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PETITIONER: S. S. KARMALKAR & OTHERS ETC.

       Vs.

RESPONDENT: IBRAHIM HUSSENI TAMBOLI & OTHERS ETC.

DATE OF JUDGMENT31/10/1988

BENCH: DUTT, M.M. (J) BENCH: DUTT, M.M. (J) NATRAJAN, S. (J)

CITATION:  1989 AIR  430            1988 SCR  Supl. (3) 712  1989 SCC  (1) 219        1988 SCALE  (2)1516

ACT:     Civil  Services:  Food  and  Civil  Supplies  Department Sholapur--Whether  part and parcel of  Revenue  Department-- Inspecting Officers--Status of

HEADNOTE:     The  appellants  were promoted in January 1981  as  Awal Karkuns  in  the  Department of  Food  and  Civil  Supplies, Sholapur. At the same time, the private respondents  holding those posts were directed to be repatriated to their  parent department,  that  is, the Revenue Department.  The  private respondents  challanged these orders by way of a civil  suit on  the  ground that these orders were unjust,  illegal  and violative  of  Articles 14 and 16 of the  Constitution.  The Civil Judge decreed the suit. The Additional Sessions  Judge and the High Court upheld the decree. The High Court came to the  finding  that  the Food &  Civil  Supplies  Department, Sholapur, had no separate existence on the date the impugned order  was  passed and that it was part and  parcel  of  the Revenue Department.     It  is contended by the private respondents that on  the abolition  of  the  statutory rationing, the  Food  &  Civil supplies  Department was abolished, and the appellants  were absorbed  in  the  Revenue Department.  This  contention  is disputed by the appellants.     Allowing the appeals, it was,     HELD:   (1)   It  was  not  disputed  that   after   the introduction  of  statutory  rationing,  the  Food  &  Civil Supplies Department was an independent Government Department at Sholapur. [71G]     (2)  It  was  wrong  to assume that  the  Food  &  Civil Supplies  Department dealing with food and  supply  thereof. was  abolished consequent on the abolition of the  statutory rationing. [718D]     (3)  The fact of introduction or abolition of  statutory rationing  had nothing to do with the question of  food  and supply thereof, which  must be dealt with by some department of the Government and after the creation of the Food & Civil                                                   PG NO 712                                                   PG NO 713 Supplies  Department, it was dealt with by that  Department. [718C]

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   (4)  As the Department existed, it could  be  reasonably presumed  that  it  had its own staff  and  the  appellant’s contention  that  they  were retained in the  Food  &  Civil Supplies Department seemed to be correct. [718E]     (5)  There  was  no material in  proof  of  the  alleged absorption  of  the appellants in  the  Revenue  Department. Moreover,  as  they  did  not  fulfil  the  conditions   for absorption  in  the Revenue Department, they  could  not  be transferred to or absorbed in that Department. [717C; 718H]     (6) It is true that there was no order showing that  the respondents were transferred on deputation from the  Revenue Department to the Food & Civil Supply Department. It  could, however,  be reasonably presumed that the  respondents  were sent on deputation to the Food & Civil Supplies  Department, otherwise  there  was no question of their  repatriation  to their parent department. [718H; 719A]     (7)  It was apparent from the fact that  separate  rules were  framed  for recruitment of officers in  the  Food  and Civil  Supplies  Department and a final gradation  list  was also  prepared  and  published,  that  the  Food  and  Civil Supplies  Department was not part and parcel of the  Revenue Department, but it had a separate and independent existence. [719G]     (8) As the appellants belonged to a different department their  promotions  would be governed by the  rules  of  that department.   Similarly,  the  promotion  of   the   private respondents would be considered in accordance with the rules of the Revenue Department. [721A]     Shri  Atmaram  Chaturvedi  Garbude & Ors.  v.  State  of Maharashtra  & Ors., Special Civil Application Nos.  707  of 1974  and  4834 of 1976--Bombay High  Court,  Nagpur  Bench, referred to.

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3804  to 3807 of 1988.     From  the  Judgment and Order dated  23.11.1987  of  the Bombay High Court in Second Appeal No. 404 of 1985, W.P. No. 607 of 1985 ant Second Appeal No. 86 of 1986.     R.K.  Garg,  Vijay Hansaria and Sunil K.  Jain  for  the Appellants.                                                   PG NO 714     S.B. Bhasme, V.M. Tarkunde, A.S. Bhasme, V.N. Ganpule, S K. Agnihotri, A.G. Pawar and A.B . Lal for the Respondents.     The Judgment of the Court was delivered by     DUTT, J. Special leave is granted in all these  matters. Heard learned Counsel for the parties.     The principal question that is involved in these appeals is  some-what peculiar. The question is whether the  Food  & Civil  Supplies  Department, Sholapur, has  a  separate  and independent  existence or whether it is part and  parcel  of the Revenue Department. The best authority which can  answer the question is the Government, but the Civil Courts and the High  Court  have  not been able to  accept  the  Government version that the Food & Civil Supplies Department, Sholapur, is  an independent Government Department and does  not  form part  of  the Revenue Department. The facts leading  to  the question will be stated presently.     The  Commissioner of Pune Division, by his  order  dated January  27, 1981, granted promotions to the  appellants  to the  posts  of Awal Karkuns, and directed that  the  private respondents  herein, who were holding these posts  would  be repatriated to their parent department, that is, the Revenue

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Department. Aggrieved by the said order of the Commissioner, Pune Division, some of the private respondents filed a civil suit  for a declaration that the said order granting out  of turn  promotions  to  the appellants  as  Awal  Karkuns  was unjust,  illegal and violative of the fundamental rights  of the  respondents guaranteed under Articles 14 and 16 of  the Construction  of  India.  The learned  Civil  Judge,  Senior Division,  Sholapur, decreed the suit and declared that  the impugned  order  of  the Commissioner,  Pune  Division   was discriminatory,   illegal   and   not   binding   upon   the respondents.  The  learned  Civil  Judge  also  granted   an injunction  permanently  restraining  the  Government   from reverting the respondents from the posts of Awal Karkuns  to the posts of Clerks on appeal. the Fourth Addition  District Judge, Sholapur, upheld the judgment and decree of the Civil Court  and dismissed the appeal preferred by the  appellants and the State of Maharashtra The appellants and the State of Maharashtra  filed two separate second appeals to  the  High Court  of Bombay. In the meantime, some of  the  respondents also filed writ petitions in the High Court challenging  the validity  of  the impugned order of the  Commissioner,  Pune Division. The High Court, by a common judgment, disposed  of the  second appeals  and  the writ petitions. The High Court                                                   PG NO 715 came  to  the  finding  that  the  Food  &  Civil   Supplies Department, Sholapur, had no separate existence on the  date the  impugned  order was passed, and that it  was  part  and parcel  of  the Revenue Department. Upon that  finding,  the High Court dismissed the second appeals and allowed the writ petitions of the respondents.     It is not disputed before us that before 1965, there was no  such Department as the Food & Civil Supplies  Department at Sholapur. Initially, the Agriculture, Food &  Cooperation Department of the Government was entrusted with the  subject of food and the supply thereof. By a circular dated  January 13, 1965 of the Government of Maharashtra, a new  department called  "the  Civil Supplies Department" was created.  By  a subsequent  Government  circular dated May 13, 1965  it  was renamed  as "Food & Civil Supplies Department .  It  appears from  the said Government circular dated January  13,  1965, creating  the  department,  that  the  Agriculture,  Food  & Cooperation  Department  was renamed as  the  Agriculture  & Cooperation Department. In other words, the subject of  food was  withdrawn from the said  and a new  Department,  namely the Civil Supplies Department. subsequently renamed as  Food & Civil Supplies Department, was created.     After  the  creation  of  the  Food  &  Civil   Supplies Department  the  rationing was introduced in  Sholapur  City and  Salgarwadi area under the control of the Food  &  Civil Supplies  Department which will appear from  the  Government resolution   dated  February  19,  1966.  As  a  result   of introduction of statutory rationing several posts had to  be created in the establishment of the Controller of Rationing, which  was  admittedly a part of the Food &  Civil  Supplies Department.  Certain  posts were also transferred  from  the Revenue  Department to the Food & Civil Supplies  Department along  with the holders of such posts. The most  significant fact in this regard is that the holders of the posts had  to be  appointed  afresh  as  personnel of  the  Food  &  Civil Supplies   Department  which  will  also  appear  from   the Government  resolution  dated February 19 1966.  It  is  not disputed  that  at  the  time that  is  to  say,  after  the introduction  of  statutory  rationing,  the  Food  &  Civil Supplies Department was an independent Government Department at Sholapur.

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   The  statutory  rationing was discontinued  in  Sholapur with  effect from May, 1, 1968. The posts in  the  rationing establishment  were directed to be merged in the  office  of the  Foodgrain  Distribution  Officer,  Sholapur,  and   the expenditure  on that account was directed to be  debited  to                                                   PG NO 716 the budget head "26-Miscellaneous Department Civil  Supplies Department (iii) Procurement, Distribution and Price Control (b) Mofussil" and met from the grants sanctioned thereunder.     It is, however, not disputed that some of the  rationing staff  were  retrenched, some were absorbed in  the  Revenue Department  and  the  remaining staff were  directed  to  be merged in the office of the Food grain Distribution Officer, Sholapur,  with  effect  from May 1, 1969.  So  far  as  the appellants   before   us  are  concerned,  they were not retrenched,  but according to the private  respondents  they were  absorbed  in  the Revenue Department.  This  has  been emphatically disputed by the appellants.     Mr. Tarkunde, learned Counsel appearing on behalf of the private  respondents,  has drawn our attention to  a  letter dated October 25, 1969 written by the Foodgrain Distribution Officer,   Sholapur,  to  the  Collector,  Revenue   Branch, Sholapur.  In  that  letter,  the  Food  grain  Distribution Officer,  Sholapur, requested the Collector to   absorb  the remaining  staff of the rationing department, who were  then working in the Foodgrain Distribution Office. At this stage, it  may  be   that  there  is  no  dispute  that  both   the Departments,  namely, the Food & Civil  Supplies  Department and   the  Revenue  Department,  were  under  the   District Collectorate.  A list was attached to the said letter  dated October  25,  1969  of the  Foodgrain  Distribution  Officer relating  to  absorption of rationing staff in  the  Revenue Department.  The list contains the names of  the  appellants and  under  column No. 7 of the list, it has  been  recorded that  the appellants and other remaining staff were  willing to  work  in  the Revenue Department. In view  of  the  said letter  of the Foodgrain Distribution Officer and  the  list annexed  to  his  letter written to  the  Collector,  it  is submitted  by the learned  Counsel, appearing on  behalf  of the   private   respondents,  that   the   appellants   were transferred  to the Revenue Department as the Food  &  Civil Supplies  Department was abolished on the abolition  of  the statutory rationing.     It  has been already noticed that some of the  staff  of the rationing  establishment, who were not retrenched,  were transferred  to  the office of  the  Foodgrain  Distribution Officer.   According  to  the  respondents,  the   Foodgrain Distribution  Office is under the Revenue Department,  while the  appellants  aver that it belongs to the  Food  &  Civil Supplies Department. In this regard, the most important  say is  that of the Government. It is asserted on behalf of  the State  of  Maharashtra  that  the  Food  grain  Distribution Officer belongs to the Food & Civil Supplies Department. The                                                   PG NO 717 controversy  in  this  respect can  be  easily  resolved  by referring  to the said letter dated October 25, 1969 of  the Foodgrain  Distribution  Officer to the  Collector,  Revenue Branch. If the Foodgrain Distribution Office belongs to  the Revenue Department, there was no necessity for the Foodgrain Distribution  Officer  to  request  the  Collector,  Revenue Department,   to  absorb  the  unretrenched  staff  of   the rationing  establishment.  Be that as it may,  the  question that  arises is whether the appellants were absorbed in  the Revenue  Department. It is true that under column No.  7  of the  list annexed to the said letter dated October 25,  1969

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of the Food grain Distribution Officer, it has been recorded that  the  appellants  and  other  staff  of  the  rationing establishment   were   willing  to  work  in   the   Revenue Department.  There  is, however, nothing to show that  as  a matter  of  fact  the appellants  were  transferred  to  the Revenue  Department. The appellants might be willing  to  be absorbed in the Revenue Department, but there is no material in proof of the alleged absorption of the appellants in  the Revenue  Department.  It is also not the case of  the  State Government that the appellants were absorbed in the  Revenue Department.  In the counter affidavit of the respondent  No. 1, it is stated as follows:     "That   the  District  Collector  of  Solapur   by   his memorandum  dated  17-4-1969  laid down  the  conditions  of giving  alternative  employment to the  retrenched  ex-civil supply staff in Revenue Department. These conditions are:     (1)   That  the  services  in  Revenue  Department   are transferable throughout the district.     (2)   That  Revenue  employees  are  required  to   pass departmental examination within prescribed period.     (3) That to hold Awal Karkun’s post Revenue employee  is required  to  pass revenue qualifying exam. in  addition  to Sub-Service Department Examination."     It is clear from the statement extracted above that  one of  the  conditions for absorption was that  the  appellants were  required to pass the departmental  examination  within the  prescribed period. Another conditions was that one  had to  pass revenue qualifying examination in addition to  Sub- Service Department Examination for holding the post of  Awal Karkun  in the Revenue Department. It is not  disputed  that the  appellants have not passed any of  these  examinations. This  shows that as they did not fulfil the  conditions  for                                                   PG NO 718 absorption  in  the Revenue Department, they  could  not  be transferred to or absorbed in that Department.     The  High Court proceeded on the assumption that on  the abolition  of  the  statutory rationing, the  Food  &  Civil Supplies  Department, Sholapur, also came to be  absolished. Indeed,   this  is  also  the  contention  of  the   private respondents.  Food is an important matter  for  Government’s consideration   and  it  was  the  responsibility   of   the Agriculture,  Food  &  Cooperation  Department  before   the creation  of the Food & Civil Supplies Department. The  said Department   was  renamed  as  ‘Agriculture  &   Cooperation Department’  inasmuch  as   food ’ was  taken  out  of  that Department  and  placed  under the  Food  &  Civil  Supplies Department.  Thus, the fact of introduction or abolition  of statutory  rationing has nothing to do with the question  of food  and supply thereof, which must be dealt with  by  some department  of the government and after the creation of  the Food & Civil Supplies Department, it was dealt with by  that Department.  It  will be wrong to  assume that  the  Food  & Civil  Supplies  Department  dealing with  food  and  supply thereof,  will be abolished consequent on the  abolition  of the  statutory  rationing. In the counter affidavit  of  the State   of   Maharashtra,  affirmed   by   Shri   Chandrasen Pandarinath  Kamble, it has been stated inter alia  that  in the  State  of Maharashtra there is a system of  Fair  Price Shops and Household Card System in the areas where statutory rationing  system does not exist This Fair Price  Shops  and Household  Card system undoubtedly comes under  the  control and supervision of the Food & Civil Supplies Department.  As the Department existed it can be reasonably presumed that it had  its own staff and the appellants contention  that  they were retained in the Food & Civil Supplies Department  seems

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to  be correct. Merely the fact of giving of consent by  the appellants  to their absorption in the  Revenue  Department, fails  to  persuade  us to hold  that  the  appellants  were absorbed  in the Revenue Department, in the absence  of  any proper material in that regard.     A  question has, however, been raised on behalf  of  the private   respondents that if the Department of Revenue  and the  Food  &  Civil Supplies Department  are  two  different Departments of the Government, there is no material to  show how  the respondents came to hold posts in the Food &  Civil Supplies  Department.  It  is true that there  is  no  order showing that the respondents were transferred on  deputation from  the  Revenue Department to the Food &  Civil  Supplies Department.  In  our  opinion,  in view  of  the  facts  and circumstances  stated above, it can be  reasonably  presumed                                                   PG NO 719 that  the respondents were sent on deputation to the Food  & Civil  Supplies Department, otherwise there was no  question of  their repatriation to their parent department, that  is, the  Revenue  Department. There are  other  materials  which would  also  justify  the  finding that  the  Food  &  Civil Supplies  Department and the Department of Revenue  are  two independent   and  separate  Departments  even   after   the abolition of statutory rationing.     The Governor of Maharashtra, by an order dated April 13, 1983,  framed rules under the proviso to Article 309 of  the Constitution  of  India for regulating  recruitment  to  the posts  of Assistant Commissioner (Supply),  District  Supply Officer and Foodgrain Distribution Officer Class-I under the Food  &  Civil  Supplies Department  of  the  Government  of Maharashtra.  Framing  of these rules,  proves  two  things, namely,  that  the  Food &  Civil  Supplies  Department  has independent  and separate existence, and that the  Foodgrain Distribution Officer belongs to that Department. Another set of rules was framed under the proviso to Article 309 of  the Constitution of India by the notification dated May 21, 1984 for  regulating recruitment to Class-11 posts in the Food  & Civil Supplies Department of the Government of  Maharashtra. The framing of these rules for regulating the recruitment of officers  in the Food & Civil Supplies  Department  supports the  case of the appellants and also of the Government  that the  Food  &  Civil  Supplies  Department  Sholapur,  is  an independent  Department. The final gradation list of  supply staff  of directly recruited Clerks and Godown  Keepers  was prepared  and published. It is. however contended on  behalf of  the private respondents that the supply staff belong  to the  Revenue  Department.  This contention  is  without  any substance. The words supply staff undoubtedly, refer to  the supply  staff of the Food & Civil Supplies Department .  The State  Government is justified in placing reliance upon  the gradation list in support of its case that the Food &  Civil Supplies   Department   is  an  independent   and   separate Department.     It  is,  therefore,  apparent  from  the  above   facts, particularly  the  fact that separate rules were framed  for recruitment  of  officers  in  the  Food  &  Civil  Supplies Department and a final gradation list was also prepared  and published, and the Food & Civil Supplies Department not part and  parcel of the Revenue Department but it has a  separate and  independent existence. This finding finds support  from another  fact  that  the  Revenue  Department  has  its  own gradation  list  of  its  employees  including  the  private respondents.                                                   PG NO 720     We may now deal with one more submission made on  behalf

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of the private respondents. Our attention has been drawn  to a  fact  which  has also been noticed  by  the  High  Court, namely,   that   by  a  Government  order  issued   to   all Commissioners  of Divisions, it was directed that the  posts of  Inspecting  Officers  should be made  available  to  the persons from the Revenue Department as well as from the Food &  Civil  Supplies Department in the ratio of 75:25.  It  is submitted  on  behalf of the private respondents  that  this Government  order  points to the fact that both the  Food  & Civil Supplies Department and the Revenue Department are one and the same Department at Sholapur. We are unable to accept this  contention. The Government order in question,  in  our opinion,  establishes the fact that the two Departments  are separate Departments of the Government. It has been  already noticed  that some officers of the Revenue  Department  were holding  the posts in the Food & Civil Supplies  Department, Sholapur,  presumably  on deputation and, hence,  the  ratio with regard to the posts of Inspecting Officers, with  which we  are  not  concerned,  had  to  be  fixed.  If  the   two Departments  were  not separate Departments,  there  was  no necessity for mentioning the names of these two  Departments in  the  said order. It is not disputed that  the  posts  of Inspecting  Officers are posts of the Food & Civil  Supplies Department. The contention of the private respondents  based on the said Government order is, accordingly, rejected.     Before  we  conclude the judgment, we may  refer  to  an unreported Bench decision of the Nagpur Bench of the  Bombay High  Court in Special Civil Applications Nos. 707  of  1974 and  4258 and 4834 of 1976 (Shri Atmaram Chaturji Garbade  & Ors. v. State of Maharashtra &  Ors.) disposed of on January 13, 1977 where it has been held that the two departments are separate. It is, however, contended by Mr Tarkunde that  the Nagpur Bench decision has no bearing on the instant  appeals before us as it relates to the city of Nagpur and cantonment in Kampte where the Food & Civil Supplies Department was not abolised.  It, however, appears that in that  decision,  the Bench   has      taken  into  consideration  some   common documents. Be that as it may, in the instant appeals,  there are ample materials which justify the   conclusion that  the two departments are not one and the same department but  are two separate departments.     In  the circumstances, we are unable to agree  with  the High Court that the appellants are employees of the  Revenue Department inasmuch as after the abolition of the  statutory rationing,  the  Food & Civil Supplies Department  was  also abolished  and the appellants were absorbed in  the  Revenue                                                   PG NO 721 Department.   As  the  appellants  belong  to  a   different department,  their promotions will be governed by the  rules of that department. Similarly, the promotions of the private respondents will be considered in accordance with the  rules of  the  Revenue Department. We are told  that  after  their repatriation  to  their parent department  all  the  private respondents were promoted to the posts of Awal Karkuns.     For the reasons aforesaid, we set aside the judgment  of the  High Court as also of the trial court and that  of  the lower appellate court and dismiss the suit and the  appeals. The  writ  petitions  filed’  in the  High  Court  are  also dismissed.  The instant appeals are allowed, but in view  of the  peculiar  facts and circumstances of the  cases,  there will be no order as to costs. R .S.S.                                      Appeals allowed.