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PETITIONER: STATE OF GUJARAT

       Vs.

RESPONDENT: A.C. SHAH AND OTHERS

DATE OF JUDGMENT16/03/1993

BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. AGRAWAL, S.C. (J)

CITATION:  1994 AIR 1269            1993 SCR  (2) 383  1993 SCC  Supl.  (4) 690 JT 1993 (3)   591  1993 SCALE  (2)307

ACT: Constitution of India, 1950 : Article  136--Appeal--Relevant facts  and  circumstances not placed before the  High  Court remanding the matter back to High Court for reconsideration. Civil    Service    :    Gujarat    State    Public    Works Department--Electrical  Engineering Branch--Trifurcation  of Cadres--Promotion  to  the posts of  Deputy  Engineers  High Court’s direction to provide criterion for  promotion--Quota rule   at   the  ratio  of   2:1--Legality   of--Facts   and circumstances not placed before the High Court--Effect of.

HEADNOTE: The   appellant-State   by   resolution   dated   10.7.1972, trifurcated  the  services, in  the  Electrical  Engineering Branch  of  the Public Works Department into  three  cadres, namely, (1) Junior Engineers, (2) Supervisors and (3)  Over- seers, w.e.f. 1.5.1972. At the relevant time there was  only one Overseer and he stood retired.  Therefore, In  substance it   was   a  bifurcation  between  Junior   Engineers   and Supervisors the former being graduates and the latter  being diploma holders. In  a  writ petition before the High Court exercise  of  the State was challenged. The High Court directed the State to provide for a criterion for promotion from the three independent cadres, for working out the trifurcation. In compliance of the order of the High Court, the  appellant adopted  a  Resolution dated 26.9.1975 introducing  a  quota rule  effective  from May 1, 1972 at the ratio  of  2:1  for Junior Engineers and Supervisors respectively for  promotion to the posts of Deputy Engineers. The   respondents challenged the trifurcation and  also  the quota rule in a writ petition before the High Court. 384 The High Court struck down the ratio of 2:1 holding it to be unjustified as also the disparity in qualifying service from both the channels. Hence  this  appeal  by special leave by  the  State,  being aggrieved against a mandamus-issued by the High Court not to impose the ratio of 2:1 while working out the quota rule. As  the  appellant was unsuccessful in obtaining a  stay  of

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operation  of the High Court’s judgment, it had to obey  the mandate of the High Court and the ratio of 2:1 could not  be enforced. This  Court on 18.12.1980 ordered the Government to frame  a fresh quota rule consistent with the High Court judgment for the purpose of making promotions during the pendency of  the appeal and under Article 309 of the Constitution, a Rule was framed.   Earlier  the  appellant  had  framed  the   Deputy Engineer (Electrical) Recruitment Rules, 1978 under  Article 309  of  the  Constitution, which were not  brought  to  the notice   of  the  High  Court  nor  the  Rules,  1978   were challenged. Allowing this appeal, this Court, HELD:1.01. The matter in the High Court proceeded on the as- sumption  that  an executive action of the State  was  under challenge.  The necessary assumptions and presumptions, well known to law and the placement of onuses went unnoticed.  In this  background  and facing the situation  so  arising  the State Government issued a Notification on April 12, 1982  by causing  a  substitution  in the earlier Rules  of  1978  by fixing  the promotional ratio from both sources at 1:1,  but subjected  them  to  the result of  the  instant  litigation emerging from this Court. [387D-E] 1.02.  The High Court judgment is silent as to the basis  on which  it was persuaded to strike down the ratio of 2:1  for Junior Engineers and Supervisors respectively.  The tenor of the judgment of the High Court does however suggest that the executive flexibility, with which the Government works could not  justify  the fixation of the ratio of  2:1.   The  High Court  could not and did not substitute what was  the  right ratio in the circumstances and left it to the Government  to devise another ratio.  Had the factum of the legislation  on the  subject i.e. the Rules dated 4.7.1978, been brought  to its  notice, perhaps the High Court’s angle of vision  would have been different [387F-G] 385 1.03.  The State has no doubt compulsively carried  out  the mandate  but has done so with reservation so as to meet  the eventuality.   No  such measure can ever be  permanent  that would hold good for all times, to meet not only the  present needs  but  also future exigencies as well.   Hands  of  the State  cannot  be  so  tied down.   ’Mat  would  be  a  step retrograde to the growth and working of a democracy.  [387H, 388A] 1.04.  It was on the Writ petitioner’s (now respondents)  to lay  data  before the High Court and bear the onus  to  show that  the  legislative  measure was  unfair  and  arbitrary, violative  of Article 14 of the Constitution.  No such  data appears to have been placed before the High Court. [388B] 1.05.  On  these circumstances the case is remanded  to  the High Court for reconsideration. [388C] Roop  Chand  Adlakha & Om v. Delhi Development  Authority  & Ors., [1989] Supp I SCC 116, referred to. [388D]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1749 of 1980. From the Judgment and Order dated 26.3. 1980 of the  Gujarat High Court in Special Civil Application No. 1606 of 1975. D.A.   Dave,   Vimal  Dave,  R.  Karanjawala,   Mrs.   Manik Karanjawala,   Jitender  Singh  and  P.K  Mullick  for   the Appellant. R.R.  Goswami, S.K Dholakia, P.H. Parekh, Fazal, H.K  Rathod and S.C. Patel for the Respondents.

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The following Order of the Court was delivered: The  State  of Gujarat, the appellant herein,  is  aggrieved against  a mandamus issued by the High Court of  Gujarat  on March  26,  1980 ’in Special Civil Application  No.  1606/75 whereby its decision to impose a ratio while working out  a, Quota rule was upset. The minimum facts are these:- In  the  State  Public  Works  Department     there  was  an Electrical Engineering Branch.  By Resolution dated July 10, 1972, the services in the said branch w.e.f May 1, 1972 were trifurcated on the same pattern as was 386 done   in   other  branches.   The  result  was   that   the trifurcation  ended into three cadres (1) Junior  Engineers, (2)  Supervisors  and (3) Over-seers.   The  compartment  of Over-seers is a surplus-age.  There was only one Overseer at the relevant time and he stood retired.  In substance it was a bifurcation between Junior Engineers and Supervisors,  the former being graduates and the latter being diploma holders. This  exercise of the State Government was challenged  in  a writ  petition  before  the  High  Court  in  Special  Civil Application  No.  1855/73, which was negatived by  the  High Court  by  an order dated 2nd April, 1975.  The  High  Court directed that in working out the trifurcation the Government must   provide  criterion  for  promotion  from  the   three independent  cadres.   In  compliance  thereof,  the   State Government adopted a Resolution dated 26.9.1975  introducing a quota rule effective from May 1, 1972 at the ratio of  2:1 for  Junior  Engineers  and,  Supervisors  respectively  for promotion  to  the  posts of  Deputy  Engineers.   The  nine contesting  respondents  herein preferred  a  writ  petition being Special Civil Application No. 1606/75 before the  High Court  challenging the trifurcation as also the quota  rule. The  High  Court  repelled the challenge in  so  far  as  it related  to the trifurcation and the adoption of quota  rule but  struck  down  the  ratio  of  2:1  holding  it  to   be unjustified as also the disparity in qualifying service from both the channels.  The High Court concluded as follows:               "We are, therefore, of the opinion that though               it   was  within  the  power  of   the   State               Government to bifurcate the unified cadre into               two  distinct cadres of Junior  Engineers  and               Supervisors and though it was within the power               of  the State Government to prescribe a  quota               for both of them for the purpose of  promotion               to the higher posts of a Deputy Engineer there               was no justification for prescribing the quota               of 2:1 and a longer qualifying service for the               Supervisors.  Therefore, the promotional  rule               which prescribes unequal quota and an  unequal               length  of qualifying service for  Supervisors               for  promotion  to  the  posts  of  a   Deputy               Engineer is liable to be struck down."               And accordingly it did by issuing a mandamus. The State Government of Gujarat when appealing to this Court was  unsuccessful  in obtaining a stay of operation  of  the impugned judgment. 387 As  a  consequence it had to obey the mandate  of  the  High Court  which was to the effect that the ratio of  2:1  could not  be  enforced.  As a result the quota rule went  out  of gear.  It was left open all the same to the State Government to  make any other rational rule in that behalf.  Even  this Court  on  18.12.1980, at that juncture, ordered,  "Let  the Government frame a fresh quota rule consistent with the High

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Court  judgment  under  appeal for  the  purpose  of  making promotions  during  the pendency of  the  appeal.’  Pursuant thereto,   it   appears  that  the  State   Government   was constrained  to introducing of a Rule under Article  309  of the  Constitution.   But before we advert to  that  Rule  it would be relevant to mention that earlier in point of  time, by  Notification dated July 4, 1978, Rules known  as  Deputy Engineer  (Electrical) Recruitment Rules, 1978, were  framed under  Article  309 of the Constitution giving  a  statutory clothing  to  the  Resolutions dated  10.7.72  and  26.9.75. Unfortunately,  these statutory provisions were not  brought to  the  notice  of  the High Court nor  were  they  put  to challenge.   The matter in the High Court proceeded  on  the assumption  that an executive action of the State was  under challenge.  The necessary assumptions and presumptions, well known to law and the placement of onuses went unnoticed.  In this  background  and facing the situation  so  arising  the State Government issued a Notification on April 12, 1982  by causing  a  substitution  in  the  earlier  Rules  of   1978 aforementioned  by fixing t he promotional ratio  from  both sources  at  1:1, but subjected them to the  result  of  the instant litigation emerging from this Court. We stand deprived of the pleadings of the parties before the High  Court.  The pleadings now introduced do not  help  us. Significantly,  the High Court judgment is silent as to  the basis on which it was persuaded to strike down the ratio  of 2:1 for Junior Engineers and Supervisors respectively.   The tenor of the judgment of the High Court does however suggest that  the executive flexibility, with which  the  Government works  could not justify the fixation of the ratio  of  2:1. The High Court could not and did not substitute what was the right  ratio  in  the  circumstances  and  left  it  to  the Government to devise another ratio.  Had the, factum of  the legislation  on the subject the Rules dated  4.7.1978,  been brought  to  its notice, perhaps the High Court’s  angle  of vision  would have been different.  The State has  no  doubt compulsively  carried out the mandate but has done  so  with reservation so as to meet the eventuality.  No such  measure can ever be permanent that would hold good for all times, to meet  not only the present needs but also future  exigencies as well.  Hands of the State cannot to so 388 tied  down.  That would be a step retrograde to  the  growth and working of a democracy.  The State is now left to devise a  ratio other than the ratio of 2:1 and cause a  variation. It  cannot come to that ratio again.  This appears to us  an undesirable situation.  It must be left to the State to  get at, it again. Though obeying the mandamus of the High  Court the  State must be free to arrive at the original  ratio  of 2:1.   On  some basis the Governor of the State  appears  to have  legislated  on  the  subject.   It  was  on  the  writ petitioner’s  (now respondents) to lay data before the  High Court and bear the onus to show that the legislative measure was  unfair  and arbitrary, violative of Article 14  of  the Constitution.   As said before no such data appears to  have been placed before the High Court. On  these circumstances, we are left with no option  but  to upset  the judgment of the High Court and remand the  matter back  to it for reconsideration.  In doing so we may set  at rest  the  controversy  regarding difference  of  length  of qualifying service, from both sources.  The controversy does not  survive in view of Roop Chand Adlakha & Ors.  v.  Delhi Development Authority & Ors., [1989] Supp.  I SCC 116.   The High Court need not advert now to the disparity in length of qualifying  service from the channels of promotion.  In  the

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meantime,  however, status quo needs to be  preserved.   The substituted Service Rules of 1982 shall continue to  operate till  the decision of the High Court and the promotions,  as before,  shall  continue,  subject  to  the  result  of  the judgment  of  the High Court.  In these terms we  allow  the appeal and set aside the judgment.  The High Court may  pass appropriate  orders afresh, after permitting the parties  to amend their pleadings, if necessary, and putting the onus on the writ petitioners to prove unfairness in the 1978  Rules, or violation of Article 14 of the Constitution.  Since it is an old matter, we request the High Court to dispose it of as quickly  as  possible,  preferably within  six  months.   No Costs. V.P.R.                                  Appeal allowed. 389