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PETITIONER: K.S. VORA AND OTHERS

       Vs.

RESPONDENT: STATE OF GUJARAT AND OTHERS

DATE OF JUDGMENT27/10/1987

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH RANGNATHAN, S.

CITATION:  1987 AIR 2348            1988 SCR  (1) 611  1988 SCC  (1) 311        JT 1987 (4)   179  1987 SCALE  (2)835  CITATOR INFO :  R          1988 SC 294  (4)  C          1989 SC1794  (3)

ACT:      Seniority matter of government employees in the Gujarat Subordinate    Secretariat    Service-Gujarat    Subordinate Secretariat Service-(Seniority of Assistants) Rules, 1977.

HEADNOTE: %      The appellants  had joined  the government  service  as clerks-cum-typists before  the bifurcation, in May, 1960, of the State of Bombay into Maharashtra and Gujarat States. The Subordinate  Secretariat  Service  then  consisted  of  four grades-(i) Clerk-cum-typist,  (ii) Junior  Assistant,  (iii) Senior Assistant,  and (iv) Superintendent. On the formation of Gujarat State, Government business in the secretariat was divided  into  nine  separate  Departments  so  far  as  the Subordinate service  was concerned.  Later, by  a government Resolution, a  common cadre  of Superintendents  for all the departments was  created, and  promotion to  the post of the Superintendent was  directed to be made out of a common list of senior  assistants, and by another resolution, the grades of the  senior assistants  and junior assistants were merged into one  post termed  as Assistant,  and a common seniority list of  the Assistants  was prepared.  In October, 1974, by another Resolution, a common cadre of the clerks-cum-typists was created  and promotion  to the  post  of  Assistant  was provided  therefrom.   This  October   Resolution   of   the government was  challenged before the High Court by two writ petitions.  In   the  meantime,   the  Gujarat   Subordinate Secretariat Service  (Seniority of  Assistants) Rules, 1977, were  framed,   which  were  to  come  into  operation  with retrospective effect  from May,  1960. Rule  4 of  the Rules laid  down   the  principle  for  determining  seniority  by providing that seniority among promotees-Assistants inter se shall be  fixed on  the basis  of their length of service in the joint  cadre of  clerk-cum-typist for all Departments of the Secretariat as a whole.      The High Court passed an order, dismissing the two writ petitions. The  order of  the High Court is appealed against

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by Special  Leave in  this Court,  mainly on the ground that the retrospective operation of the Rules regarding seniority takes away  the vested  rights of  the appellants  of  their prospects of promotions.      Dismissing the appeal, the Court, 612 ^      HELD:  A   Common  cadre  was  created  for  increasing efficiency A  and in  the interests of discipline. After the formation  of   the  common   cadre,  general   feeling   of dissatisfaction  owing   to  disparity   of  seniority   was generated. The  1977 rules  were  introduced  to  ease  that situation.  The  scheme  of  the  Rule  regarding  seniority protected the  rank then held by every member of the service notwithstanding the  alteration  of  seniority  on  the  new basis.  To   that  extent,   the   1977   rules   were   not retrospective. [615B-C]      There was  no challenge  to the  creation of the common cadre. Secondly, the rules of seniority are a matter for the employer  to   frame,  and  even  though  the  prospects  of promotion were  likely to  be prejudiced by the introduction of some new set of rules to regulate seniority, if the rules were made  bona fide  to meet the exigencies of the service, no entertainable grievance could be made, and the appellants have no grievance to make. [615E-FI      Mervyn v.  Collector of  Customs,  Bombay  and  others, [1966] 3  S.C.R.600; Roshan  Lal Tandan  v. Union  of India, [1968]1 S.C.R.185  and State  of Jammu  & Kashmir v. Triloki Nath Khosa & others, [1974] I S.C.R. 771, relied upon.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 712 F. Of 1980.      From the  Judgment and  order dated  20.12.1978 of  the Gujarat High Court in Special C.A. No. 1()73 of 1975.      V.M. Tarkunde,  Dr. D.Y.  Chandrachud, S. Bharatari and P.H. Parekh for the Appellants.      P.S. Poti,  M.N. Shroff,  K.M.M. Khan  and Mrs. H. Wahi for the Respondents.      The Judgment of the Court was delivered by      RANGANATH MISRA,  J. This  appeal by  special leave  is directed against the judgment of the Gujarat High Court in a dispute centered  round seniority of government employees in the Gujarat Sub ordinate Secretariat Service.      The short  facts necessary  for  disposal  of  the  two contentions raised in this appeal are the following: 613      On May 1, 1960, the State of Bombay was bifurcated into two States  Maharashtra and  Gujarat. Prior to that date the six appellants  in this appeal had joined Government service as Clerks-cum-typists.  The Subordinate  Secretariat Service was then  divided into four grades (i) Clerk-cum-typist (ii) Junior   Assistant   (iii)   Senior   Assistant   and   (iv) Superintendent. Promotions  were available  from  the  lower tier to  the upper one. When Gujarat became a separate State Government business  in the  Secretariat was  divided into 9 departments  separate   in  every  respect  so  far  as  the Subordinate service was concerned. On October 12, 1960, by a Government Resolution  the cadre of Superintendents became a common one  covering all the departments in the Secretariat. Until then  seniority was  being determined  department wise and promotions  had also been regulated on the same basis in all the  four grades. Under the new arrangement promotion to

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the post  of  Superintendent  was  handled  by  the  General Administration Department  out of  a common  list of  Senior Assistants. On  September 25, 1964, under another resolution of Government  the grades  of Junior  Assistants and  Senior Assistants were merged into a single one known as Assistants w.e.f. October  1, 1964,  and a  common  seniority  list  of Government servants  working as  Assistants was  prepared. A quota system  was introduced  for recruitment of Assistants. At one  state, the  ratio was  3:  1,  promotees  being  the smaller proportion and later it was changed to 2: 1. On July 19, 1969,  a seniority  list of  Assistants was  prepared on quota basis  and taking  into account continuous officiation in the cadre of Assistants. The list was assailed before the High Court.  The court found by judgment dated March 9, 1972 that promotees  were in  excess of the ratio and accordingly gave direction  for a  fresh list to be drawn up. On October 11, 1974,  Government resolved  to have  a common  cadre  of Clerk-cum-typist and  promotion to the post of Assistant was provided therefrom.  In  1975,  the  October  Resolution  of Government was  challenged before  the High  Court by filing two writ petitions. In the meantime, in 1977, a set of rules known  as   the  Gujarat   Subordinate  Secretariat  Service (Seniority of  Assistants) Rules, 1977 were framed under the proviso  to   Article   389   of   the   Constitution   with retrospective effect  from May  1, 1960. Rule 4 of the Rules laid  down   the  principle  for  determining  seniority  by providing that  seniority  among  the  promotees  Assistants inter se  shall be  fixed on  the basis  of their  length of service in  the joint  cadre  of  Clerk-cum-typist  for  all departments of  the Secretariat  as a  whole.  In  December, 1978, the  two writ petitions were dismissed. The High Court held that  the object  of the  Rules of 1977 was to equalise the chances  of promotions  to the selection cadre and since the rules  took care  of the  promotee officers  by ensuring non-reversion, the rules were indeed not retrospective. H 614 Several consequential  dircctions were  given.  It  is  this judgment which is now under appeal.      The main  contention advanced  by Mr.  Tarkunde in  the appeal is that the rule regarding seniority is retrospective in  operation  and  takes  away  the  vested  right  of  the appellants to  prospects of  promotions. In  support of  his submission he has relied upon three decisions of this Court, namely, Mervyn  v. Collector  of  Customs,  Bombay  &  Ors., [1966] 3  SCR 680;  Roshan Lal  Tandan v.  Union of India, [ 1968] 1 SCR 185 and State of Jammu & Kashmir v. Triloki Nath Khosa &  ORS., l  1974] 1  SCR 77  1. Each one of these is a decision of  the Constitution  Bench. We do not find that on facts any  of these  cases has  any support to offer for the point in  dispute. Mervyn’s  case was  that of Appraisers of the Customs  Department and challenge was to the validity of the rotational  system in  fixing the seniority of Principal Appraisers.  The  Court  struck  down  the  method  used  by Government in  fixing the  seniority of Principal Appraisers on  a   finding  that   there  was  denial  of  equality  of opportunity. The dispute in this case is different from what came in Mervyn case for determination. This will be apparent when we  presently deal  with what exactly is the problem in the  matter   before  us.   Roshan  Lal’s  case  dealt  with recruitment into  one cadre  from  two  sources.  Even  when recruitment from  the two  sources merged  into  one  cadre, favourable. treatment  was given to recruits from one source regarding further  promotion. The  Court found  this  to  be violative of  Articles 14  and 16  of the Constitution. This again is  not relevant  for resolving  the dispute  in hand.

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Triloki Nath’s case was dealing with the Engineering Service of Jammu  & Kashmir. There was direct recruitment of decree- holders in  civil engineering as also- by transfer of degree or diploma-holders  who had  served  as  Supervisors  for  a period of not less than 5 years for recruitment to the cadre of Assistant  Engineers. The  relevant  rule  provided  that recruitment to the post of Executive Engineers and above was to be  made by  promotion only  and Assistant  Engineers who possessed a  degree in  engineering alone  were eligible for such   promotion.   This   rule,   therefore,   disqualified diplomaholders for being promoted as Executive Engineers and they  challenged   the  constitutionality  of  the  rule  by contending that  it was discriminatory. The Court found that even after  there was  one cadre,  for the  promotional post therefrom, a  higher qualification  could be  prescribed and those out of the common cadre who satisfied that requirement could be made eligible for promotion.      As we  have already pointed out in the instant case the State decided  at stages  to switch over to the common cadre in respect  of  all  the  four  grades  of  the  Subordinate Service. Before common grades 615 had been  formed promotion  was granted departmentwise. When ultimately a  common cadre  came into existence-and all that was done  by 1974-it was realised that if seniority as given in the  respective departments  were taken  as final for all purpose there  would be  prejudice. Undoubtedly  the  common cadre was  for the  purpose of  increasing the efficiency by introducing a  spirit of  total competition by enlarging the field of  choice for filling up the promotional posts and in the interest  of discipline  too. After  a common  cadre was formed, the general feeling of dissatisfaction on account of disparity of  seniority became apparent. The 1977 Rules were introduced in  this background  to ease  the situation.  The scheme of  this rule  protected the  rank then held by every member  of   the  service   notwithstanding  alteration   of seniority on  the new  basis. This, therefore, made it clear that accrued  benefits were  not to  be interfered  with. To that extent the 1977 Rules were not retroactive. In spite of the protection  of Rule  regarding the  post then  held, the Rules brought  about a  change in  the inter se seniority by adopting the  date of  initial recruitment and the length of service became  the  basis  for  refixing  seniority.  Total length of  service for  such purpose is a well-known concept and could  not said  to be arbitrary. Undoubtedly one of the consequences of the change in the basis was likely to effect prospects of  promotion-a matter in future. Two aspects have to be  borne in  mind while considering the challenge of the appellants to  this situation. It was a historical necessity and the  peculiar situation  that arose  out of Government’s decision to  create a  common cadre  with four grades in the entire  Secretariat.   We  would  like  to  point  out  with appropriate emphasis that there was no challenge to creation of the  common cadre  and certainly Government was competent to do  so. The  second aspect  to be  borne in  mind is that rules of  seniority are  a matter  for the employer to frame and even though prospects of promotion in future were likely to be  prejudiced by  introduction of  a new set of rules to regulate seniority,  if the rules were made bona fide and to meet exigencies  of the  service, no entertainable grievance could be  made. If  these are  the tests to apply, we do not think the  appellants have  indeed any grievance to make. In our view,  therefore, the  High Court  rightly dismissed the contention and  found that  appellants were  not entitled to relief

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    Mr. Tarkunde  next urged  about the quota. We find that the High  Court has  not dealt  with the question. We do not propose to go into that aspect.      We accordingly  dismiss the appeal but leave parties to bear their own costs throughout. S.L.                                       Appeal dismissed. 616