagi,  P.Mahale, D.K.Garg,  Satpal Singh, (R.C.Kaushik) Adv.(N.P.), P.N.Gupta, Anis Suhrawardy, Advs., with them for the appearing parties.                       J  U D G M E N T The following Judgment of the Court was delivered: Srinivasan. J.      Leave granted in all the S.L.Ps.      The phoenix  has risen  again. Admittedly  this is  the fourth round  of litigation  in the dispute which germinated about three  decades and  three years ago between two groups of employees  in Karnataka Administrative Service. One group comprises   persons    directly   recruited   as   Assistant Commissioners in  Group ‘A’  (junior scale)  while the other consists of  Tehsildars promoted as Assistant Commissioners. This matter  came to  this Court  on three occasions and the relevant Rules  were considered  elaborately and interpreted on two  of them.  The history  of the  Rules  governing  the service need  not be repeated here as it has been set out in detail in the previous rulings. 2.   The Government  of Mysore  published a  gradation  list prepared as  on  January  1,1972  by  a  notification  dated January  13,1972  fixing  the  seniority  of  the  Assistant Commissioners. The  same was  challenged in  V.B. Badami Vs. State of   Mysore  (1976) 2  S.C.C. 901 Before this Court as many as  six contention  were urged, the first of them being that the  quota rule  applied  to  vacancies  in  all  posts whether permanent or temporary. All the six contentions were rejected. While  dealing with  the  first  contention,  this Court give three principal reasons :- I.   The cadre consisted only of permanent posts. II.  The advertisement  of  the  Public  Service  Commission stated that the posts were likely to be made permanent. III. Rule 9  of the  Mysore  Government  Servants  Probation Rules provided  for confirmation  of a Probationer as a full

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

member of  the service  at the  earliest opportunity  in any substantive  vacancy   which  may  exist  or  arise  in  the permanent cadre of the service. 3.   The court  went on  to  hold  that  the  quota  between promotes and  direct recruits was to be fixed with reference to the  permanent strength  of 135  junior duty  posts.  The cadre strength  was found to be 135 permanent posts. In para 34 of the judgment, the court said that so long as the quota rule remained,  neither promotes could be allotted to any of the substantive  vacancies meant  for the  quota  of  direct recruits  nor   direct  recruits   could  be   allotted   to promotional vacancies.  Ultimately the  court dismissed  the appeals rejecting the claim of the promotes. 4.   That judgment  was delivered  on September 17,1975. The state government  issued an  official memorandum  on July 5, 1976 laying  down guidelines  for determination of seniority between the direct recruits and promotes. The Gradation List of Junior Scale a Officers as on June, 30, 1973 was drawn up on the  basis of  such guidelines and notified on August 10, 1976. In  the meanwhile  on 3rd  March, 1976  the Government passed an  order number  GAD 590   SMC dated 3.3.1976.  with reference to the fixation of cadre strength of K.A.S (Junior Scale). As  strong reliance  is placed by the petitioners on the said order in support of their contention that the total cadre  strength  was  increased  to  285  by  including  133 temporary posts  under the  government order it is necessary to extract the operative part thereof:           ORDER NO. GAD 590 SMC 74.      BANGALORE. DATED THE BRD. MARCH      1976. READ      G.O.No.   GAD    110   66,    dated      23.1.1967.      In    Government     order    dated      23.1.1967,  the   permanent   cadre      strength  of  KAS  Class-I  (Junior      Scale)  was   fixed  at   151.  The      composition of  the cadre  has  not      are no  longer held  by KAS Class-I      (Junior Scale) Officer because they      have  been   upgraded  to  the  KAS      (Senior Scale)  or are  now held by      officers    of    the    respective      Departments.  The   present   cadre      reviewed  in  the  light  of  these      changes. In  the past the temporary      posts held  by KAS Class-I (Junior-      Scale) were  treated  as  temporary      additions to the cadre from time to      time. It  is now  proposed to  show      the permanent  and temporary  cadre      strength in  a common order to have      a clear picture of the cadaro.      Accordingly, Government  hereby fix      the permanent  and temporary  cadre      strength   and    temporary   cadre      strength of  KAS  Class-I  (Junior-      Scale) as shown in the Appendix.      This issues with the concurrence of      Finance Department  vide U.O.No. FD      248/8-I 75, dated 27.1.1976.      In the  appendix 133  posts  were  set  out  under  the caption ‘Temporary  posts  under  State  Government’  in  29 categories. A  list  of  152  Permanent  posts  under  State Government is  also set  out therein and the permanent cadre strength was mentioned as 152.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

5.   By notification  dated February  2,1977, the  gradation list was published. In June  1977, Karnataka  Civil Services  (Probation)  Rules were framed  in exercise  of the  power conferred by Article 309 of  the  Constitution.  Rule  2(ii)  thereof  defined  a probationer, as  a government  servant on  probation. Rule 9 thereof read as follows:      "9.  Confirmation   -  Subject   to      subject  (4)  of  rule  19  of  the      Karnataka  State   Civil   Services      (General Recruitment)  Rules, 1977,      a probationer who has been declared      to  have  satisfactorily  completed      his probation shall be confirmed at      the  earliest  opportunity  in  any      substantive vacancy which may exist      or arise:           Provided that  where more than      one   approved    probationer    is      available  for  such  confirmation,      the      senior-most       approved      probationer on  the date of vacancy      shall be confirmed." 6.   On a representation made by some of the direct recruits of 1974  batch for  refection of  inters  seniority  in  the gradation list,  the State  Government passed  an  order  on 22.5.80. Challenging  the same  certain promotes  filed writ Petitions in  the Karnataka  High Court.  The writ Petitions were disposed  of by the High Court on 8.9.82 when they were partly allowed.  The Government Order of 22.5.80 was quashed and a direction was issued to the State Government to modify the gradation list earlier published in August 1976. In that judgment, the High Court analyzed the judgment of this Court in Badami’s  case 1976  (2) SCC 901. It was observed that it was not  open to the High Court to speculate what would have been the  conclusion of  this court  if  it  had  known  the correct factual  position that  the cadre  of  junior  scale consisted of  both the  permanent and temporally posts. Thus the High  Court expressed  a doubt  that this  Court was not aware of  the correct  factual position  when it disposed of Badami’s case.  However, the  High Court  observed that  the judgment of  this Court  would bind  not  only  the  parties thereto but  also the  other promotes  who were  petitioners before it. 7.   The judgment  of the  High Court was challenged in this court in a batch of Appeals by Special Leave. Writ Petitions under Articles  32 were  filed by  direct recruits.  All the cases were  heard and  disposed of  by a  common judgment on August 11, 1987.  The same is reported in Gonal Bhimappa Vs. State of  Karnataka 1987 (SUPPT), S.S.C. 207. This court set out the following aspects for determination.      "(i) what  is  the  effect  of  the      quota  rule   in  the   matter   of      fixation of  inter seniority in the      Gradation List  so far  as recruits      from    different    sources    are      concerned ?      (ii)  Thought  admittedly  in  1957      under the  relevant rule,  a  quota      existed, was  that basis altered or      given up during the relevant period      ?      (iii) what  is the  effect of  this      Court’s judgment  is  Badami  case?      Was  the   High  Court  correct  in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

    observing that this Court would not      have come  to the  conclusion  that      quota was  confined to  substantive      vacancies only if the true state of      facts was known ?      (iv) what  is  the  effect  of  the      observation in Issuer case and does      it supersede  the  rule  in  Badami      case ?      (v)  Does the situation highlighted      in  this  case  require  any  other      direction ? 8.   Aspect No.2  is relevant  for the purpose of this case. The answer  thereto is  found in paragraphs 12 and 13 of the judgment which read as follows:      "12. There  was no  dispute  either      before the  High Court or before us      that  in   the  1957   Rules  there      existed  a  quota  for  filling  up      vacancies in  the  Class  I  Junior      Scale posts.  The High  Court found      that the quota continued throughout      during the  relevant period. Before      us  Mr.   Nariman  supported   that      finding while Mr. Kacker maintained      that the  quota has  in later years      been given  up. Rule  e  of  Mysore      Recruitment       of       Gazetted      Probationers Rules,  1959 made  the      following provisions:      (1)   The provisions of these rules      shall be  applicable in  respect of      direct recruitment  the  cadres  in      competitive  examination   by   the      Commission.      (13)   On   August   11.1977,   the      Karnataka  Administrative   Service      (Recruitment)  (Amendment)   Rules,      1977 came  into  o  force.  Rule  2      thereof provided :          Amendment  to  Schedule-In  the      Schedule    to     the    Karnataka      Administrative              Service      (Recruitment) Rules,  1977 for  the      entries  at   the  Item   (b)   the      following   entires    shall,    be      substituted, namely:      -----------------------------------      1            2           3      -----------------------------------           (b) All Class I (i) 50 percent      of For  (Junior Scale) vacancies to      be Posts      -----------------------------------      Unless the  1957 Rules, remained in      force till  1977, there  would have      been reality  no necessity to refer      to  them   for  the   purposes   of      amendment. Badami  case did proceed      on  the   footing  that  the  quota      system  in  the  Recruitment  Rules      continued till  1971-72. It  is not      Mr.  Kacker’s  case  that  anything      happened after  1972 which  brought      about dissolution  of the quota. We

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

    reject the contention of Mr. Kacker      that  the  quota  system  had  been      abandoned and  confirm the  finding      of the High Court in that r regard.      It is,  however, a  fact  that  the      ratio has been changed from time to      time."      While considering  the 3rd  aspect,      the Bench said:-      "15. The  conclusion  indicated  in      the decision  of the  learned Chief      Justice of  this  Court  in  Badami      case had been supported by reasons.      As it  would appear  at Page 819 of      the Reports, this aspect was raised      as the first of the six contentions      formulated for consideration of the      Court. Keeping  the  facts  of  the      case  in   the  background,   three      reasons  were   indicated  in   the      judgment for  the  conclusion  that      Reference  was   made  to   certain      decisions of  this Court as also to      Rule 9  of the  Probation Rules  of      1959.  It  was  held  that  Rule  9      established   the    exclusion   of      temporary  posts  from  the  cadre.      Royappa case  was relied  upon  for      the same  conclusion by saying that      posts  temporarily   added  to  the      cadre by  exercise of power under a      permissive rule  would  not  become      cadre  posts  and  temporary  posts      careered due  to exigencies  of the      service should  be treated as posts      outside the  cadre. The  High Court      in  the  judgment  in  Kadali  case      relied upon  Note 2  of Rule  49 of      the KCSR   and  thought  that  this      Court was  not properly informed of      the  factual   situation  when   in      Badami case  it said that temporary      posts were  not to  be  taken  into      consideration for  the  purpose  of      working out  the quota. The note of      Rule 49  has indeed  no bearing  on      the point  and we  are of  the view      that   there    was    really    no      justification   for    the    doubt      indicated by  the High Court. Apart      from the  fact that  the conclusion      of this  Court in  Badami  case  on      this score  is a  binding authority      on us,  from an  examination of the      matter  we   also  reiterate   that      conclusion to be correct." 9.   Thus this  court affirmed  the   principle laid down in Badami’s Case  and allowed the appeals and writ petitions of the direct  recruits while  dismissing the  appeals  by  the promotes. The  decision was  sought to  be reviewed by a few promotes in Review Petition Nos. 880-881 of 1987. They were dismissed on 23.9.87. 10.  Following the  said ruling,  the government published a notification on  30.4.1990 reviewing  the promotions  of the petitioners assigning  to them  the dates of eligibility for

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

promotion  to  the  cadre  of  Junior  Scale  has  Officers. Simultaneously, a  seniority list  of  direct  recruits  and promotes to  the cadre of KAS  (Junior Scale) was published. Challenging the  same  the  aggrieved  promotes  field  writ petitions under Article 32 of the Constitution in this court seeking reconsideration  of the decision in Gonal Bhimappa’s case. The partitions were kept pending after notice awaiting the decision  by the  Constitution Bench  in Direct Recruits Class II  Engineering Officers  Association Versus  State of Maharashtra 1990  (2) S.C.C.  715 after  the decision of the Constitution Bench  the writ  petitions of the promotes were disposed of by the court with a direction to the petitioners to approach  the High  Court and  seek appropriate remedies. Though this  court directed  the petitioners to approach the High Court  they had to approach the Administrative Tribunal as by  that time the Tribunal had been constituted under the provision of  the  Administrative  Tribunals  Act.  Pursuant thereto,  the   petitioners  filed  application  before  the Tribunal. The substantive prayer made by the petitioners was to quash  the notification  number DPARB  SKG 89(1)    dated 30.4.90 and  the gradation  list of  Assistant Commissioners accompanying it.  The basis  of the claim of the petitioners before the  Tribunal was  that the  correct factual position was not  placed before  this court in Badami’s case or Gonal Bhimappa’s case  and the  decisions therein were not binding and in any event went to the extent of contending before the tribunal that the judgments were per incuriam. 11.  The Tribunal  perused the  records in  Gonal Bhimappa’s case and  arrived at  a factual  finding that this court was dealing with  an identical  set of  facts in  that case. The Tribunal also  found that  the decision  was based  upon the interpretation of  the same  rules and  orders. The Tribunal opined that it was impermissible to take a different view in the present case. It was contended before the Tribunal, that some observations  made in  the order  of this court whereby the petitioners were directed to approach the High Court and seek appropriate remedies on the basis of the ruling  in the Direct Recruit’s  case 1990  (2) S.S.C. 715 would enable the petitioners to reagitate the matter decided by this court in Gonal Bhimappa’s  case. That  contention was rejected by the Tribunal which  held that  there was  no specific  direction permitting the  High Court or the Tribunal to reconsider the issue. The Tribunal also placed reliance on certain passages in the judgment  of the Constitutions Bench of this Court in that case  to the  effect that a decision concerning a large number of  government servants in a particular service given after careful  consideration of rival contentions is binding on all of the members of the service. After referring to the judgments of  this  court  in  various  cases  the  tribunal dismissed  the   petitions  upholding  the  correctness  and validity of the government order. 12.  Aggrieved thereby,  the petitioners  have  filed  these petitions for  leave to  appeal to  this court  against  the judgment of the Tribunal. Having regard to the long pendency of the  disputes the  matters have  been  posted  for  final disposal, after notices in the petitions have been served on the  respondents  and  both  the  parties  have  been  given sufficient opportunity to file their respective pleadings. 13.  Before us  learned senior  counsel for  the petitioners has submitted  that the  decision of  this court in Badami’s case was  based on the factual situation then prevailing and he has no quarrel with the same. Though learned counsel said that he  is not  challenging the correctness of the decision in Gonal  Bhimappa’s case,  the effect  of this  argument is that the  relevant rules  and  the  government  orders  were

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

overlooked in  the  said  decision.  According  to  him  the government order  dated 3.3.1976,  the relevant  portion  of which has  been extracted,  already had  increased the cadre strength to  285 posts  inclusive  of  the  temporary  posts mentioned therein and in view of the amendments of the Rules in 1977,  the quota for the promotes should be fixed on that basis and not on the footing that the cadre consisted of 152 permanent posts  only. It is also his contention that Rule 9 as amended  in 1977  was not  brought to  the notice of this court when  Gonal Bhimmappa  was decided.  It is his further contention that  as the writ petitions filed by the promotes under Article 32 of the Constitution were disposed of with a direction to  the petitioners to approach the High Court and raise all  the points  which were raised in those petitions, besides other  points, which they want to raise on the basis of the  decision in  ‘Direct Recruits’  Case, it was open to the  Tribunal   to  reconsider   the  entire   issue  afresh unfettered by  the decision  in  ‘Gonal  Bhimappa’.  Learned counsel has  also brought to our notice that in another case before  the   same  Administrative   Tribunal  relating   to Commercial Taxes  Department a  different view  was taken by the Tribunal.  Learned counsel  has also  placed before us a copy of  the order  of this court dated 12.7.1995 in Keshava Ramaswamy Versus  State of Karnataka 1995 K.S.L.J.(S.C.) 767 wherein it  has been held that the cadre comprised temporary posts also. 14.  We are  unable to  accept any  of  the  contentions.  A perusal of  the government order dated 3.3.76 shows that the temporary posts  mentioned in the Appendix were not included in the cadre. By that order, the government had only given a clear picture  of the  cadre  in  one  order.  The  Appendix referred to  permanent cadre  strength as 152 posts. Similar language is  not used  with reference  to the  193 temporary posts mentioned  in the  first part  of the Appendix. We are unable to  persuade ourselves  to hold  that the  government order increased  the strength of the cadre to 285. According to learned  counsel the  government order  should be reading conjunction with Rule 9 of the Probation Rules as amended in 1977. That  rule refers  only to substantive vacancy and the confirmation of  the probationer.  Learned Counsel  for  the respondents  submits  that  none  of  the  petitioners  were appointed on probation and the rule has no application here. Be that  as it may, the order of the government dated 3.3.76 cannot be  understood in  the light  of a  rule subsequently framed when  by itself the government order did not have the effect of  increasing the  strength of the cadre. Hence, the contention  of   learned  counsel   for  the  petitioner  is rejected. 15.  We have  already referred  to the  relevant passages in the judgment  of this court in ‘Gonal Bhimappa’. There is no doubt whatever that the relevant rules and government orders and in particular, the order dated 3.3.76 were placed before this court and considered. This court had taken care to find out whether  the observations  of the High Court in Kadali’s case 1982  (2) KLJ  453 that  the factual  situation was not brought to  the notice  of this  court in  Badami’s case was correct or  not. This  court round that the observation made by the High Court was erroneous and the decision in Badami’s case was  based on correct faces. The Tribunal has now found after going  through the  records in  Gonal Bhimappa’s  case that the  facts were identical and the questions raised were identical. In  such a  situate there  is no  escape for  the petitioners from  the ruling  in Gonal Bhimappa’s case which is binding  on them.  The Tribunal  has also  found that the impugned government  notification dated  30.4.1990  and  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

accompanying Gradation List are in pursuance of the decision of this Court in ‘Gonal Bhimappa’. Hence there  is no merit in the challenge of the same by the petitioners. 16.  The fact  that the  same tribunal had taken a different view in  another case  will not  help the petitioners in any manner. That  case relates  to  another  department.  It  is unnecessary for  us to  consider  the  correctness  of  that decision of the Tribunal. 17.  The judgment of this court in Keshava Ramaswamy Gowda’s case too  does not  help the petitioner. It is seen from the order therein  that the court dealt with Class-II posts only and  distinguished  ‘Badami’  on  the  ground  the  tit  was concerned only  with Class  I posts. In this present case we are concerned  only with  class. I  points and the ruling in Keshava Ramaswamy Gowda will not apply. 18.  We have  no hesitation  to uphold  the judgment  of the Tribunal and  dismiss these  appeals, which  we  do  hereby. There will be no order as to costs.