http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 24  

PETITIONER: RAMCHANDRA SHANKAR DEODHAR & ORS.

       Vs.

RESPONDENT: THE STATE OF MAHARASHTRA & ORS.

DATE OF JUDGMENT12/11/1973

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. RAY, A.N. (CJ) PALEKAR, D.G. CHANDRACHUD, Y.V. KRISHNAIYER, V.R.

CITATION:  1974 AIR  259            1974 SCR  (2) 216  1974 SCC  (1) 317  CITATOR INFO :  R          1974 SC1631  (15)  R          1975 SC 511  (11)  RF         1975 SC 538  (18)  R          1985 SC1272  (3)  RF         1986 SC1445  (9)  RF         1986 SC1830  (18,19,21,23)  R          1990 SC 166  (12)  E&D        1990 SC 772  (22,32)  RF         1991 SC1676  (72)

ACT: Constitution  of India, 1950, Art.  32.-Laches,  alternative remedy and necessary Parties. States  Reorganisation Act, 1956-State of  Bombay-Rules  for Promotion from divisional cadre of Mamlatdars to State Cadre of Deputy Collectors Not made on State-wide basis-Validity.

HEADNOTE: The  petitioners  were Tahsildars in the  quondam  state  of Hyderabad.   After the new state of Bombay  was  constituted with   territories  drawn  from  various   existing   States including  Hyderabad, under the States  Reorganisation  Act, 1956,  equation  of  posts and  determination  of  inter  se seniority  was  done by the Allocated  Government  Servants’ (Absorption,  Seniority.   Pay and Allowance)  Rules,  1957. Under these rules (1957-Rules) the Government of Bombay dec- lared  that  the posts of Mamlatdar in the former  State  of Bombay  shall  be deemed to be equivalent to  the  posts  of Tahsildars from the former State of Hyderabad, and the posts of  Deputy Collector in the former State of Bombay shall  be deemed  to  be equivalent to the posts of  Deputy  Collector allocated   from  the  former  State  of   Hyderabad.    The recruitment  to the posts of Deputy Collector  was  provided for  by Rules of 30th July, 1959, (1959-Rules) according  to which vacancies to the posts of Deputy Collector were to  be filled  from three sources : 50% by nomination on the  basis of the result of  competitive examination; 25% by  directly. recruited  Mamlatdars  who  have put in at  least  7  years, service  including  the period spent on  probation  and  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 24  

remaining 25% by Mamlatdars promoted from the lower ranks in the  revenue departments.  The reservation of 25% in  favour of  directly  recruited Mamlatdars was made  by  the  second proviso  to rule (1) of the Rules.  On 7th April,  1961  the Government  laid  down the principles,  for  regulating  the preparation    and    revision    of    select    list    of Mamlatdars/Tahsildars   fit  to  be  appointed   as   Deputy Collectors  in  posts  to  be  filled  by  promotion.    The procedure  provided that a Review Committee should in  July- August  each  year review the claims of all  Mamlatdars  for promotion  to the posts of Deputy Collector and should  draw up  a  select  list  for each  division  of  those  who  are considered  by the Committee as fit for promotion.   When  a vacancy arose in the posts of Deputy Collector in a division the  Mamlatdar  whose  name was highest  in  the  divisional select list was promoted as officiating Deputy Collector  in the  vacant  post.  The name of such  Mamlatdars  though  so promoted,  continued in the divisional select list until  he was  confirmed in the cadre of Deputy Collectors or  retired from service.  There was a periodical review of the  working of the officiating deputy collectors and on such review  the rank  in  the divisional select list was adjusted so  as  to reflect  the  assessment  of  the  relative  merits  of  the ,officiating   deputy   collectors.    The   promotions   as officiating  deputy  collectors  were  thus  made  for  each division  separately on the basis of its  divisional  select list  in which the ranking changed periodically as a  result of review and assessment.  Then, deemed dates of  continuous officiation were given to the officiating deputy  collectors from each division with a view to ensure that their inter se ranking  in the divisional select list was not  affected  by the  fact that an officer lower in rank in the  divisional,- select list might have been officiating as Deputy  Collector for  a  longer period than another in higher rank.  _On  the basis of the deemed dates of continuous officiation given to the officiating Deputy Collector in each division a combined statewide  seniority list of officiating  Deputy  Collectors was  prepared  and  confirmation  in  the  cadre  of  Deputy Collectors  were  made in accordance with the  seniority  in such combined statewise seniority list.  This procedure  did not   have   the  warrant  of  any  legislative   rules   or administrative orders.  It was in accordance with this  pro- cedure  that  the petitioners were promoted  as  officiating Deputy Collectors but 2 1 7 some   of  the  allocated  Mamlatdars/Tahsildars  in   other divisions   who  were  junior  to  the  petitioners   became officiating  Deputy Collectors earlier than the  petitioners and were consequently entitled to be confirmed in-the  cadre of Deputy Collectors in preference to the petitioners.  The petitioners filed a writ petition in this Court, challenging the procedure for promotion, HELD  : The second proviso to rule (1) of the 1959-Rules  is void as being violative of Art. 16 of the Constitution.  The procedure  for promotion to the cadre of  Deputy  Collectors followed  by  the  State Govenment is also  invalid  on  the ground  that it denies equality of opportunity of  promotion and  is  therefore hit by Art 16 of  the  Constitution,  and hence the Government resolution dated 7th April 1961 must be quashed.    The   State  Government  should   readjust   the promotions  as  officiating Deputy Collectors  as  also  the confirmation  in  the cadre of Deputy.  Collectors  and  the readjustment  should be made with retrospective  effect  and the  petitioners should be given the benefit  of  seniority, pay and other allowances from the respective dates on  which

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 24  

they  would have been promoted had the promotions been  made on the, correct basis. [238E-G], (1)The petitioners were not guilty of any laches or delay in filing the petition. [226F] (a)  The  rule that the Court may not inquire  into  belated and  stale  claims  is  not a rule of law,  but  a  rule  of practice  based  on exercise of  sound  judicial  discretion depending  on the facts of each case.  In the present  case, in  January  1961, the petitioners were  informed  that  the rules of recruitment to the posts of Deputy Collector in the reorganised  State of Bombay had not yet been unified,  that the petitioners continued to be governed by the rules of the exHyderabad  State and that the 1959-Rules did not apply  to them.   It  was  only when the  Bombay  High  Court  decided Kapoor’s case on 23rd March 1968, that the petitioners  came to  know that it was.the case of the State Government  which was  accepted by the High Court, that the  1959-Rules  we-re the  unified  rules of recruitment to the  posts  of  Deputy Collector  applicable  throughout the reorganised  State  of Bombay.  The petitioners thereafter did not lose any time in filing the present petition. [226F-G 227 A-C] (b)  Moreover,  what is challenged is the  validity  of  the procedure  for  making  promotions to the  posts  of  Deputy Collector  and since this procedure is still being  followed by  the State Government it is desirable that its  constitu- tionality  should be adjudged when the question has come  up before the Court. [227C-D] (c)In the present case all promotions that have been made by State  Government are provisional and the position  has  not been  crystallised.  Even if the petitions were allowed  and the reliefs claimed by. the petitioner were granted to them, it would not result in the reversion of any Deputy Collector or   officiating  Deputy  Collector  to  the   position   of Mamlatdar/Tahsildar.   The  only effect would be  merely  to disturb  their  inter  se seniority  as  officiating  deputy collectors  or  as  deputy collectors.  Hence  there  is  no question  of rights, which have accrued to others by  reason of the delay in filing the petition, being disturbed. [227G- 228B] (d)  The  claim of enforcement of the fundamental  right  of equal opportunity under Art. 16 is itself a right guarantees under  Art. 32 and this Court, which has been  assigned  the role  of  a  sentinel  on  the  qui  ve  for  protection  of fundamental  rights, cannot allow itself to be persuaded  to refuse  relief solely on the ground of laches. delay or  the like. [228B-C] Tilockchand  Motichand v. H. B. Munshi [1969] 2 S.C.R.  824, referred to. (2)  The petitioners could not be said to have any  adequate alternative legal remedy. [228F-G] (a)The petitioners could not have applies for review of  the judgment  of the Bombay High Court in Kapoor’s  case.   They were  not  persons directly or immediately affected  by  the judgment  and it could not be said that they were  necessary parties  to the petition who should have been  heard  before the judgment was given. [228D-E] 218 (b)  The subject matter of the present petition is,  barring only one question namely the validity of the second  proviso to rule (1) of the 1959-Rules, wholly different from that of the petition in Kapoor’s case [228E-F] (e)  The  remedy  by way of review of a  judgment  given  in another case in which the petitioners were not parties could hardly  be said to be an adequate alternative  legal  remedy available to the petitioners. [228F-G]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 24  

(3)  Those  who  are  already  promoted  according  to   the impugned   procedure  and  whose  position   vis-a-vis   the petitioner   would   be  likely  to  be  affected   by   the invalidation  of  such  procedure are before  the  Court  as parties  to  the  petition.  All  those  who  are  necessary parties  are  before the Court, and there is,  therefore  no impediment in the way of the Court dealing with the  matter. [228H] (4)  The  inter  se seniority of  the  Tahsildars/Mamlatdars allocated from the former State of Hyderabad etc., would  be governed  by rr. 7, 8 and 9 of the 1957-Rules;  and  neither the  Government  resolution  dated  21st  November  1941  as contended by the petitioners, nor the government  resolution dated  29th July 1963 which superseded the  1941-Resolution, would have any application. [229C-E] (5)  A  right to be considered for promotion is a  condition of  service,  but  mere chances of promotion  are  not.   By making   promotions  to  the  posts  of   Deputy   Collector divisionwise  and  limiting such promotions to  50%  of  the total  number of vacancies in the Posts of Deputy  Collector as  a  result of the 1959-Rules, all that  happened  was  to reduce   the   chances  of  promotion   available   to   the petitioners.   A rule which merely affects the  chances  ’of promotion  cannot  be  regarded as varying  a  condition  of service.    Therefore,  neither  the  1959-Rules   nor   the procedure  for  making  promotions to the  posts  of  Deputy Collector  divisionwise varies the conditions of service  of the  petitioners to their disadvantage, and hence could  not be assailed on the ,round that the previous approval of the Central Government as required by the proviso to S.    115(7) of the Estates Reorganisation Act was not obtained. [230A-C] State  of  Mysore  v.  G.  B.  Purohit,  C.A.  No.  2281  of 1965, dated 25th January 1967 followed. (6)  The petitioners were not right in their contention that the  second proviso to r. (1) of the 1959-Rules was a  valid provision.   Both the directly recruited Mamlatdars as  well as  the promoted Mamlatdars form one class.  They  are  both known by the same designation.  They have the same scales of pay  and  discharge the same functions.  The Posts  held  by them are interchangeable.  There is nothing to show that the two groups are kept apart.  Both are merged together in  the same   class.   It  is  not  competent  to  the   Government thereafter   to  discriminate  between  directly   recruited Mamlatdars and promoted Mamlatdars in the matter of  further promotion to the posts of Deputy Collector.  That would  be violative  of Art. 16 of the Constitution.   Therefore,  the second  proviso to r. (1) of the 1959-Rules must be held  to be bad.’ [230D-G] Meryyn  Coutindo v. Collector of Customs.  Bombay  [1966]  3 S.C.R. and S. M. Pandit v. The State of Gujarat, A.I.R. 1972 S.C. 252, followed. (7)(a)  The State Government in tie absence  of  legislative rules,  has to make up its mind on the question  whether  to treat  the  cadre  of  Mamlatdars as  a  State  Cadre  or  a divisional  Cadre,,, and it is competent to the  State  Gov- ernment to take a decision in the exercise of its  executive power  under  Art.  162  of  the  Constitution.   The  State Government  accordingly decided, on 1st November 1956,  that while  recruitment to the posts of Mamlatdars should be  ,on all State basis" the cadre of Mamlatdars should be according to the divisions. [231D] B.   N.  Nagarajan v. State of Mysore’ [1966] 3  S.C.R.  682 and Sant Ram v. State    of  Rajasthan, [1968] 1 S.C.R.  11, followed. (b)  It  is  true  that  under  the  Bombay  Civil  services

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 24  

Classification   and  Recruitment  Rules  the   service   of Mamlatdars is regarded as Provincial Service 2 1 9 as  distinct  from Subordinate Service.  But that  does  dot necessarily mean that it cannot be organised into divisional cadres.  The only difference between Provincial Service  and Subordinate  Service reorganised in these Rules in the  mode of recruitment.  Clearly from 1st November, 1956, the  State Government  proconceeded  on  the basis that  the  cadre  of Mamlatdars  was  a divisional cadre and not a  State  Cadre. [231F-232B] (8)  But nothing turns upon this fact, because the procedure for promoting from the divisional cadre of Mamlatdars to the State  Cadre of Deputy Collectors %,as not  consistent  with Art. 16. [232C] (a)  The  1959-Rules provided that 50% of the  vacancies  in the  cadre  of Deputy Collector should be filled  by  direct recruitment.  But since the cadre of Deputy Collector was  a State  cadre, 50% of the vacancies, to be filled  by  direct recruitment were determined on the basis of vacancies in the cadre  for the State as a whole and not for  any  particular division of the State.  But in regard to promotion by  which the  other  50%  of the vacancies in  the  cadre  of  Deputy Collectors  was  to-be filled, the State  adopted  a  wholly different procedure.  Though a common seniority list of  all the  Mamlatdars in the State. irrespective of the  divisions to  which  they belonged, could be,  prepared  without,  any difficulty  on the basis of the 1951-Rules for the  allocate cl Mamlatdars Tahsildars and for the subsequent  appointees, on the principle, of continuous officiation up to 29th  July 1963  and thereafter according to the rule laid down in  the Resolution  of 29th July 1963, and a common  statewise  list could  ’  also  be  made of the  Mamlatdars  found  fit  for promotion  as Deputy Collectors, and promotion to the  cadre of  Deputy  Collectors, could be made on the basis  of  such Statewise  select list, the State Government did not  follow this  method. and instead, made promotions to, the cadre  of Deputy Collectors, which was a State cadre. on the basis  of divisional  select  lists.   Where  promotion  is  made   by selection  on  the  basis   of  merit-cum-seniority,   every Mamlatdar  should  have equal opportunity  With  others  for being  considered  for promotion. But the  actual  procedure followed limits his opportunity for promotion to avacancy in his  own  division.   This procedure amounts  to  denial  of equality  ofopportunity  to the Mamlatdars,  because  it  is wholly  unrelated  to the object and  purpose  of  promotion which  is to secure an efficient cadre of Deputy  Collectors and in fact negates it. [232D-234F] (b)  It  is true that confirmations in the cadre  of  Deputy Collectors  are  made on the basis of a  combined  seniority list of officiating Deputy Collectors but that does not cure the infirmity in the mode of promotion. [234F-G] (c)  The allotment of deemed dates of continuous officiation cannot help retrieve those who have had no opportunity to be promoted as officiating Deputy Collectors, not on account of want  of  higher seniority or better merit,  but  purely  on account of lack of adequate number of vacancies in the post, of  Deputy Collector arising in their division.  The  giving of deemed dates of continuous officiation no doubt  reflects the relative merits of the Mamlatdars in each division taken as  a  separate  unit, but it does not seek  to  adjust  the seniority  of the approved Mamlatdars in all  the  divisions taken  as  a  whole  on the basis  of  assessment  of  their relative  merits.   It does not,  therefore,  eliminate  the initial inequality of treatment. [234G-235C]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 24  

(d)  The decision in Rain Saran v. D.I.G. of Police,  [1964] 7  S.C.R.  228,  shows that if the  Cadre  of  promotion  is a.divisional cadre, there was divisionwise promotion on  the basis  of  divisional  select lists. but if it  is  a  State Cadre, promotion has to be on Statewise basis, so that every officer  in the State has equal opportunity of promotion  to the State Cadre. [237A-C] (e)  It is true that, a Mamlatdar cannot be promoted to  the cadre  of  Deputy Collector unless be officiates  as  Deputy Collector.  But it cannot for that reason be contended  that there  is an intermediate cadre of officiating  Deputy  Col- lectors  between  the cadre of Mamlatdars and the  cadre  of Deputy Collectors from which promotion is made to the  cadre of  Deputy  Collectors.   There is no  legislative  rule  or executive  order  providing  for the creation  of  any  such intermediate  cadre of officiating Deputy  Collectors.   The 1959-Rules provided that the appointment to 50% posts of the Deputy  Collectors should be made by promotion  of  suitable Mamlatdars,  that is, promotion should be from the cadre  of Mamlatdars to the cadre of Deputy Co lectors. [238B-E] 220 [The  :need for simplifying and streamlining  service  rules and   giving  there  statutory  shape  so  as   to   promote contentment  among  the services by extending  the  area  of equal  treatment  and imparting stability to  conditions  of service pointed out].

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 299 of 1969. Under  Article  32  of the Constitution  of  India  for  the enforcement of fundamental rights. M.   N.  H. Heble, Parvathi Heble, S. V. Tambwe K.  Rajendra Choudhry and Veena Devi Talwar, for the petitioners. S.   B. Wad and S. P. Nayar, for respondent No. 1. S.   C.  Agarwal,  R.  K.  Garg  and  V.  J.  Francis,   for respondents Nos. 46-54. The Judgment of the Court was delivered by BHAGWATI,   J.    The  short  question   that   arises   for determination  in  this  petition  under  Art.  32  of   the Constitution lies in a very narrow compass, but in order  to arrive at its proper determination it is necessary to  state the facts giving rise to the petition in some detail. Prior to the reorganisation of the States, which took  place on  1st  November, 1956 by virtue of the provisions  of  the States  Reorganisation  Act,  1956,  the  petitioners   were confirmed Tehsildars in the quondam State of Hyderabad which was  then a Part B State.  The Rules of recruitment  to  the posts of Tehsildar which prevailed in the erstwhile State of Hyderabad  provided that 1/3rd of the number of posts  shall be  filled  by  promotion from the  lower  ranks  while  the remaining 2/3rd shall be filled by direct recruitment on the basis  of  the  result  of  competitive  examination.    The petitioners  belonged  to the latter  category  of  directly recruited  Tehsildars.  The next higher cadre above that  of Tehsildars  was  the  cadre of  the  Deputy  Collectors  and recruitment  to, that cadre was governed by  a  notification issued  by the Rajpramukh of Hyde I rabid State on the  15th September,  1955.  This notification provided that  all  the vacancies of the cadre of Deputy Collectors shall be  filled ’only   by  promotion  by  selection’  from  the  cadre   of Tehsildars.   It was common ground between the parties  that both  the cadres of Tehsildars as well as Deputy  Collectors were State cadres

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 24  

On  31st  August,  1956 the Parliament  enacted  the  States Reorganisation   Act,  1956  and  that  Act  brought   about reorganisation of almost all the States in India with effect from  the  appointed day, namely, 1st November,  1956.   The fascinating  of sections in Part II of the Act  altered  the territories  of  the existing States of  Madras  and  Andhra Pradesh and brought into being various other new States.  We are. concerned here only with the formation of the new State of Bombay, and we will, therefore, confine our attention  to that.   Section  8 constituted a new State  of  Bombay  with territories  drawn  from various  existing  States,  namely, Bombay,  Hyderabad,  Madhya Pradesh, Saurashtra  and  Kutch. The  old State of Bombay ceased to exist and a new State  of Bombay  with  considerably enlarged  territories  came  into being- 2 21 Since  the new State of Bombay comprised territories  coming from  different existing States that was naturally bound  to give  rise to’ new and complex problems  of  administration, particularly   in the  context  of  increased   tempo   of developmental activities including land reform measures  and the  necessity  of integrating the services,  introducing  a unified  pattern of administration and unifying the laws  in the  different territories brought together to form the  new State  of  Bombay.   The Government  of  Bombay,  therefore, issued a Resolution, dated 1st November, 1956, dividing  the territories of the new State into six divisions and  placing each  division  in the charge of a Divisional  differ.   The territories  of  former  Saurashtra and  Kutch  States  were ground  together in Rajkot Division, the  territories  drawn from  the former Bombay State, save the, District  of-  East Khandesh,  in  Ahmedabad, Bombay and  Poona  Divisions,  the territories  drawn from ,the former State of Madhya  Pradesh in  Nagpur  Division’  and the territories  drawn  from  the former  Hyderabad State with the addition of  East  Khandesh District   in  Aurangabad  Division.   Since   the   service personnel  from  these  different  territories  came  to  be allocated  to the new State of Bombay,, they had all  to  be fitted  into form a compact and homogeneous service, and  it was, therefore, necessary to decide where and at what  place they  should  be  adjusted in the constitution  of  the  new service.   This  process necessarily  involved  equation  of posts, absorption of service personnel in the equated  posts and determination of inter se seniority.  The Government  of Bombay,  therefore, made The Allocated Government  Servants’ (Absorption,  Seniority,  Pay and Allowances)  Rules,  1957, which  We  shall hereafter, for, the  sake  of  convenience, refer to as the Rules of 1957.  The Preamble to the Rules of 1957 stated that they were made by the Governor of Bombay in exercise of powers conferred by Art. 309 of the Constitution and  with due regard to the proviso to sub-s. (7) of S.  115 of the States Reorganisation Act, 1956 and with the approval of  the  Government  of  India  obtained  thereunder   where necessary.   The  Rules  of 1957  provided  inter  alia  for absorption of all persons allotted for Service to the  State of- Bombay and the determination of their inter se seniority in the cadre of absorption.  Rule 3 dealt with the, case  of an allocated Government servant belonging to a local  cadre, that is, a cadre other than a State cadre in a former State, but.  this  rule  had no application to  Tehsildars  of  Ex- Hyderabad State because they belonged to-.a State cadre  and not  to a local cadre.  Rule 4 enacted a  general  provision that the appointing authority shall issue an order absorbing each  allocated Government servant, other than one  covered by r. 3, in an equivalent post after the equation of  ’posts

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 24  

was  made  by  the Government.   The  Government  of  Bombay thereafter,  by  a  Resolution  dated  21st  October,  1957, declared  inter  alia  that the post of  Mamlatdars  in  the former  State of Bombay shall be deemed to be equivalent  to the  posts of Tehsildars allocated from the former State  of Hyderabad.   The petitioners and other Tehsildars  allocated from  the  Ex-Hyderabad State were accordingly  absorbed  as confirmed Grade 11 Mamlatdars with effect from 1st November, 1956, and sense they were serving in one or the other of the districts  of  the ’Ex-Hyderabad State  which  were  grouped together   with   East  Khandesh  District   to   constitute Aurangabad 222 Division,  it  was directed that they should be  treated  as Grade 11 Mamlatdars in the Aurangabad division.,  Similarly, by  the same Government Resolution dated 21st October,  1957 the posts of Deputy Collector in the former State of  Bombay were  declared  to  be equivalent to  the  posts  of  Deputy Collector allocated from the former State, of Hyderabad. Prior to the reorganisation of the States different rules of recruitment  to the posts of Deputy Collector  prevailed  in the different regions which went to make up the  reorganised State  of  Bombay.  We have already referred  to  the  rules contained in the Notification of the Rajpramukh of Hyderabad dated 15th September, 1955.  Then there’ were rules  enacted by  the  Government Resolution dated 24th July,  1951  which prevailed  in the former State of Bombay.  There were  also’ similar  rules in the other States, namely, Madhya  Pradesh, Saurashtra’ and Kutch.  The allocated  Mamlatdars/Tehsildars coming from these different States undoubtedly carried their respective  conditions  of service with them under  s.  115, sub-s. (7) of the States Reorganisation Act, 1956, and those conditions  of service included the right to  be  considered for  promotion as Deputy Collector, but the different  rules of  recruitment which prevailed in the different regions  as such became wholly inapposite and incongruous and ceased  to be applicable in the new set up.  The Government of  Bombay, therefore,  felt that it was necessary to have new rules  of recruitment  to  the posts of  Deputy  Collector  applicable uniformly  throughout the territory   the reorganised  State and,  with  that end in view framed  recruitment  rules  and issued  them  as appendix to a Resolution dated  30th  July, 1959.   These  rules  we shall hereafter  for  the  sake  of convenience  refer as the rules of 30th July, 1959.  Rule  1 of  these  Rules is material and it may  be reproduced  as follows               "Appointment to the posts of Deputy  Collector               ,hall  be  made  either by  nomination  or  by               promotion of suitable Mamlatdars.               Provided  that  the ratio  of  appointment  by               nomination  and by promotion shall, as far  as               practicable be 50 : 50.               Provided  further  that  half  the   vacancies               reserved for appointment by promotion shall be               filled  by directly recruited  Mamlatdars  who               have  put in at least seven years  service  in               the  posts  including  the  period  spent   on               probation." It will be noticed that according to rules vacancies in  the posts  of  Deputy  Collector were to be  filled  from  three sources  : 50% by nomination on the basis of the  result  of competitive   examination,   25%   by   directly   recruited Mamlatdars  who  have put in at least  seven  years  service including the period spent on probation and the remaining 25 % by Mamlatdars promoted from the lower ranks in the Revenue

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 24  

Department.   The reservation of 25% of vacancies in  favour of  directly  recruited Mamlatdars was made  by  the  second proviso  to  rule 1, but in writ Petition No.  845  of  1967 filed  by one Kapor against the Commissioner  of  Aurangabad Division & Ors., a Division Bench of the Bombay High  Court, by its judgment , dated 23rd March, 1968, declared 2 23 that   proviso  void  as  being  violative  of   the   equal opportunity clause contained in Art. 16 of the Constitution. The petitioners in this petition disputed the correctness of this  view  taken by the High Court and contended  that  the provision  enacted  in the second proviso to rule  I  was  a valid  provision.  But of that a little later when  we  deal with the arguments of the parties.  It is, however, evident. that  if the second. proviso to rule 1 were invalid, 50%  of the vacancies in the posts of Deputy Collector would have to be filled by nomination and, 50% by promotion of  Mamlatdars irrespective   of  whether  they  were  directly   recruited Mamlatdars or Mamlatdars promoted from the lower ranks.   We may also at this stage refer to one other contention  raised on behalf of the petitioners in regard to the Rules of  30th July,  1959.   That contention was that the  Rules  of  30th July,  1959 did not apply to the allocated  Tehsildars  from Ex-Hyderabed  State  who  continued to be  governed  by  the recruitment and promotion’ rules of their, erstwhile  State. This contention was sought to be supported by reference to a letter   dated   18th  October,  1960   addressed   by   the Commissioner of Aurangabad Division to the first  petitioner in  which  the Commissioner stated that the  Rules  of  30th July,  1959  "are not applicable to Marathwada  officers  as they are governed by recruitment and promotion rules of  Ex- Hyderabad  State  which are not yet unified  by  Government. The respondents admitted that such a letter was addressed by the Commissioner to the first petitioner, but said that  was due to a bonafide error, and in any event it was not binding on  the State Government.  The respondents urged  that  the, Rules  of  30th July, 1959 were  unified  recruitment  rules applicable throughout the whole, of reorganization State  of Bombay  and the promotion of the allocated  Tehsildars  from Ex-Hyderabad  State  to the posts of  Deputy  Collector  was governed  by those Rules and not by the Ex-Hyderabad  rules. This  controversy  as  to  the  scope  and  extent  of   the applicability  of  the Rules of 30th July,  1959  need  not, however, detain us, as the same controversy was raised  also before  the  Bombay  High Court in  Kapoor’s  case  and  was decided in favour of the State Government, and review of the cogent reasons given by the Bombay High Court in support  of its decision the petitioners did not press their  contention and agreed to proceed on the footing that the Rules of  30th July,  1959  governed recruitment to the posts  of  Deputy Collector throughout the reorganised Bombay State. It  may  also  stated  that,  as  in  the  case  of   Deputy Collectors,   so  also  in  the  case  of  Mamlatdars,   the Government of Bombay made unified rules of recruitment by  a Resolution  date( 19th November, 1959. These Rules which  we shall for the sake of convenience refer as the Rules of 19th November, 1959 came into force with effect from 1st January, 1960.   Rule  1 of these rules is material and  it  provided that appointment to the posts of Mamlatdars shall be made by nomination  on the result of competitive examination  or  by promo tion  from amongst the members of subordinate  revenue services, provided that as nearly as may be one half of  the vacancies in the cadre of Mamlatdars ,hall be reserved  for direct recruits by nomination "except in the case of  Nagpur Division" where a special provision was made that this ratio

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 24  

would   not  apply  till  all  persons  recruited  as   Naib Tehsildars were either promoted as Tehsildars or rejected as not fit to be so promoted. 224 Now,  according to the respondents, the cadre of  Mamlatdars was  a  divisional  cadre  and not a  State  cadre  and  the reorganised   State  of  Bombay  being  divided   into   six divisions, there was a separate cadre of Mamlatdars for each division.  This position was, however, disputed on behalf of the  petitioners and their argument was that though  it  was true that Mamlatdars were allocated to different  divisions, that  was only for the sake of  administrative,  convenience and  it  did not have the effect of splitting up  the  State cadre  of Mamlatdars into divisional cadres.  The  cadre  of Mamlatdars always remained one and indivisible and it was  a State cadre.  Now, whatever be the correct position in  law, and  we shall examine. that presently, one thing is  certain that  the State Government proceeded on the basis  that  the cadre  of Mamlatdars was a divisional cadre.  The  procedure that the State Government followed for making appointment to the  posts  of  Deputy Collector by  promotion  of  suitable Mamlatdars/Tehsildars from and after 1st November, 1956  was that     for    each    division    a     select,list     of Mamlatdars/Tehsildars considered fit for promotion as Deputy Collector  was prepared by a revising committee  every  year and from the divisional select list, promotions were made as officiating  Deputy  Collector on a  divisional  basis,  and thereafter  confirmations in the cadre of Deputy  Collector, which was admittedly a State cadre "were made for the, State as  a whole after considering the claims of all  officiating Deputy  Collectors in the State as a  whole.   Thisprocedure does not appear to have the warrant of any legislatively  or administrative  orders  but there can be no doubt  from  the affidavit in reply filed on behalf of the State  Government, that  it was in fact followed for making promotions  to  the posts  of  Deputy  Collector.   On  7th  April,  1961,   the Government  issued a Resolution laying down the  "principles for  regulating preparation and revision of select  list  of Mamlatdars/  Tehsildars  fit  to  be  appointed  as   Deputy Collectors in the posts to be filled by promotion".  It  may be  recapitulated here that under the Rules of  30th  July, 1959  the  posts  to  be filled  by  promotion  of  suitable Mamlatdars/Tehsildars were 25% in case the second proviso to rule  I  were,  held  to be valid and 50%  in  case  it  was invalid.   The Government Resolution dated 7th  April,  1961 provided  that  a comradeship should,  in  July-August  each year,  review  the claims of all  Mamlatdars/Tehsildars  for promotion  to the posts of Deputy Collector and should  draw up  a  select  list  for each  division  of  those  who  are considered  by  the committee fit for promotion,  and  para- graphs  3 to 7 of this Government Resolution laid  down  the principles  governing  the preparation and revision  of  the divisional  select  lists.  The  promotions  as  officiating Deputy  Collectors were made divisible on the basis  of  the divisional  select lists and confirmations in the  cadre  of Deputy  Collector  were  made  according  to  the   combined seniority list of officiating Deputy Collectors.   Paragraph 17  of the affidavit in reply-filed on behalf of  the  State Government  set out the detailed procedure followed  by  the State Government in this behalf.  We shall have occasion  to refer  to  this  procedure in detail  when  we  examine  the respective  arguments  of  the  parties  and  we  need  not, therefore,  elaborate it at this stage Suffice it  to  point out  that it was in accordance with the procedure  that  the petitioners were

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 24  

2 2.5 promoted as officiating Deputy Collectors in the  Aurangabad Division  on  different  dates.   The  consequence  of  the, adoption  of this procedure, however, was that some  of  the allocated  Mamlatdars/Tehsildars,  in other  divisions,  who were  junior to the petitioners, became  officiating  Deputy Collectors   earlier   than   the   petitioners   and   were consequently entitled to be confirmed in the cadre of Deputy Collectors,   in   preference  to  the   petitioners.    The petitioners  actually gave in paragraph 38 of  the  petition examples of three allocated Mamlatdars from Ex-Bombay  State who  were  admittedly appointed Mamlatdars  later  than  the petitioners,  and  yet came to be  promoted  as  officiating Deputy  Collectors earlier than the petitioners.   This  was the  main  cause  of grievance of  the  petitioners  in  the petition. Before we conclude the narration of facts we must also refer to,  Government Resolution dated 29th July, 1963  passed  by the  Government of Maharashtra which superseded the rule  of seniority  contained  in an  earlier  Government  Resolution dated  21st November, 1941 and provided that "The  seniority of  promoted officers in the State Services and  this  would include   the   service  of  Deputy   Collectors"should   be determined according to the date of promotion, to  officiate continuously  in the case of those’ appointed by  promotion, irrespective  of  whether  the  appointments  are  made   in temporary   or  in  permanent  vacancies,  subject  to   the provisions of the following clauses : (i) (ii) The inter  se seniority  of  officers  promoted  from  the  select   lists prepared  in  consultation  with the  State  Public  Service Commission should be determined in accordance with the ranks in  the select list.". This was the rule which governed  the determination   of  seniority,  in  the  cadre   of   Deputy Collectors. Now,  various reliefs were claimed by the petitioner in  the present petition, but of these reliefs, the petitioners  did not  press those contained in prayers V, VI and IX  to  XII. The  other reliefs were pressed by the petitioners and  they may subsumed under the following three grounds               (A)   The       gradation       list        of               Mamlatdars/Tehsildars  allocated to the  State               of Bombay as oil 1st November, 1956 was liable               to   be  prepared  in,  accordance  with   the               principle of seniority laid down in Government               Resolution  dated 21st November 1941, and  the               Government Resolution dated 29th , 1963 had no               application  in  the  determination  of   such               seniority.               (B)   The Rules of 30th July, 1959 varied  the               conditions of service of the petitioners   and               other  allocated Tehsildars from  Ex-Hyderabad               State   to  their  disadvantage  without   the               previous approval of the Central Government as               required  under the proviso to s’ 115,  sub-s.               (7)  of the, States Reorganisation Act,  1956,               and were, therefore, null and void.  If,  con-               trary  to this submission, the Rules  of  30th               July, 1959 were valid, so also was the  second               proviso to               226               rule  1  of these Rules, and the  Bombay  High               Court  was  in  error in declaring  it  to  be               invalid in Kapoor’s case.               (C)   The  Government  Resolution  dated   7th               April, 1961, as also the procedure for  making

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 24  

             promotions  to the posts of  Deputy  Collector                             followed by the State Government were violative               of the equal opportunity, clause contained  in               Art.  16 of the Constitution.  The  promotions               to  the posts of Deputy Collector should  have               been made on the basis of Statewide  seniority               of  Mamlatdars/Tehsildars  by  selection  from               amongst  Mamlatdars/Tehsildars throughout  the               State as a whole. We  shall proceed to examine these grounds in the  order  in which we  have set them out, but before we do so  we  must refer to some ,objections of a preliminary nature raised  on behalf of the respondents. The  first  preliminary objection raised on  behalf  of  the respondents. was that the petitioners were guilty of  gross lashes  and  delay in filing the petition.   The  divisional cadres of ’Mamlatdars/Tehsildars were created as far back as 1st  November,  1956 by the Government  Resolution  of  that date, and the procedure for making promotion to the posts of Deputy  Collector on the basis of divisional  select  lists, which  was  a necessary consequence of the creation  of  the divisional  ,cadre  of Mamlatdars/Tehsildars,  had  been  in operation  for a long number of years, at any rate from  7th April,  1961"  and the Rules ,of 30th July, 1959  were  also given effect to since the date of their ,,enactment and  yet the  petitioner did not file the petition until  14th  July, 1969.  There was a delay of more than ten or twelve years in filing  the  petition  since the accrual  of  the  cause  of complaint,  and this delay, contended the  respondents,  was sufficient to disentitle the petitioners to any relief in a petition under Art, 32 of the Constitution.  We do not think this contention should prevail with us.  In the first place, it  must  be remembered that the rule which  says  that  the Court may not inquire into related and stale claims is not a rule  of  law, but a  rule of practice based  on  sound  and proper  exercise of discretion, and there is  no  inviolable rule   that  whenever  there  is  delay,  the   court   must necessarily  refuse  to entertain the petition.   Each  case must depend on its own facts.  The question, ,as pointed out by  Hidayatullah,  C.J., in Tilockchand Motichand v.  H.  B. Munishi(4)  "is  one of discretion or this Court  to  follow from ,case to case.  There is no lower limit aid there is no upper limit-.  It will all depend on what the breach of  the Fundamental  Right  and the remedy claimed are and  how  the delay  arose."  Here the petitioners were  informed  by  the Commissioner, Aurangabad Division, by his letter dated  18th October,  1960  land also by the Secretary  of  the  Revenue Department in January 1961 that the rules of recruitment  to the  posts of Deputy Collector in the reorganised  State  of Bombay  had not yet been unified, and that  the  petitioners continued (1)  [1969] 2 S S.C.R. 824. 2 2 7 to  be governed by the rules of Ex-Hyderabad State  and  the Rules.  of 30th July, 1959 had no application to them.   The petitioners. were, therefore, justified in proceeding on the assumption  that there were no unified rules of  recruitment to  the  posts of Deputy Collector and the  promotions  that were   being  made  by  the  State  Government   were   only provisional,  to  be  regularised  when  unified  rules   of recruitment  were  made.  It was only when the  petition  in Kapoor’s case was decided by the Bombay High Court that the petitioners  came to know that it was the case of the  State Government  in that petition and that case was  accepted  by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 24  

the Bombay High Court that the Rules of 30th July, 1959 were the  unified  rules of recruitment to the  posts  of  Deputy Collector  applicable throughout. the reorganised  State  of Bombay.  The petitioners thereafter did not lose any time in Ring the present petition.  Moreover, what is challenged  in the  petition  is the validity of the procedure  for  making promotions  to the posts of Deputy Collector-whether  it  is violative  of  the equal opportunity clause-and  since  this procedure,  is  not a thing of the past but is  still  being followed  by the State Government, it is but desirable  that its  constitutionality should be adjudged when the  question has,  come  before  the court at the  instance  ’of  parties properly  aggrieved  by it.  It may also be noted  that  the principle on which the Court proceeds in refusing relief  to the  petitioner  on  ground of lashes ordeals  is  that  the rights which have accrued to others by reasons of the  delay in filing the petition should not be allowed to be disturbed unless there is reasonable explanation for the delay.   This principle was stated in the following terms by Hidayatullah, C.J. in Tilokchand v. H. B. Munshi(1)               "The  party claiming Fundamental  Rights  must               move  the Court before other rights come  into               existence.   The action of courts cannot  harm               innocent  parties  if their rights  emerge  by               reason  of  delay on the part  of  the  person               moving the Court." Sikri,  J.,  (as  he  then  was),  also  restated  the  same principle in equally felicitous language when he said in’ S. N.  Bose  v.  Union of India(2) : "It  Would  be  unjust  to deprive the respondents of the rights which have, accrued to them.   Each  person ought to be entitled to  sit  back  and consider that his appointment and promotion effected a  long time ago would not be set aside after the lapse of a  number of  years."  Here  as admitted by the  State  Government  in paragraph  55  of the affidavit in  repeal  promotions  that have been made by the State Government area provisional  and the  position has not been crystallised to the prejudice  of the  petitioners.   No rights have,  therefore,  accrued  in favour  of  others  by reason of the  delay  in  filing  the petition.   The promotions being provisional, they have  not conferred any rights on hose promoted and they are by  their very  nature  liable to be set a : naught,  if  the  correct legal position, as finally determined, so reqiures.  We were also  told by the learned counsel for the  petitioners,  and that  was not controverted by the learned counsel  appearing on behalf of the (2)  [1970] 2 S.C.R. 697. (1) [1969] 2 S.C.R. 824. 228 State Government, that even if the petition were allowed and the reliefs claimed by the petitioners granted to them, that would not result in the reversion of any Deputy Collector or officiating    Deputy    Collector   to    the    post    of Mamlatdar/Tehsildar;  the  only effect would  be  merely  to disturb  their  inter  se seniority  as  officiating  Deputy Collectors  or  as Deputy Collectors.  Moreover  it  may  be noticed  that the claim for enforcement of  the  fundamental right  of  equal  opportunity  under Art.  16  is  itself  a fundamental right guaranteed under.  Art. 32 and this  Court which  has been assigned the role of a sentinel on the  quay dive for protection of the fundamental rights cannot  easily allow itself to be persuaded to refuse relief solely on  the jejune ground of laches, delay or the like. The  respondents then contended that though the  petitioners were  not parties to the petition in Kapoor’s case, some  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 24  

the  respondents  in that petition were  directly  recruited Tehsildars like the petitioners and ,the dispute of directly recruited  Tehsildars as a class was agitated in  that  case and  decided and consequently if the judgment of the  Bombay High  Court  in regard to such dispute  was  incorrect,  the petitioners  could  always  apply  for  a  review  of   that impunities; as did the parties in Shivdeo Singh v. State  of Punjab(1).   The  petitioners  had  this  alternative  legal remedy  of review available to them and there was no  reason why, instead of pursuing that remedy, the petitioners should have  filed  the  present  petition  under  Art.  32.   This contention  is also without force, and for three  very  good reasons.  In the first place, it is difficult to see how the petitioners could have applied for review of the judgment of the Bombay High Court in Kapoors case.  The petitioners were not  persons  directly  and  immediately  affected  by   the judgment  and it could not be said that they were  necessary parties  to the petition who should have been  heard  before the  judgment was given, as was the case in Shivdeo Singh v. State  of  Punjab(1).  The petitioners  had,  therefore,  no locus to apply for review of that judgment.  Secondly,.  the subject matter of the present petition is, barring only  one question  which  is common, namely, the question as  to  the validity  of  the second proviso to rule 1 of the  Rules  of 30th July, 1959, wholly different from that of the  petition in  Kapoor’s case, and asking for review of the judgment  in Kapoor’s  case  would  be no remedy at all  so  far  as  the reliefs  claimed  in  the present  petition  are  concerned. Lastly,  the remedy by way of review of a judgment given  in another  case in which the petitioners are not  parties  can hardly  be said to be an adequate alternative  legal  remedy ,available to the petitioners. The  third  preliminary objection raised on  behalf  of  the respondents was that it was ’not competent to the Court,  to pronounce  on  the  validity of  the  procedure  for  making promotions to the posts of Deputy Collector in  the,.absence of  other Mamlatdars/Tehsildars who might be  interested  in supporting the procedure, This objection is equally  futile. Those  who are already promoted according to,  the  impugned procedure  and  whose position’  vis-a-vis  the  petitioners would  be likely to be affected by the invalidation of  such procedure are A.I.R 963 S.C. 1909. 229 before  the  Court as parties to the petition.   Only  those Mamlatdars/ Tehsildars are not made parties to the  petition who are not promoted as officiating Deputy Collectors or who are,  even  on the basis of the promotions  made  under  the impugned  procedure, junior to the petitioners.   But  these Mamlatdars/Tehsildars  are  not  necessary  parties  to  the petition, as they would not be adversely affected  vis-a-vis the petitioners even if the impugned procedure were held  to be invalid.  All those who are necessary parties are  before the  Court and there is, therefore, no. impediment-  in  the way  of the Court proceeding to decide the questions  raised for its determination. Having  rejected these preliminary objections, we shall  now turn to examine the grounds of challenge urged on behalf  of the petitioners. Re.  Ground A : The argument under this ground of  challenge was  that the seniority of the petitioners  vis-a-vis  other Mamlatdars/ Tehsildars in the recognised State of Bombay was liable to be determined according to the principle laid down in  the Government Resolution dated 21st November, 1941  and the  Government  Resolution  dated 29th July,  1963  had  no

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 24  

application.   This  argument  :is a  little  ,difficult  to comprehend.  We fail to see how either of the two Government Resolutions  dated 21st November, 1941 and 29th  July,  1963 comes  into the picture in determining the seniority of  the petitioners qua other allocated Mamlatdars/Tehsildars as  on 1st   November,  1956.   The  inter  se  seniority  of   the Tehsildars  and Mamlatdars allocated from the former  States of  Hyderabad, Madhya Pradesh, Bombay, Saurashtra and  Kutch to  the  reorganised States of Bombay as on  1st  November.. 1956  would be governed by rules 7, 8 and 9 of the Rules  of 1957,  and  neither the Government  ’Resolution  dated  21st November,  1941  nor the Government  Resolution  dated  29th July,  1963  would have any application.  Prayer II  of  the petition must accordingly be rejected. Re  :  Ground  B  :  The  petitioners  and  other  allocated Tehsildars   from   Ex-Hyderabad  State   had,   under   the Notification  of the Rajpramukh dated 15th September,  1955, all :he vacancies in the post of Deputy Collector in the Ex- Hyderabad  State available to them for promotion, but  under the  Rules of 30th July, 1959, 50% of the vacancies were  to be  filled by direct recruitment and only the remaining  50% were  available  for promotion and that  too  on  divisional basis.   This  according  to  the  petitioners,  constituted variation  to  their prejudice in the  conditions  of  sence applicable  to them immediately prior to the  reorganisation of  the States and since such variation was effected by  the Rules  of  30th July, 1959 without  obtaining  the  previous approval  of the Central Government as require ,  under  the proviso to s. 1 15, sub-s. (7) of the States  Reorganisation Act, 1956, the Rules of 30th July, 1959 were invalid.   This contention  of the petitioners we find difficult to  accept. All  that happened Is a result of making promotions  to  the posts of Deputy Collectors divisionwise and limiting such 230 promotions  to 50% of the total number of vacancies  in  the posts  of  Deputy- Collector was to reduce. the  chances  of promotion  available  to the petitioners.  It  is  now  well settled by the decision of the  Court in State of Mysore  v. G.  B  Purohit(1) that though a right to be  considered  for promotion is a condition of service, mere chances of  promo- tion  are  not.   A rule which  merely  affects  chances  of promotion  cannot  be  regarded as varying  a  condition  of service.   In Purohit’s case,(1) the districtwise  seniority of sanitary inspectors was changed to Statewise  seniority,. and as a result of this change the respondents went down  in seniority  and  became  very junior.  This,  it  was  urged, affected  their  chances of promotion which  were  protected under  the proviso to S. 115, sub-s. (7).   This  contention was negatived and Wanchoo, J., (as he then was), speaking on behalf  of this Court observed : "’It is said on  behalf  of the  respondents that as their chances of  promotion  have been affected their conditions of service have been  changed to  their  disadvantage.  We see no force in  this  argument because chances of promotion are not conditions of service". It is, therefore, clear that neither the Rules of 30th July, 1959,  nor the procedure for making promotions to the  posts of  Deputy Collector divisionwise varies the  conditions  of service  of  the  petitioners to  their  disadvantage.   The proviso to S. 1 1 5, sub-s. (7) is accordingly not attracted and  the  Rules  of 30th July, 1959 cannot  be  assailed  as invalid on ground of non-compliance with that proviso. So far as the question of validity of the second proviso  to rule  1 of the Rules of 36th July, 1959 is concerned,  there can  be  no doubt that the, Bombay High Court was  right  in declaring it to be invalid.. It can hardly be disputed  that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 24  

both  the  directly  recruited Mamlatdars  as  well  as  the promote  Mamlatdars form one class.  They are both known  by the  same designation.  They have same scales of pay.   They discharge  the same functions.  The posts held by  them  are interchangeable.   There  is nothing to’ show that  the  two groups are kept apart.  Both are merged together in the same class.  It is not competent to the Government thereafter  to discriminate  between  directly  recruited  Mamlatdars   and promotee  Mamlatdars in the matter of further  promotion  to the  posts of Deputy Collector.  That would be violative  of Art. 16 of the Constitution.  This is abundantly clear  from the  decisions of this Court in Meryn Coutindo v.  Collector of  Customs,  Bombay(2)  and S. M. Pandit v.  The  State  of Gujarat(3).  In fact S. M. Pandit’s case (3) is directly  in Districts  of the present case are almost  indistinguishable from S. M. Pandit’s case (3 ) . The second proviso to rule 1 of the Rules of 30th July, 1959 must consequently be held to be  bad  as  being in conflict with Art.  16  of  the  Cons- titution. Re : Ground C : The first question that would logically seem to  arise  under the ground of challenge is whether  in  the reorganised  State of Bombay the cadre of Mamlatdars  was  a State  cadre or a divisional cadre.  There is no doubt  that in the former State of Hyderabad the cadre of Mamlatdars was a State cadre.  What was the nature of the (1)  C.A. No. 2281 of 1965, decided on 25th January, 1957. (2) [1956] 3 S.C.R. 600. (3) A.I.R. 1972 S.C. 252. 231 231 cadre  of  Mamlatdars in the former State of  Bombay  was  a matter of dispute between the parties.  The petitioners said that  it was a State cadre, while the  respondents  asserted that  it  was a divisional cadre.  It is  not’  possible  to resolve  this  controversy  on affidavits  as  it  raised  a disputed  question of fact, and we must, therefore,  without finally  deciding the question proceed on the basis that  in the  former  State of Bombay the cadre of Mamlatdars  was  a divisional  cadre as alleged by the  respondents.   Nothing, however, turns upon this fact except to indicate that if the cadre  of Mamlatdars in the recognised State of  Bombay  was constituted  into a divisional cadre, it was  not  something radically  new;  it was in line with what prevailed  in  the former state of Bombay.  Now let us examine what happened on the   reorganisation   of   the   States.    The   allocated Mamlatdars/Tehsildars  coming  from different  regions  were absorbed in the equated posts of Mamlatdars and the question arose  as  to  how  they should be  integrated  in  the  new service.  Should they be formed into a State cadre as in Ex- Hyderabad  State or into a divisional cadre as in  Ex-Bombay State ? The State Government had to make up its mind on this question  and, in the absence of legislative rules,  it  was competent to the State Government to take a decision in  the exercise  of  its  executive power under  Art.  162  of  the Constitution, vide B. N. Nagarajan v. State of Mysore(1) and Sant  Ram v. State of Rajasthan (2).  The  State  Government accordingly  decided  by  Government  Resolution  dated  1st November,  1956  that  while recruitment  to  the  posts  of Mamlatdars  should  be "on all State basis",  the  cadre  of Mamlatdars  should  be according to the divisions.   It  was contended on behalf of the petitioners that the constitution of  Mamlatdars  into divisional cadres was contrary  to  the Bombay  Civil Services Classification and Recruitment  Rules which  were statutory rules made by the Governor  under  s. 241 of the Government of India Act, 1935. These Rules,  said

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 24  

the  petitioners, classified the service of Mamlatdars as  a Provincial  Service  and  that  showed  that  the  cadre  of Mamlatdars was a Provincial or State cadre.  Now it is  true that  under  the Bombay Civil  Services  Classification  and Recruitment Rules the service of Mamlatdars is regarded as a Provincial   Service  as  distinguished   from   Subordinate Service,  but that does not necessarily mean that it  cannot be  organised into divisional cadres.  Ile  only  difference between   Provincial   service   and   Subordinate   service recognised  in these Rules is that whereas "appointments  to Provincial  services-shall  be made by Government or  by  an authority   empowered   by  Government  in   this   behalf’, "recruitment  to Subordinate Service shall be made by  Heads of  Departments  and those Heads of Offices to  whom  powers have been delegated subject to the provisions of these rules and  under  the general control of  Government".   There  is nothing in the Rules which system that a Provincial  service may not consist of divisional cadres.  The, Organisation  of Mamlatdars into divisional cadres cannot, therefore, be said to  be  in  conflict with these Rules and  on  that  account invalid.  in  fact we find legislative  recognition  of  the constitution of divisional cadres of Mamlatdars in the Rules of 19th November, 1959 which are admittedly statutory  rules made under the proviso to Art. 309 of the Constitution.  The proviso to rule 1 proceeds on the basis that the cadre (1)  [1966] 3 S.C.R. 682. (2) [1968] 1 S.C.R. 11.                             232 of Mamlatdars is a divisional cadre and in reference to each division.  cadre,  goes on to provide that one half  of  the vacancies  shall  be  filed by nomination and  one  half  by promotion,  except  in case of divisional  cadre  of  Nagpur division  where this provision would not apply  until  after all persons recruited as Naib Tehsildars are either promoted as  Mamlatdars  or rejected as not fit to  be  so  promoted. There  can,  therefore,  be no doubt  that  right  from  1st November,  1956  the cadre of Mamlatdars  was  a  divisional cadre and not a State cadre.  It is equally  clear from  the Government  Resolution dated 1st November, 1956 as  well  as the  affidavits  that  the cadre of Deputy  Columbus  was  a Stirling  cadre.   The  question is  whether  the  procedure followed  by the State Government for marking promotions  to the  State  cadre of Deputy Collectors from  the  divisional cadres  of  Mamlatdars was consistent with Art.  16  of  the Constitution.   Did  it ensure equality of  opportunity  for promotion   to   Mamlatdars  belonging  to   the   different divisional cadres? While examining this question it is necessary to compare the procedure  followed in regard to direct recruitment  to  the cadre of Deputy Collectors.  As we have already pointed  out above, the Rules of 30th July, 1959 provided that 50% of the vacancies in the cadre of Deputy Collectors shall be  filled by Direct recruitment.  Since the cadre of Deputy Collectors was  a  State cadre, 50% of the vacancies to  be  filled  by direct recruitment were determined on the basis of vacancies in  the  cadre  for the State as a whole  and  not  for  any particular  division of the State.  The  direct  recruitment was  made  on a Statewide basis without any attempt  to  see that  there was divisionwise representation.  But in  regard to promotion by which the other 50% of the vacancies in  the cadre  of  Deputy Collectors were to be  filled,  the  State Government  adopted a wholly different procedure.  Though  a common  seniority list ,of all the mamlatdars in the  State, irrespective of the divisions to which they belonged,  could be prepared without any difficulty on the basis of the Rules

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 24  

of 1957 for the allocated Mamlatdars/Tehsildars and for  the ,subsequent  appointees,  on the  principle of  continuous officiation upto 29th July, 1063 and thereafter according to the rule laid down in Government Resolution dated 29th July, 1963  and a common Statewide select list could also be  made of  Mamlatdars found fit for promotion as Deputy  Collectors and  promotion  to the cadre of Deputy Collectors  could  be made  on the basis of such Statewide select list, the  State Government did not choose to follow this method and  instead made promotions to the cadre of Deputy Collectors which  was a  State cadre on the basis of division select  lists.   The procedure  followed  by-the  State  Government  for   making promotions  was as follows : The Review  Committee  prepared every  year for each division a separate  divisional  select list of those Mamlatdars who were found fit for promotion as Deputy  Collectors.   Where Mamlatdars were brought  on  the divisional  select list at the same time, their  names  were ordinarily  arranged  according to their  seniority  in  the divisional  cadre but in case of Mamlatdar  ,of  outstanding merit, a higher rank might be given to win in the divisional select  list than that warranted by his seniority.   Subject to  this  provision,  the  seniority  of  Mamlatdarsin   the Divisional  select list was determined by the date of  their entry in the list.  When a 233 vacancy arose in the post of Deputy Collector in a  division and  it  was likely to last for three months  or  more,  the Mamlatdar  whose name was highest in the  Divisional  select list  and who was not already officiating, ’was promoted  as officiating Deputy Collector in the vacant post ’De name  of such  Mamlatdar, though promoted as officiating Deputy  Col- lector,  however, continued in the, divisional  select  list until he was confirmed in the cadre of Deputy Collectors  or retired  from service whichever happened earlier.  Now,  the ranking  in  the  divisional  select  list  did  not  remain constant.   There wag periodical review of the work of the officiating  Deputy  Collectors  and  on  such  review,  the ranking in the divisional select list was adjusted so as  to reflect  the  assessment  of  the  relative  merits  of  the officiating  Deputy  Collectors e.g. an  officiating  Deputy Collector who had a better record of service might be placed higher  than another with less meritorious record and so  on and  so forth in descending order of merit.  The  promotions as  officiating  Deputy Collector were thus  made  for  each division  separately, on the basis of its divisional  select list in which the ranking kept on changing periodically as a result  of review and assessment.  Then for the  purpose  or confirmation in the, cadre of Deputy Collectors, a  combined seniority  list  of officiating Deputy Collectors  from  all divisions  was prepared. procedure followed for the  purpose of  preparing combined seniority list was as follows in  the first  place "deemed"’ dates of continuous officiation  were given  to  the  officiating  Deputy  Collectors  from   each division with a view to ensuring that their inter se ranking in  the divisional select list was not affected by the  fact that an officer lower in rank in the divisional select  list might have been officiating as Deputy Collector for a longer period  than  another  in higher rank.   This  was  done  by providing  that-the officer who was highest in the  rank  in the  divisional  select  list should be given  the  date  of continuous  officiation of the officer who had  the  longest period  of officiation as Deputy Collector and  the  officer next  to him in rank should be given the date of  continuous officiation  of the officer who had officiated next  longest as  Deputy Collector and so on till the dates of  continuous

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 24  

officiation  of all officers were adjusted so as to  reflect their  inter  se seniority in the  divisional  select  list. Thus, if A, B and C were officiating Deputy Collectors in  a division  having 1st January, 1960, 1st July, 1960  and  1st January,  1961  respectively as their  dates  of  continuous officiation and in the divisional select list their  ranking was  first  C, second B and last A, their  deemed  dates  of continuous officiation would be 1st January, 1960 for C, 1st July,  1960 for B and 1st January, 1961 for A. Then  on  the basis of the deemed dates of continuous officiation given to the  officiating  Deputy  Collectors  in  each  division,  a combined  State-wise  seniority list of  officiating  Deputy Collectors  was prepared and confirmations  in the cadre  of Deputy Collectors were made in accordance with the seniority in  such combined State-wise seniority list.  This  was  the procedure  followed  by the State Government and it  hag  to meet the challenge of Art. 16 of the Constitution. Now, it is clear that this procedure suffers from a, serious infirmity  in that it provides for promotions to  the  State cadre  of  Deputy  Collectors to-be made  on  the  basis  of divisional select lists.  That clearly amounts to denial  of equality of opportunity to Mamlatdars in the State 234 in   the  matter  of  promotion  to  the  cadre  of   Deputy Collectors.   If a mamlatdar aspires to be promoted  to  the cadre of Deputy Collectors which is the next higher cadre of promotion   for  him,  he  has  to  be  promoted  first   as officiating  Deputy Collector.  It is only after he is  pro- moted  as  officiating Deputy Collector that he  can  become eligible to be confirmed in the cadre of Deputy  Collectors. But,   in  order  to  be  promoted  as  officiating   Deputy Collector, he has to wait until a vacancy occurs in the post of  Deputy Collector in his division.  Even if he is  senior to  a  Mamlatdar in-another division and more  suitable,  he cannot  be promoted to officiate in a vacancy which  arises, in  the  other division.  His opportunity for  promotion  is limited  to a vacancy in his own division.  The  consequence is that if a vacancy in the post of Deputy Collector  arises earlier  in one division, a Mamlatdar in the select list  of that  division,  would get promoted  as  officiating  Deputy Collector  earlier  than a Mamlatdar  ’in  another  division where a vacancy in the post of Deputy Collector arises later and, subject to the operation of the rule of deemed dates of continuous  officiation,  that would mean  that  the  former would  gain entry in the cadre of )Deputy Collector  earlier than  the latter, even though the former may be  junior  and less  suitable than the latter.  The entry in the  cadre  of Deputy  Collectors  is  thus  made  to  depend  not  on  the assessment  of the relative merits of a Mamlatdar vis a  vis the  other  Mamlatdars in the State, but on  the  fortuitous circumstances  as  to when a vacancy in the post  of  Deputy Collector  arises  in the division to  which  the  Mamlatdar belongs.  This is clearly violative of the equal opportunity clause  because  it is wholly unrelated to  the  object  and purpose  of promotion which is to secure an efficient  cadre of  Deputy  Collectors and in fact negates it.  It  must  be remembered  that the cadre of Deputy Collectors is  a  State cadre and for promotion to such State cadre every  Mamlatdar must  have  equal  opportunity  to  be  considered.    Where promotion  is made by selection on the basis of  merit-cum- seniority,  every  Mamlatdar  should be able  to  enter  the lists;  he  should have equal opportunity  with  others  for being  considered for promotion.  There must be  one  common door  for entry into the cadre of Deputy Collectors  through which  every Mamlatdar should be equally entitled to  enter,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 24  

’provided he is selected on the application of the principle of merit-cum-seniority.  There cannot be six doors of entry, one  door available exclusively for the Mamlatdars  of  each division.  That is bound to create inequality of opportunity in  the matter of promotion.  It is true that  confirmations in  the cadre of Deputy Collectors are made on the basis  of combined  seniority list of officiating  Deputy  Collectors, but  that  does  not  cure the  infirmity  in  the  mode  of promotion.   The  allotment of deemed  dates  of  continuous officiation  cannot  help  retrive those  who  have  had  no opportunity to be promoted as officiating Deputy Collectors, not on account of want of higher seniority or better  merit, but  purely  on  account  of  lack  of  adequate  number  of vacancies  in the post of Deputy Collector arising in  their division.  Moreover, since the Officiating Deputy Collectors are  still substantively Mamlatdars and it is in  virtue  of their being Mamlatdars that they are eligible to be promoted to the cadre of Deputy Collectors by confirmation, the  com- bined seniority list of officiating Deputy Collectors is  in truth and 235 reality  nothing  but a combined select list  of  Mamlatdars prepared  by unalgamating the divisional select lists.   The amalgamation of, the livisional select lists is not made  on a  comparative  assessment  of the  elative  Merits  of  the Mamlatdars in the divisional Select lists   as to produce, a combined seniority list based on merit-cum-seniority, but it proceeds  on  the  basis  of  deemed  dates  of   continuous officiation  is  Deputy Collectors given  to  Mamlatdars  in their  respective  divisional select lists.  The  giving  of deemed dates of continuous officiation no doubt reflects the relative merits of the Mamlatdars in each,division taken  as a  separate  unit,  but  it does  not  seek  to  adjust  the seniority  of the approved Mamlatdars in all  the  divisions taken  as  a  whole  on the basis  of  assessment  of  their relative  merits.   It does not,  therefore,  eliminate  the inequality  of treatment which inheres at the initial  stage of promotion as officiating Deputy Collectors.  The, vice of inequality of opportunity continues to inhibit promotions to the  Cadre of Deputy Collectors.  The procedure followed  by the  State Government in making promotions must,  therefore, be held to be ,violative of Art. 16 of the Constitution. The  respondents,  however,  relied  very  heavily  ’on  the decision  of  this Court in Ram Saran  v.  Deputy  Inspector General of police(1) and contended that this decision  gives approval  to  the  mode of promotion adopted  by  the  State Government  in the present case.  We do not think so.   Read superficially  it might appear that this  decision  supports the  contention of the respondents, but if we scrutinise  It closely,  it  would be apparent that not only  it  does  not render  any assistance to the respondents but actually  goes against them.  To understand the true ratio of this decision it  is  necessary to notice the facts in some  detail.   The police force in the State of Rajasthan was constituted under Police Act, 1861, and under s. 2 of the Act it was deemed to be  one police force for the whole state under  the  control and  supervision of the- inspector General of  Police.   The entire   area   of  the  State   was,   for   administrative convenience, divided into four ranges each under the  charge of a Deputy Inspector General of Police Each range comprised various  district  organisations  under  Superintendents  of Police.  The initial recruitment to the police force was  in the rank of constable and that Was done within the  district by  the Superintendent of Police.  The cadre  of  constables was  a  district  cadre’ The promotion  from  the  cadre  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 24  

constables  to the next higher cadre of head constables  was made within the district by the Superintendent of Police  on the   basis  of  district  wise  select  list  of   approved constables.   The  cadre  of  Head  Constables  was  also  a district  cadre.   The further promotion from the  cadre  of Head  Constables  to the cadre of Sub--Inspectors  was  made within the range by the Deputy, Inspector General of  Police and  for this purpose all the Head Constables in  the  range were  considered as one group for promotion to the  rank  of Sub-Inspectors  and  promotion  was made  on  the  basis  of rangewise select list of approved Head Constables.  Whenever a vacancy In the post of Sub-Inspector of Police arose in  a range, the Deputy Inspector General of Police of that  range would  make  promotion  from the select list  of  his  range according to seniority and conversely if reversion were (1)  [1964] 7 S.C.R. 228.                             236 to take place, the junior most Head Constable officiating as Sub-Inspector in the range would revert.  The cadre of  Sub- Inspectors  wag thus clearly a range cadre.  So far  as  the next  higher  cadre of Inspectors is concerned, that  was  a State  cadre  and promotion to that cadre was  made  by  the Inspector General of Police for the State as a whole on  the basis  of Statewise select list of approved  Sub-Inspectors. Now  what happened in this case was that the petitioner  who was  promoted to the rank of Sub-Inspector from the rank  of Head  Constable was reverted when a permanent  Sub-Inspector returned  to the range, as he was the junior  most  approved Head  Constable  officiating as.  Sub-," Inspector  in  that range, though in other ranges there were many approved  Head Constables  who  were junior to him and  yet  continued  to, Officiate as Sub-Inspectors.  The petitioner thereupon filed a petition under Art. 32 of the Constitution challenging the rangewise  system  of  promotion  from  the  rank  of   Head Constables  to the tank of Sub Inspectors inter alia on  the ground  that the whole police force being one, the  practice of  promotion  of  Head  Constables  to  officiate  as  Sub- Inspectors  rangewise  amounted  to denial  of  equality  of opportunity  under  Arts.  14 and 16  of  the  Constitution. While  dealing  with  this ground  of  challenge  the  Court pointed  out  that  at  the level  of  Constables  and  Head Constables  local knowledge was conducive to  administrative efficiency  and that was the reason why recruitment of  Con- stables  and  their  promotion as  Head  Constables  was  on districtwise  basis and even for the post  of  Sub-Inpector, local knowledge was regarded as useful, and therefore, while widening  the area, selections to the post of  Sub-Inspector were  confined within the range.  In regard to the  post  of Inspector, however, local knowledge was not insisted upon as the work of Inspector is mostly of a supervisory nature  and hence  promotion,to  the rank of Inspector was  provided  on Statewide basis.  The Court then proceeded to observe :  "If the  State     evolved  the  three  tier  system  of   giving promotion  from  constables to  head-constables  from  head- constables  to  Sub-Inspectors and  from  Sub-Inspectors  to Inspectors, which is done in the interest of  administrative efficiency of the police force, it cannot in our opinion  be said that such a system should be struck down on the  ground that the police force being deemed one for the whole  State, promotion throughout from constable upwards should be on the basis  of  the  whole  State.   Apart  from   administrative difficulties which may arise if all promotion of members  in the  police  force  is  concentrated in  the  hands  of  the Inspector General of Police which is what the petitioner  is contending for, it seems to us that there is a good deal  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 24  

force  in  the contention of the State that the  three  tier system works for the efficiency of the police force of these ranks and is designed with that object".  On this  reasoning the  Court  negatived the constitutional  challenge  to  the validity of the system of promotion. It  will be seen from this analysis of the reasoning of  the decision in Ram Saran’s case(1) that far from negativing the contention  of the petitioners, it goes a long  way  towards supporting  it.   In Ram Saran’s case(1) the cadre  of  Sub- Inspectors was a range cadre and promotion to that cadre  in each range was made on the basis of select (1)[1964] 7 S.C.R. 228. 237 list of approved Head Constables from that particular range. This  mode  of  promotion which  confined  promotional  Head Constables to Sub-Inspectors within the range was upheld  by this  Court because it was calculated to make available  the advantage  of  local knowledge in a post  where  such  local knowledge  would  be  useful in promoting  the  interest  of administrative  efficiency  of the police  force.   But  the basic  feature underlying this mode, of promotion  was,  and that is vital to the understanding of the true ratio of this decision, that in respect of promotion to the range cadre of Sub-Inspectors  all  the Head Constables in the  range  were eligible  for being considered and promotion to  such  range cadre  was  made on the basis of  rangewise  selection  list prepared  by taking into account the relative merits of  all the  Head Constables in the range.  Every Head Constable  in the range had, therefore, equal opportunity of promotion  to the  range  cadre of Sub-Inspectors.  Here  in  the  present case,  however, as we have. already pointed out  above,  the procedure  adopted  by  the State  Government  provided  for promotion  to the State cadre of Deputy Collectors, not  ,on the  basis  of  States  select list, but  on  the  basis  of divisions select lists of Mamlatdars.  This is a very  vital point  on  which the mode of promotion in the  present  case differed from that in Ram Saran’s case(1).  If the cadre  of Deputy  Collectors had been a divisional cadre, there  would have  been no objection in providing that the  promotion  to that cadre shall be divisionwise on the basis of  divisional select lists.  Then the analogy in Ram Saran’s case(1) would have been complete.  But here the cadre of Deputy Collectors was admittedly a State cadre and not a divisional cadre  and divisionwise  promotion to  ,such cadre on  the  basis  of divisional  select lists could not, therefore, be  justified on the ratio of the decision in Ram Saran’s case(1).  It may be  noticed  that  in Rain Saran’s  case(1),  in  regard  to promotion  to the State cadre of Inspectors,  the  procedure followed  was  to have a Statewise select list  of  approved Sub-Inspectors from all over the State and to make promotion to  the  State  cadre of Inspectors on  the  basis  of  such Statewise select list.  The promotion to the State cadre  of Inspectors  was not made rangewise on the basis of  separate select  lists of Sub-Inspectors of each range.  If that  had been  done,  and upheld by this Court. the argument  of  the respondents  would have been almost unassailable.   But  the promotion  to  the  State  cadre  of  Inspectors  was  on  a Statewise  basis.  The ratio of the decision in Ram  Saran’s case()  does  not, therefore, support  the  contention  that promotion  to  a  State cadre can be made on  the  basis  of divisional select lists.  On the contrary. it suggests  that if  the cadre is a divisional cadre, there can be  division- wise promotion on the basis of divisional select lists,  but if it is a State cadre, promotion must be on Statewide basis so that every officer in the State has equal opportunity  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 24  

promotion to the State cadre. Ram Saran’s case(), therefore, impliedly supports the view which we have taken on a  priori reasoning.  The respondents faintly attempted to argue  that in  the  present  case there was an  intermediate  cadre  of officiating   Deputy   Collectors  between  the   cadre   of Mamlatdars and the cadre of Deputy Collectors and  promotion from the cadre of Mamlatdars lay to the cadre of officiating Deputy  Collectors and it was from the cadre of  officiating Deputy Collectors that one could obtain (1)  [1964] 79.C.R. 229, 2 38’ promotion  to the cadre of Deputy Collectors.  The cadre  of officiating  Deputy Collectors was a divisional  cadre,  and therefore,,  promotion to it, was divisionwise on the  basis of  divisional  select  lists, while  the  cadre  of  Deputy Collectors  was a state cadre and hence promotion to it  was statewide on the basis of the combined seniority list of all officiating Deputy Collectors in the.  State.  This was ill accord with the pattern of promotion in Ram Saran Is case(1) and   was,  therefore,  valid.   This  contention   of   the respondents  is without force.  The  premise on which it  is founded  is incorrect.  It is wholly contradicted the  Rules of  30th  July, 1959 which are  admittedly  statutory  rules These Rules provide that appointment to 50% of the posts  of Deputy  Collectors shall be made by "promotion  of  suitable Mamlatdars"  The promotion that is spoken of in these  Rules is  promotion from the cadre- of Mamlatdars to the cadre  of Deputy  collectors.   These Rules  completely  negative  the existence  of any intermediate cadre of  officiating  Deputy Collectors.   It  is difficult to see how in  the  face’  of these  Rules  which have statutory affect, it can  ever  be, contended  that promotion to the cadre of Deputy  Collectors was not from the cadre of Mamlatdars but from the  so-called cadre  of  officiating Deputy Collectors.  Of course  it  is true  that  a Mamlatdar cannot be promoted to the  cadre  of Deputy  Collectors unless he has first officiated as  Deputy Collector, but when he is promoted, it is from the cadre  of Mamlatdars  and not from any supposed cadre  of  officiating Deputy Collectors.  In fact there is any legislative rule or executive  order  providing  for the  creation  of  such  an intermediate I cadre of Officiating Deputy Collectors. We therefore, hold that the second proviso to Rule I of  the Rules of 30th July, 1959 is void as being violative of  Art. 16  of the Constitution.  We also declare the Procedure  for Promotion to the cadre of Deputy Collectors followed by  the State  Government to be invalid on the grand that it  denies equality of opportunity of promotion ago is therefore hit by Art 16 of the Constitution.  The Government Resolution dated 7th  April 1961 must also. be quashed and set aside for  the same reason.  We direct the State Government to readjust the promotions  as  officiating Deputy Collectors  as  also  the confirmed in the cadre, of Deputy Collectors in the light of the principles laid down in this judgment.  The readjustment shall be made with retrospective effect and the  petitioners shall  be  given  the benefit of  seniority  pay  and  other allowances  from  the respective dates on which  they  would have been promoted, had the promotions been made on the cor- rect  basis  indicated  in  the  judgment,  subject  to  the qualification  that  so  far as arrears  of  pay  and  other allowances  are  concerned, they May no+ be  given  for  the period  prior  to  the  Ming of  the  petition.   The  first respondent  will  pay  the  costs of  the  petition  to  the petitioners. Before we part with this case we may add a paragraph by  way of  epilogue.   We  find  in  the  course  of  our  judicial

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 24  

experience,  and we notice this fact with some  apprehension that members of public services in alarmingly large  numbers resort  to  legal remedies in courts of  law  for  agitating their grievance in regard to service matters.  This (1)  [1641] 7 S.C.R. 228. 239 phenomenon  is  symtomatic  of  a  sense  of  injustice  and subversive  of  that  undivided  and  devoted  attention  to official  duties which is., so essential for  efficient  and dynamic  functioning of the Government. it  can,  therefore, hardly  be,  over emphasised that there is  great  need  for simplifying  and streamlining service rules and giving  them statutory  shape  so  as to promote  contentment  among  the services  by  extending  the areas of  equal  treatment  and imparting  stability  to conditions of service.  It  is  not desirable  that the, fortunes of such a vital and  strategic instrument  of Government as the public services  should  be left  to  be governed by mere departmental  resolutions  and executive  instructions.   These cannot take  the  place  of statutory  rules  which  alone  can  impart  stability   and security  and ensure observance of the rule of  law.   Legal rules  must govern the recruitment and conditions of  public servants so that there is no arbitrariness or inequality  in State  action in regard to them and the rule of law  is  not eroded.  And such rules should preferably be framed  without avoidable  delay  and after consultation with  groups  which apprehend  discriminatory treatment as that would go a  long way to produce a sense of contentment and satisfaction.   We make  these  observations  not with a view  to  casting  any reflection on the administration but to highlight a  problem which  has come to our notice quite often, in the hope  that it  will help the social dimensions of the problem  and  the damage  to public interest which may be likely to result  if the problem is not promptly and satisfactorily resolved. V.P.S. Petition allowed. 240