{"id":65270,"date":"1976-11-01T00:00:00","date_gmt":"1976-10-31T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/n-k-chauhan-ors-vs-state-of-gujarat-ors-on-1-november-1976"},"modified":"2018-08-21T07:38:53","modified_gmt":"2018-08-21T02:08:53","slug":"n-k-chauhan-ors-vs-state-of-gujarat-ors-on-1-november-1976","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/n-k-chauhan-ors-vs-state-of-gujarat-ors-on-1-november-1976","title":{"rendered":"N.K. Chauhan & Ors vs State Of Gujarat & Ors on 1 November, 1976"},"content":{"rendered":"
Supreme Court of India<\/div>\n
N.K. Chauhan & Ors vs State Of Gujarat & Ors on 1 November, 1976<\/div>\n
Equivalent citations: 1977 AIR 251, \t\t 1977 SCR (1)1037<\/div>\n
Author: V Krishnaiyer<\/div>\n
Bench: Krishnaiyer, V.R.<\/div>\n
           PETITIONER:\nN.K. CHAUHAN & ORS.\n\n\tVs.\n\nRESPONDENT:\nSTATE OF GUJARAT & ORS.\n\nDATE OF JUDGMENT01\/11\/1976\n\nBENCH:\nKRISHNAIYER, V.R.\nBENCH:\nKRISHNAIYER, V.R.\nBHAGWATI, P.N.\nFAZALALI, SYED MURTAZA\n\nCITATION:\n 1977 AIR  251\t\t  1977 SCR  (1)1037\n 1977 SCC  (1) 308\n CITATOR INFO :\n RF\t    1980 SC1275\t (24)\n R\t    1980 SC2056\t (73)\n RF\t    1981 SC  41\t (29,31)\n AP\t    1981 SC 357\t (5)\n E\t    1981 SC 561\t (70,72)\n R\t    1982 SC1244\t (10,14)\n R\t    1983 SC 769\t (22)\n R\t    1984 SC1291\t (19,31)\n RF\t    1985 SC 774\t (20)\n R\t    1985 SC 781\t (13)\n R\t    1985 SC1019\t (27)\n D\t    1985 SC1681\t (5)\n RF\t    1986 SC 638\t (15)\n RF\t    1986 SC1455\t (10,11,12,16,17,18,19,20)\n E&D\t    1987 SC 424\t (11,13,24)\n RF\t    1987 SC1676\t (11)\n RF\t    1987 SC2359\t (18)\n D\t    1988 SC 268\t (26)\n RF\t    1988 SC 654\t (10,13)\n R\t    1989 SC 278\t (21)\n R\t    1990 SC1007\t (20)\n NF\t    1991 SC 284\t (1,24)\n\n\nACT:\n\t    Constitution  of  India--Articles\t14-16--Civil   Serv-\n\tice--Seniority--Direct Recruits and promotees--Quota--Wheth-\n\ter roster implicit--Benefit of Service-Words &\tPhrases--\"As\n\tfar as practicable\".\n\n\n\nHEADNOTE:\n\t   The appellants are the promotee Deputy Collectors in\t the\n\tState of Gujarat. The contesting respondents are the  direct\n\trecruits to the parent cadre of Deputy Collectors.  7 Deputy\n\tCollectors  who\t are the contesting  respondents   in\tthis\n\tappeal and who were directly recruited as Deputy  Collectors\n\tin  and\t after\t1963 claimed that they were  senior  to\t the\n\tappellants  who were the promotees  promoted as Deputy\tCol-\n\tlectors\t between  the years 1960 and 1963 by filing  a\tWrit\n\tPetition in the High Court.  The routine source of  recruit-\n\tment to the posts of Deputy Collectors used to be Mamlatdars\n\twho  were  promoted as Deputy Collectors.  In  1939,  direct\n\trecruitment  policy was also evolved for this post.   By  an\n\torder  of  1941 the mode of  determining  seniority  between\n\tdirect recruits\t  and promotees was settled.  As far as\t the\n\tdirect recruits were  concerned,  their seniority was to run\n\tfrom  the date of their appointment on probation and in\t the\n\tcase of promotees such service was to begin with   promotion\n\tin  substantive vacancy if continued without break.   During\n\tthe year 1950 to 1959 the direct recruitment was  discontin-\n\tued.   By the Bombay Government Resolution dated  30-7-1959,\n\tthe  mode  of direct recruitment was again started  and\t the\n\tproportion  in which the recruitment from the  two  sources,\n\tnamely, the direct recruits and the promotees, was fixed  as\n\t50: 50 as far as practicable.\n\t    On\t1-5-1960,  the\tBombay\tState  was  bifurcated\tinto\n\tGujarat\t  and\tMaharashtra.  On 1-5-1960,  a  circular\t was\n\tissued by the Gujarat Government adopting the rules, resolu-\n\ttions, notifications etc. of the Bombay State.\tBy a further\n\tclarificatory resolution dated 27-5-1960 Gujarat  Government\n\tprovided  that nothing contained in the circular dated\t1-5-\n\t1960 shall apply to appointments of officers, authorities or\n\tpersons\t which\tmay be made by the Government on   or  after\n\t1-5-1960.   During the year 1959-62,.no\t direct\t recruitment\n\twas made but many promotions were effected.  The Writ  Peti-\n\ttion filed by the direct recruits was dismissed by a learned\n\tSingle\tjudge of the High Court.  The Division Bench of\t the\n\tHigh  Court, however, accepted\tthe  appeal  of\t  the\tcon-\n\ttesting respondents.\n\tIn an appeal by Special Leave the appellants contended:\n\t\t      1.  The expression 'as far as practicable'  in\n\t\t      the  resolution of  1959 provides\t a  sensible\n\t\t      safety valve.  Therefore, the rule is  neither\n\t\t      exception-proof  nor abstractly  absolute\t but\n\t\t      realistic and flexibly true to life.\n\t\t      2. The mandate of equality in Articles 14\t and\n\t\t      16 does not require pushing down the promotees\n\t\t      in  the  seniority list in the fact  of  their\n\t\t      actual service and legal appointment.\n\t\t      3.  Rotation is not implicit in quota.   Quota\n\t\t      without\trotation   is  also  reasonable\t and\n\t\t      constitutional as much as quota with rotation.\n\t\t      The  choice, both being permissible and  fair,\n\t\t      is left to the Administration.\n\t\t      4. The contesting respondents contended\n\t\t      (i) The rule of law is the enemy of  arbitrary\n\t\t      absolutism and the discretion to disobey is  a\n\t\t      doctrine\tof  despotism  and  cannot  be\tsub-\n\t\t      scribed to by a Court.\n\t\t      1038\n\t\t      (ii)  'As far as practicable does\t not  permit\n\t\t      the  State  to  deviate from  it.\t  It  merely\n\t\t      authorises  provisional variations  or  ad-hoc\n\t\t      solutions\t or emergency arrangements  to\tmeet\n\t\t      the  difficulty of the Administration  without\n\t\t      making  formal or regular appointments to\t the\n\t\t      posts in question.\n\t\t      (iii) Rotational system is implicit in quota.\n\t\t      (iv)-Any\tdeviation from rotational system  is\n\t\t      violative\t of Articles  14 and 16 of the\tCon-\n\t\t      stitution.\n\t\t      Allowing the appeal held:\n\t\t       1. The State in tune with the mandate of\t the\n\t\t      quota   rule   must  make serious\t efforts  to\n\t\t      secure  hands  to\t fill half  the\t number\t  of\n\t\t      vacancies\t from the open market.\tIf  it\tdoes\n\t\t      not  succeed   despite   honest\tand  serious\n\t\t      effort,  it qualifies for departure  from\t the\n\t\t      rule.  If it has become non-feasible,  imprac-\n\t\t      ticable to get the requisite quota  of  direct\n\t\t      recruits having done all that it could, it was\n\t\t      free to fill the\tPost  by promotion of  suit-\n\t\t      able  hands, if the filling up of the   vacan-\n\t\t      cies  was administratively necessary and could\n\t\t      not wait.\t The  sense  of\t the rule is that as\n\t\t      far as possible the quota system must be\tkept\n\t\t      up  and if not practicable promotees in  place\n\t\t      of direct recruits or direct recruits in place\n\t\t      of  promotees  may be  inducted  applying\t the\n\t\t      regular procedures without suffering the seats\n\t\t      to lie indefinitely vacant.\n\t\t\t\t\t\t [1050 F-H, 1051 A]\n\t\t      2.  The Government sent a requisition  for  12\n\t\t      posts  of\t Deputy Collectors  to\tthe  Gujarat\n\t\t      Public  Service  Commission  as  early  as  in\n\t\t      October, 1960. On account of commission having\n\t\t      raised  various  queries\tincluding   require-\n\t\t      ments  of adequate knowledge of  Marathi\t and\n\t\t      Gujarati,\t   the examination could not be held\n\t\t      during  the  years  1960-1962.\t The  expla-\n\t\t      nation given by the Government is prima  facie\n\t\t      good  and\t    not\t rebutted as got up.   Since\n\t\t      the  Government  took active  steps   in\t the\n\t\t      direction of direct  recruitment, the   excep-\n\t\t      tion to the  Government Resolution comes\tinto\n\t\t      operation.  The Government in the present case\n\t\t      did all that it could. [1051 A-F]\n\t\t      3. Quota is not inter-locked with Rota.  [1052\n\t\t      A]\n\t\t      (a) The quota system does not necessitate\t the\n\t\t      adoption of the  rotational rule in  practical\n\t\t      application.    Many  ways  of  working\t out\n\t\t      'quota'  prescription can be devised of  which\n\t\t      rota is certainly one.\n\t\t      (b) While laying down a quota when filling  up\n\t\t      vacancies\t in  a\t cadre from  more  than\t one\n\t\t      source,  it is open to Government. subject  to\n\t\t      tests  under  Art. 16, to choose 'a  year'  or\n\t\t      other   period   of  the\tvacancy\t by  vacancy\n\t\t      basis to work out the quota among the sources.\n\t\t      But once the Court is satisfied, examining for\n\t\t      constitutionality\t the method  proposed,\tthat\n\t\t      there   is  no   invalidity,    administrative\n\t\t      technology may have free play in choosing\t one\n\t\t      or other\tof  the familiar processes of imple-\n\t\t      menting the quota rule.  We, as Judges, cannot\n\t\t      strike  down the particular scheme because  it\n\t\t      is unpalatable to forensic taste.\n\t\t      (c) Seniority, normally, is measured by length\n\t\t      of continuous. officiating service--the actual\n\t\t      is  easily accepted as the legal.\t  This\tdoes\n\t\t      not preclude a different prescription, consti-\n\t\t      tutionality tests\t being satisfied.\n\t\t      (d)   Promotees  regularly  appointed   during\n\t\t      period  1960-62 in excess of their quota,\t for\n\t\t      want of direct recruits can claim their  whole\n\t\t      length of service for seniority.\n\t\t      (e) Promotees appointed in 1963 and onwards in\n\t\t      excess  of their quota should be\tpushed\tdown\n\t\t      and  absorbed  in\t vacancies  in\ttheir  quota\n\t\t      during subsequent years. [1057 E-H, 1058 A-C]\n\t1039\n\t    Mervyn  Coutindo & Ors. v. Collector of Customs,  Bombay<\/a>\n\t[1967]\t3 S.C.R. distinguished, Badami v. Stale of Mysore  &\n\tOrs.  [1976]  1 S.C.R. 815  distinguished,  Govind  Dattaray\n\tKelkar and Ors. v. Chief Controller of Imports and Exports &\n\tOrs.<\/a> [1967] 2 S.C.R. 29 distinguished and doubted.\n\t       S.G.  Jaisinghani v. Union of India [1967]  2  S.C.R.\n\t703 distinguished.\n\t    Bishan Sarup Gupta v. Union of India [1975] Supp. S.C.R.\n\t491,  Union  of India v. Bishan Sarup Gupta<\/a> [1975] 1  S.C.R.\n\t104  and  A.K. Subbraman & Ors. v. Union of India  [1975]  2\n\tS.C.R. followed.\n\t    The\t Court\tdirected the Government to draw\t up  expedi-\n\ttiously a fresh seniority list in the light of the  observa-\n\ttions made in the Judgment. [1058 H]\n\t    Obiter:  (Lengthy  legal process,  where  administrative\n\timmediacy  is  the desideratum is a remedy  worse  than\t the\n\tmalady.\t  The fact that the present case has taken around  5\n\tworking days for oral arguments is a sad commentarY on\t the\n\tlegal system.  To streamline and to modernise Court  manage-\n\tment is a cinderella subject in India, as elsewhere. We\t too\n\thave miles to go for law and justice to meet).\n\n\n\nJUDGMENT:\n<\/pre>\n
\tCIVIL APPELLATE JURISDICTION: Civil Appeal No. 463\/76.
\n\t    (Appeal  by Special Leave from the Judgment\t and   Order
\n\tdated 11\/12-11-1975 of the Gujarat High Court in L.P.A.\t No.
\n\t113\/74).\n<\/p>\n
\t    D.V.  Patel, P.H. Parekh and Miss Manju Jetley  for\t the
\n\tAppellants.\n<\/p>\n
\t    M.C.  Bhandare,  S.P. Nayar and M.N. Shroff,  for\tthe,
\n\tState of Gujarat.\n<\/p>\n
\t    R. K, Garg and S.C. Agarwala, for Respondents  Nos.\t 5-6
\n\tand 8–11.\n<\/p>\n
\t      M.N. Shroff, for the State of Maharashtra.
\n\t       The Judgment of the Court was delivered by
\n\t    KRISHNA IYER, J.–This is a typical ‘service’ appeal, by
\n\tspecial\t leave, which prompts the topical question:  Is\t lit
\n\tWiser national policy to process disputes regarding seniori-
\n\tty, promotion, termination and allied matters affecting\t the
\n\tpublic\tservices,  through  the\t docket-bound,\t formalised,
\n\tmethodology  of\t the judicature adopting  its\ttraditional,
\n\ttime-consuming,\t tier-upon-tier\t system and  handicapped  by
\n\tabsence of administrative expertise, accessibility to criti-
\n\tcal information and other limitations on the mode and extent
\n\tof  relief, or, alternatively, through\tbuilt-in,  high-pow-
\n\tered,  but  credibility-wise less  commanding,\tagencies  of
\n\tcomposite skills and processes and flexible remedial  juris-
\n\tdictions  ? ‘Justice and Reform’ is a  recurrent  interroga-
\n\ttion.\n<\/p>\n
\t    Our\t civil services, if only the static  and  stratified
\n\tsystem\t were transformed and the men properly oriented\t and
\n\tactivated, may well prove equal to the dynamic challenges of
\n\tour  times  but for the pathetic phenomenon  of\t numbers  of
\n\tofficials  being  locked  in long  forensic  battles.\tThis
\n\tlitigative  pathology of the members of the public  services
\n\tdeplorably diverts the undivided energies, sensitive  under-
\n\tstanding  and people-based disposition demanded of them\t for
\n\tthe  fulfilment of the Nation’s Tryst with  Destiny  through
\n\timplementation of massive
\n\t1040<\/span>
\n\tand multiform developmental plans.  Hopefully,\tconstructive
\n\tthinking on impregnable, competent and quick-acting (but not
\n\tderobed\t or  devalued) intra-structures and  procedures\t for
\n\timproving  and\taccelerating the system of  justice  to\t the
\n\tpublic services is currently under way.\n<\/p>\n
\t    Now to the merits.\tThe briefs are big and the arguments
\n\tlong,  but the factual matrix and the legal  conflicts\tlend
\n\tthemselves to be condensed without detriment.  The  competi-
\n\ttion between two categories of members borne on the cadre of
\n\tDeputy\tCollectors  of\tthe State of  Gujarat  viz.,  direct
\n\trecruits and in-service promotees, on the issue of seniority
\n\tinter-se,  with\t its  futuristic career\t overtones,  is\t the
\n\tcrunch\tquestion  in this civil appeal.\t The  grey  area  of
\n\t‘service jurisprudence’ covered before us encompasses sever-
\n\tal  decisions  and if ‘by  good disputing shall the  law  be
\n\twell  known’, there has been so much disputation of  learned
\n\tlength\tat  the bar that the legal points should  have\tbeen
\n\tmore pellucid than the precedents read and re-read made\t  us
\n\tfeel.  ‘The aid of the purifying ordeal of skilled argument’
\n\twhen too lapidary and finical reaches a point of no  return,
\n\tdespite\t Megarry  J  to the contrary in\t Cordell  v.  Second
\n\tClanfield Properties Lid. (1).\n<\/p>\n
\t    Seven Deputy Collectors, arriving by direct\t recruitment
\n\tin,  and  after 1963, claim to be ahead,  in  the  gradation
\n\tlist, of their more numerous counterparts former mamlatdars,
\n\twhose  promotional  incarnation as Deputy Collectors,  dates
\n\tback to the years 1960-63. The title of these younger incum-
\n\tbents to be eider in the Civil List  is primarily founded on
\n\ta basic Resolution of Government of July 30, 1959 regulating
\n\trecruitment  to\t the Deputy Collectors’ cadre by  the  ‘then
\n\tBombay\tState  adopting a quota basis.\tThe  Gujarat  State,
\n\tcarved\tout of Bombay and formed on May 1,  1960,  continued
\n\tthe  system; and so, simplistically presented, the  fate  of
\n\tthe  ‘seniority’ struggle critically turns on the  construc-
\n\ttion the Bombay Resolution of 1959 bears, the rival versions
\n\thaving\tbeen  alternately frowned upon or  favoured  at\t the
\n\toriginal and appellate docks of the High  Court.  There\t are
\n\tother matters of moment debated at the bar and we will\tpass
\n\ton  some  of them at later stages.   In\t administrative\t and
\n\tlegal  terms,  this  case is the projection  of\t the  common
\n\trivalry\t for  promotional  positions  between  fresh,  young
\n\trecruits and old, seasoned promotees, between alleged excel-
\n\tlence  of talented youth and tasted experience of   mellowed
\n\tage.   Sympathies  may\tsway either way\t and  reasons  often
\n\tspring from sympathies.\n<\/p>\n
\t    To be captiously wise in retrospect may itself border on
\n\tvice.  Even  so,  we are constrained to\t observe  that\twhen
\n\tgovernment  orders,   as here, have the flavour of  law\t and
\n\timpact\tupon the fundamental rights and equal  opportunities
\n\tof  citizens,  they have to be drafted with  the  case\tthat
\n\tlegal  orders\tdeserves lest  avoidable  litigation  should
\n\tthrive for no better reason than that administrative  orders
\n\tor subsidiary legislation have been drawn up with a  casual-
\n\tness  that betrays the skills of insoucience.  Law  must  be
\n\tprecise, simple, clear, comprehensive and
\n\t(1) [1968] 3 All E.R. Ch. Dn. 746.\n<\/p>\n
\t1041<\/span><\/p>\n
\tthere  is  a  duty on the law-maker at every  level  not  to
\n\tinjure\tthe community by tengled webs of rules,\t orders\t and
\n\tnotifications  whose meaning is revealed only through  tran-
\n\tscendental meditation or constant litigation.  in a  social-
\n\tistic pattern of society there is hardly any part of nation-
\n\tal life or personal life which is not affected by some legal
\n\trule  or other.\t When men have to look to the law  from\t the
\n\tcradle to the grave, making of even subsidiary laws  demands
\n\tgreatest attention.\n<\/p>\n
\t    To begin with the legal beginning is best done with\t the
\n\tBombay\tGovernment Resolution of 1959 after giving a  thumb-
\n\tnail  sketch  of the relevant service  structure  and  other
\n\tminimal particulars.\n<\/p>\n
\t    The\t composite  Bombay State, for  purposes\t of  Revenue
\n\tAdministration,\t had been divided into Divisions which\twere
\n\tseparate  units\t for  promotional  prospects,  liability  to
\n\ttransfer  etc., of deputy collectors. The routine source  of
\n\trecruitment  to these posts used to be mamlatdars  who\twere
\n\ttransferred as deputy collectors by promotion.\tAs early  as
\n\t1939,  a different recruitment policy had been\tevolved\t for
\n\tpicking suitable hands from the open market by direct  nomi-
\n\tnation.\t   The\tinevitable  concomitant of  a  plurality  of
\n\trecruitment categories is  the evolution of a workable\trule
\n\tof inter se seniority.\tSo, by an order of 1941, the mode of
\n\tdetermining seniority between ‘nominees’ and ‘promotees’ was
\n\tsettled.  Service, for seniority purposes, so far  as direct
\n\trecruits  were concerned, was to run from the date of  their
\n\tappointment on probation and, in the case of promotee  offi-
\n\tcers,  such service was to begin with promotion in  substan-
\n\ttive  vacancies,  if continued without break.\tFor  reasons
\n\tobscure, the direct recruitment scheme of infusion of  fresh
\n\tblood-to  use  the usual  validating  vascular\tmetaphor–to
\n\tinvigorate  the Administration, hibernated from\t 1950  until
\n\t1959.  However, the crucial government decision of July\t 30,
\n\t1959 not merely re-activated the mode of direct\t recruitment
\n\tbut  fixed  the promotion in which recruitment from the\t two
\n\tsources\t was  to be  made, referred to conveniently  as\t the
\n\tquota system.  The heart of the\t debate before us is whether
\n\ta  quota  prescription, willy nilly,   does   postulate\t ex-
\n\tnecessitate  a rota process in practice.  We may  here\tread
\n\tthe resolution itself:\n<\/p>\n
\t\t\t\t\t Deputy Collector:<\/p>\n
\t\t\t\t  Recruitment of probationers
\n\t\t\tGOVERNMENT OF BOMBAY
\n\t\t\tREVENUE DEPARTMENT
\n\t\t   Resolution No. RTC. 1157\/99153-D
\n\t\t   Sachivalaya, Bombay, 30th July 1959
\n\tRead-Government Resolution-No. 9313\/45, dated the 6th Febru-
\n\tary 1950.\n<\/p>\n
\t  Government  Resolution  No. 9313\/45, dated the  24th\tJuly
\n\t1951.\n<\/p>\n
\t1042<\/span><\/p>\n
\tRESOLUTION:\n<\/p>\n
\t    Government\thad  for sometime  under  consideration\t the
\n\tquestion of reviving the system of direct recruitment to the
\n\tcadre of Deputy Collectors.  It has now been decided that in
\n\tthe interest of administration, the revival of .that  system
\n\tis  quite necessary.  Government  is accordingly pleased  to
\n\tcancel\tthe  orders contained in Government  Resolution\t No.
\n\t9313\/45,  dated\t 6th February 1950 and those  in  Government
\n\tResolution No. 9313\/45, dated the 24th July 1951, in so\t far
\n\tas  they relate to the recruitment of Bombay  Civil  Service
\n\tExecutive  Branch Deputy Collectors (Upper Division) and  to
\n\tdirect\tthat,  as  far as practicable, 50 per  cent  of\t the
\n\tsubstantive  vacancies occurring in the\t cadre\twith  effect
\n\tfrom  1st January 1959 should be filled in by nomination  of
\n\tcandidates  to\tbe selected in accordance  with\t  the  Rules
\n\tappended herewith.\n<\/p>\n
\t\t  x\t   x\t   x\t  x\t x
\n\tBy order and in\t the name of the Governor of Bombay,
\n\t\t\t\t\t\t  G.L. Sheth
\n\t\t\t\t       Secretary to Government”\n<\/p>\n
\t    We may also extract the portion from the’ annexed  rules
\n\tof recruitment pertinent to our purpose:\n<\/p>\n
\t\t\t    “Appointment  to  the  posts  of  Deputy
\n\t\t      Collector\t shall be made either by  nomination
\n\t\t      or by  promotion of  suitable
\n\t\t      Mamlatdars:\n<\/p><\/blockquote>\n
\t\t\t    Provided  that the ratio of\t appointment
\n\t\t      by  nomination and by promotion shall, as\t far
\n\t\t      as practicable, be 50: 50.”\n<\/p><\/blockquote>\n
\tThe  raw  materials government proceedings  needed  for\t our
\n\tdiscussion will be complete if the 1941 Resolution also were
\n\tread at this stage:\n<\/p>\n
\t\t       “GOVERNMENT OF BOMBAY
\n\t\t       Political & Services Department
\n\t\t       Resolution No. 3283\/34
\n\t\t       Bombay Castle, 21st November, 1941.\n<\/p><\/blockquote>\n
\tx\t\t x\t\t  x\n\tRESOLUTION:\n<\/pre>\n
\t    Government\tis pleased to direct  that   the   following
\n\tprinciples  should be observed in determining the  seniority
\n\tof  direct recruits and promoted Officers in the  provincial
\n\tservices  (except  the\tBombay services of Engineers,  Class
\n\tI)\n<\/p><\/blockquote>\n
\t\t      (i)  In the case of direct recruits  appointed
\n\t\t      substantively  on\t probation,  the   seniority
\n\t\t      should   be  determined with reference to\t the
\n\t\t      date of their appointment on probation.\n<\/p><\/blockquote>\n
\t\t      (ii)  In the case of  officers   promoted\t  to
\n\t\t      substantive vacancies, the seniority should be
\n\t\t      determined with reference to the (1 ) Date  of
\n\t\t      their promotion to the (2) substantive  vacan-
\n\t\t      cies (3) provided there has
\n\t\t      1043<\/span>
\n\t\t      been  no break in service prior to their\tcon-
\n\t\t      firmation in those vacancies.\n<\/p><\/blockquote>\n
\tBy order and in the name of the Governor of Bombay
\n\t\t\t\t\t\t G.F.S. Collins
\n\t\t\t Chief Secretary to the Govt. of Bombay
\n\t\t\t\tPolitical and Services Department”\n<\/p>\n
\t    Flowing out of the fixation of the ratio between the two
\n\tspecies\t of  recruits and having a bearing on the  issue  of
\n\tseniority  is  another Resolution of the  Bombay  Government
\n\t(continued  during  the relevant period in Gujarat  also  by
\n\tvirtue of an omnibus circular of May 1, 1960) of February 3,
\n\t1960.\tThis step became primarily necessary on\t account  of
\n\tthe Reorganisation of States and the abolition of Divisions.
\n\tThe legal fiction of ‘deemed dates of commencement of  serv-
\n\tice’  for  the purpose of inter se  seniority  of  personnel
\n\tdrawn from different pre-Reorganisation States and from\t the
\n\tDivisions  within  the\tState on conversion  of\t the  deputy
\n\tcollectors’  cadre into a State-wide one has  been  crystal-
\n\tlised in this rule of February 1960.\n<\/p>\n
\t    One\t more clarificatory proceeding of Government,  dated
\n\tMay  27, 1960 has loomed large in Shri Patel’s\tsubmissions,
\n\tespecially the Explanation portion thereof and, in a  sense,
\n\tit lends some push to the problematic conclusion.  We there-
\n\tfore read the relevant Government Circular right here:\n<\/p>\n
\t     No. GSF-1060-F
\n\t     Government of Gujarat
\n\t     General Administration Department
\n\t     Sachivalaya, Ahmedabad, 27th May 1960
\n\t\t       CIRCULAR
\n\tRead:  Government Circular No. GSF-1060, dated the  1st\t May
\n\t1960.\n<\/p><\/blockquote>\n
\t\t\t  Doubts  have\tarisen\tas   respects\t the
\n\t\t      directions   given under\tGovernment  Circular
\n\t\t      No.    GSF-1060\tdated\t the\t 1st\tMay,
\n\t\t      1960   ……   To remove any  doubt  in\tthat
\n\t\t      behalf,  therefore, Government is\t pleased  to
\n\t\t      direct that the following Explanation shall be
\n\t\t      and  shah be deemed always to have been  added
\n\t\t      to the said circular, namely–\n<\/p><\/blockquote>\n
\t\t\t  Explanation :–Nothing herein shall  apply
\n\t\t      to  appointments of officers,  authorities  or
\n\t\t      persons or to the constitution of tribunals or
\n\t\t      other  bodies which may be made by  Government
\n\t\t      on  or after the 1st May, 1960 and the  condi-
\n\t\t      tions of service of the officers,\t authorities
\n\t\t      or  persons  appointed or the members  of\t the
\n\t\t      Tribunals or bodies so constituted.\n<\/p><\/blockquote>\n
\tBy order and in the name of the Governor of Gujarat.\n<\/p>\n
\t\t\t\t\t      Sd\/- V. Isvaran
\n\t\t\t       Chief Secretary to the Government.”\n<\/p>\n
\t    Reliance has been placed on the Explanation quoted above
\n\tto  emancipate\tGovernment from compliance with\t the  Bombay
\n\trules
\n\t1044<\/span>
\n\tregarding  appointments of officers or their  conditions  of
\n\tservice,  an aspect we will expand, if needed.\tPrima facie,
\n\twhile  we agree that the new State is not bound by  adminis-
\n\ttrative\t directions of the parent State and may free  itself
\n\tfrom  it by appropriate steps, an unguided power is  suspect
\n\tand  a carte blanche in doing what Government  fancies\twith
\n\tany of its servants is subversive of ordered societies.\t  We
\n\thave  no further probe to make into this Resolution  in\t the
\n\tpresent case and leave it at that.\n<\/p>\n
\t    The\t fact  of  the matter is that  during  1959–62,  no
\n\tdirect\trecruitments  were  made but  many  promotions\twere
\n\teffected.   Afterwards,\t i.e.,\tin 1963\t and  later,  direct
\n\trecruits were appointed who, contrary to their legal aspira-
\n\ttion, were not assigned seniority over earlier promotees  of
\n\t1960–63 vintage, having regard to the factual position. The
\n\tfurther hope that for post-1963 recruits, dates of  appoint-
\n\tment,  and running of service with effect therefrom, on\t the
\n\tbasis of a quota allocation and rota system telescoped\tinto
\n\tit,  proved a plain dupe in the seniority list\tprepared  by
\n\tgovernment.  The doubly chagrined direct recruits moved\t the
\n\tHigh Court for relief, as stated earlier.\n<\/p>\n
\t    The anatomy, in outline, of the deputy collector’s cadre
\n\tin   the Gujarat Government and the grievances of the  writ-
\n\tpetitioners (respondents before us) thus emerge.  On a 50:50
\n\tbasis the vacancies in the cadre are filled from two sources
\n\tviz.,  direct recruitment and promotion from  among  mamlat-
\n\tdars.\tOnce appointed, their seniority gains  saliency\t and
\n\tturns on length of service, and though no specific provision
\n\tto count commencement of service is made in the 1959 Resolu-
\n\ttion, it has been understood as set out in the 1941  Resolu-
\n\ttion  earlier mentioned.  The contesting  respondents  plead
\n\tfor  pushing  down  promotees, based on\t the  strict  roster
\n\tsystem of 1: 1 going by each vacancy and demur to taking the
\n\tyear as a unit for adjustment  of ratio.  Which view  should
\n\tprevail?  Force, there may be, in the rival versions,  indi-
\n\tvidual\tinjustice there can be whichever view were  accepted
\n\tand  precedential pushes and pressures may also\t be  brought
\n\tinto  play  by\teither side if we  surrender  to  scriptural
\n\tliterality of decisions of this Court and miss the thrust of
\n\tthe ratio therein. In a liner sense, and within the frame of
\n\treference of leading precedents, each case has an  individu-
\n\tality and is a law unto itself.\n<\/p>\n
\t     Strictly  speaking, the primary problem is one of\tfair
\n\tinterpretation\tof the basic government Resolution of  1959,
\n\tillumined by the purposes and motivations of good government
\n\tand unravelling\t the implications embedded therein,  against
\n\tthe  background\t of the\t administrative\t structure,  service
\n\tpattern and  seniority\tprinciples,  prevalent contemporane-
\n\tously, as gleaned from the records of the case.\t  The milieu
\n\taids  the meaning although lawyer’s law leans heavily,\teven
\n\tlop-sidedly, on judicialized lexicography.  Counsel natural-
\n\tly took us through rulings bearing on the meanings of  words
\n\tand  canons  of construction which  merely  re-stated  time-
\n\thonoured principles and dictionary culls and did not make us
\n\tany  the  wiser\t in coming nearer to  a\t resolution  of\t the
\n\tconflict  here.\t Likewise, arguments galore on the  connota-
\n\ttion of the quota system of recruitment, with  abstractions,
\n\tpropositions and illustrations based on decided cases,\twere
\n\taddressed  to us, although we ‘came out by the same door  as
\n\tin we went’  Common-\n<\/p>\n
\t1045<\/span><\/p>\n
\tsense  is the first aid in the art of  interpretation.\t The
\n\tonly  sure  approach  that judges make\twhen  confronted  by
\n\tcomplexity in construction and necessity for rationalisation
\n\tis on the lines justice Cardozo frankly stated :(1)
\n\t      “We may figure the task of the judge, if we please, as
\n\tthe  task of a translator, the reading of signs and  symbols
\n\tgiven  from without.  None the less, we will not set man  to
\n\tsuch a task, unless they have absorbed the spirit, and\thave
\n\tfilled\tthemselves  with a love, of the language  they\tmust
\n\tread.”\n<\/p>\n
\tTwo groups, the promotees who came from the lesser  stations
\n\tof  life and the direct recruits who have had better  advan-
\n\ttages  of higher education, fight for berths in the  musical
\n\tchair.\t In  such situations, while construing\trules,\tsub-
\n\tconscious  forces  have to be excluded\tand  objectification
\n\tmust  be  attempted.  Even so, the  beautiful\tcandour\t  of
\n\tBenjamin Cardozo whispers to us that we judges
\n\t       “are … ever and always listening to the still small
\n\tvoice of the herd, and are ever ready to defend and  justify
\n\tits instructions and warnings, and accept them as the nature
\n\tresults\t of  our own reasoning.\t This was  written,  not  of
\n\tjudges specially, but of men and women of all classes.\t The
\n\ttraining of the judge,\tif coupled with what is\t styled\t the
\n\tjudicial temperament, will help in some degree to emancipate
\n\thim  from  the suggestive power of individual  dislikes\t and
\n\tprepossessions .” ( 2 )
\n\t  Our  effort in unlocking the meaning of the  controversial
\n\tGovernment  Resolution\tof July 1959 and of  other  official
\n\tnotifications may inarticulately, minimally and unwittingly,
\n\tbe  moulded  by these broad   under-currents.\tOther  facts
\n\trelevant for discussion of specific points   urged and other
\n\tlegal  issues germane to the grounds of attack\tand  defense
\n\tformulated  by\tcounsel may be filled in as and\t when  those
\n\tpoints\tare taken up by us, instead of inartistically  clut-
\n\ttering\tup or en massee\t  lugging together  many  government
\n\tproceedings,  sequences\t of events    and  clarification  of
\n\tdifficulties  following\t on  the  division  of\tBombay\tinto
\n\tGujarat and Maharashtra, even at this preliminary stage.\n<\/p>\n
\t     The  pivotal questions–one an interpretative  exercise
\n\tand  the   other a facet of the fundamental right  of  equal
\n\topportunity–around  which revolve the other  arguments\t may
\n\tfirst be set out: (1) If  the Gujarat Government has, by  an
\n\tadministrative\tguideline  or statutory rule  directed\tthat
\n\topen  market recruits and in-service promotees will  be\t ap-
\n\tpointed\t on a 50: 50 basis with the qualification that\tthis
\n\tprinciple  shall  be adhered to, as far as  practicable,  is
\n\tGovernment  free to ignore such a rule of conduct as  if  it
\n\twere  no  inflexible directive, violation  of  which  spells
\n\tillegality  on\tthe appointments made, or does\tthis  clause
\n\tobligate the State flatly to try and comply, but if surprise
\n\tcircumstances or insurmountable exigencies arise which\tmake
\n\trecourse to the rule impracticable, deviate from it  without
\n\tthe risk  of  court branding such deviant appointments void?
\n\tIn short, how far can
\n\t  (1) Benjamin N. Cardozo: The Nature of the Judicial  Proc-
\n\tess: Yale University Press, P. 174.\n<\/p>\n
\t(2) Cardozo (supra) pP. 175-176.\n<\/p>\n
\t1046<\/span><\/p>\n
\tadministrative\tpragmatics influence, without  invalidation,
\n\tthe  recruitment  mechanics where a narrow  rider  providing
\n\tfor  imponderable exigencies written into the rule, provides
\n\tfor  departure ?  (2) Assuming there has to be a  proportion
\n\tof 50-50 as above indicated, how is it to be worked out ? On
\n\ta rotational basis of the direct recruits inexorably getting
\n\tthe  first, the third, the fifth and such like vacancies  or
\n\tas  an\tentitlement to half the total  number  of  vacancies
\n\tarising in  the cadre in a particular year or other  conven-
\n\ttional\tperiod ? Again, does it further imply an  imperative
\n\tobligation  on the part of Government to keep  untilled\t all
\n\tvacancies  allocable to direct recruits so that they may  be
\n\tavailable  to be filled up in later years  with\t retroactive
\n\trepercussions and, if such ear-marked posts are, for  admin-
\n\tistrative exigencies, filled regularly, not ad hoc, in\tsub-
\n\tstantive  vacancies, not  ex  cadre posts by  selection\t and
\n\tpromotion,  they must be treated as  provisional  nationally
\n\tfilled\tby direct recruits who may arrive long\tlater?\t And
\n\tconsequentially, in counting seniority, reckon their  (i.e.,
\n\tdirect\trecruits)  deemed dates of entry as prior  to  those
\n\tactually officiating promotee deputy collectors by importing
\n\ta  sort\t of legal fiction that the direct recruits  must  be
\n\tallowed\t to  count service from the date when  the  entitled
\n\tvacancy\t for  direct recruits arose?  May  be  a  diffusive,
\n\tdigressive  discussion can be obviated and the focus  turned
\n\ton  specific  issues if we start with a formulation  of\t the
\n\tmajor  points  urged  by Sri D. V. Patel,  counsel  for\t the
\n\tappellant, hotly controverted, of course, by shri R.K.\tGarg
\n\tfor  the contesting respondents.  Elimination of  the  minor
\n\tclears the ring for the major bouts.\n<\/p>\n
\t    The\t appellants represent the group of  promotee  deputy
\n\tcollectors  and the contestants are deputy   collectors\t di-
\n\trectly\t recruited.   The Gujarat State lines  up  with\t the
\n\tformer, more or less.\n<\/p>\n
\t    We now set out sequentially the six-point  propositional
\n\tformulation made by Shri Patel, for the appellants, although
\n\tsalience  suggests  the\t third item as\tfirst–and,  if\t .we
\n\tanticipate our conclusion, the last in importance.
\n\t    The\t cornerstone of the case, as noted earlier,  is\t the
\n\tBombay Government’s Resolution of 1959 fixing the proportion
\n\tbetween\t direct\t recruits and promoted candidates,  with  an
\n\temergency escape route to jump out of the fixed ratio.\tShri
\n\tPatel’s\t first point is that once the new State\t of  Gujarat
\n\twas  formed,  mere administration proceedings of  he  former
\n\tgovernment  of\tBombay State ceased to be in  force  proprio
\n\tvigore\tunless\tGujarat adopted or  continued  or  otherwise
\n\tmodified them. subject to statutory regulations and  consti-
\n\ttutional  limitations.\t The State of  Gujarat\thad  plenary
\n\texecutive  power,  granted by the Constitution, to  fill  up
\n\tadministrative posts in any manner it chose.   The  clarifi-
\n\tcatory government Resolution of May 27, 1960 issued by\t the
\n\tGujarat Government becomes significant in this context as it
\n\tcontains in explanation which specifically provides that the
\n\tadoption  of  the Bombay Government Resolution of 1959\tdoes
\n\tnot,  in  any way, fetter the Gujarat Government  in  making
\n\tappointments  of officers on  or after May 1, 1960 nor\tdoes
\n\tthe  said 1959 Resolution in any manner restrict the  condi-
\n\ttions  of service of such officers.  Therefore, it  is\tper-
\n\tfectly oven to the Gujarat Government to make fresh appoint-
\n\tments to the posts of Deputy Collectors untremmelled by\t the
\n\tratio or other
\n\t1047<\/span>
\n\trestrictive  conditions\t which may be read into\t the  Bombay
\n\tGovernment  Resolution\tof 1959.  In this view\this  clients
\n\tcannot\tsuffer\teven  if  the  Bombay  Resolution  has\tbeen
\n\tbreached.  (2) Assuming that point No. 1 has no force,\tShri
\n\tPatel submits that the various government Resolutions of the
\n\tBombay and Gujarat Governments referred to by\tthe  parties
\n\tare  purely  administrative directions and cannot  have\t the
\n\tbinding status of statutory rules.  Therefore, no rights can
\n\tbe  derived  therefrom by the direct recruits  or  potential
\n\tdirect\tappointees  and breach of such directives  or  rules
\n\tcannot\tinvalidate appointments made.\t(3) On\tthe  further
\n\tassumption  that point no. (2) above is bereft of  substance
\n\tand  the Government Resolutions referred to  have  statutory
\n\tcharacter, the very terms of the 1959 Government  Resolution
\n\tprovide a sensible safely value, wisely anticipatory when we
\n\tremember  the  pragmatic considerations\t and  administrative
\n\texigencies that the slow-moving apparatus of the  Government
\n\tof a newly formed State has to face or be puzzled with.\t The
\n\t1959  Resolution  which is the ’rounding  document’  of\t the
\n\trights of the direct recruits itself states that the propor-
\n\ttion between the two categories is to be applied ‘as far  as
\n\tpracticable’. Therefore, the rule is neither exception-proof
\n\tnor abstractly absolute\t but realistic and flexible true  to
\n\tlife.\tRigidly\t to read the rule is surely to\tmisread\t it.
\n\tSince it contemplates special situations of impracticability
\n\tit is but right for the Court so to construe the Resolution,
\n\tin  the\t light of the explanation offered by the  State\t for
\n\tnon-recruitment directly until 1963, as to make it  adminis-
\n\ttratively viable and reasonably workable If such an imagina-
\n\ttive and informed judicial insight plays upon  the rule, the
\n\tdifficulties in making immediate recruitments from the\topen
\n\tmarket\tby  the Public Service Commission  may\tsufficiently
\n\tabsolve the State from the supposed violation of  Government
\n\tResolution of 1959 So viewed, the orders of promotion of the
\n\tappellants  are in order and unassailable.  (4) &  (5)\t The
\n\tmandate\t of  equality  ensconced in Arts 14  and  16  cannot
\n\thandcuff  justice by pushing down the promotees if the\tSen-
\n\tiority\tList in the face of their actual service  and  legal
\n\tappointment.   The attack based on Art. 16 that\t the  roster
\n\tmethod\tof filling up posts is integral to the quota  system
\n\tis  baseless.  Quota without rotate is also  reasonable\t and
\n\tconstitutional as much as quota plus rota. The choice,\tboth
\n\tbeing  permissible and fair, is left to the  Administration,
\n\tthe  Court  not ferretting or dissecting  to  detect  deadly
\n\ttraces\tof  discrimination  or\tunreasonableness.   (6)\t The
\n\tassignment  of “deemed dates’ of commencement of service  is
\n\tnot  unreasonable but is often adopted by  Governments\twhen
\n\tintegrating into a common cadre officers  drawn from differ-
\n\tent  States or Departments or divisions.  Novel\t compulsions
\n\tdemand\tnovel  solutions and law accepts  life’s  expediency
\n\tsave where the public Vower has been obliquely exercised  or
\n\tunreasonableness  is writ large on the face of the  process.
\n\tSuch  a\t stigma being absent, the promotees cannot  be\tdis-
\n\tlodged from their notches in the ladder.\n<\/p>\n
\t    We are mercifully absolved from making the\tdiscussional
\n\tjourney over a long mileage covering the poly-pointed formu-
\n\tlation since two essential issues may virtually be  decisive
\n\tof  the case.  Both sides have agreed to  this\tabbreviation
\n\tand the other grounds have dropped out of effective  contest
\n\tin the long course of arguments.  Enough upto the day!
\n\t1048<\/span>
\n\t     It\t is  fair to state even at this stage  that  be\t the
\n\tBombay G.O. of 1959 merely administrative or really statuto-
\n\try,  both  the learned Single Judge and the  Division  Bench
\n\thave head the Gujarat State bound by it.  The rule of law is
\n\ttile  enemy  of arbitrary absolutism and the  discretion  to
\n\tdisobey is a doctrine of despotism and cannot be  subscribed
\n\tto  by a Court merely because the state chooses to  label  a
\n\trule or conduct anecting the rights of others an administra-
\n\ttive regulation.  In a constitutional order governed by\t the
\n\trule  of law, whim or humour, even  if\tbenignly  motivated,
\n\tmasquerading  as  executive discretion is anathema  to\tlaw.
\n\tWhen power is vested under the Constitution or other statute
\n\tin the State to promulgate rules of conduct attracting\toth-
\n\ters, such rules must ordinarily govern the State and subject
\n\talike.\t When there are service rules affecting\t the  public
\n\tservices,  they may either be  in exercise of the  executive
\n\tpower of the State under Art. 162 or rules with\t legislative
\n\tcolour framed under the proviso to Art. 309 of the Constitu-
\n\ttion.\tIt  is fair for the Administration in  a  democratic
\n\tsystem\temploying expanding armies of  government  servants,
\n\twhose  lot in life and career prospects will be governed  by
\n\trecruitment,  conduct  and disciplinary rules,\tto  respect,
\n\tbeyond\tsuspicion, the rule of law by  exercising  statutory
\n\tpower  as distinguished from executive power, even where  it
\n\thas  an\t option.  Of course, in exceptional  situations,  or
\n\tsudden\texigencies and for new experiments to be tried,\t the
\n\tframing\t of statutory rules under Art. 309, proviso, may  be
\n\tpostponed and executive orders immediately promulgated.\t The
\n\tbest  judge  is the State Government  exercising  its  power
\n\tjustly and efficiently.\t For the art of government is  beset
\n\twith  the  perils  of a journey through\t life’s\t jungle\t and
\n\ttextbook  prescriptions can prove ruinous.  We may point  to
\n\tanother\t problem.  It has often been difficult\tto  discover
\n\twhether a particular set of rules is framed under the provi-
\n\tso to Art. 309 or, in mere exercise of Art. 162, although it
\n\tis   desirable\tthat the State makes it explicit.   We\tare,
\n\thowever,  not  called upon  to investigate  this  perplexing
\n\taspect\t because,  as stated  earlier,\tthe High  Court\t has
\n\theld  that  the State is bound by the Bombay G.O.  of  1959.
\n\tCounsel for the appellants, Shri Patel, and counsel for\t the
\n\tState,\tShri Bhandare, have rightly acquiesed in that  posi-
\n\ttion   and proceeded with their arguments on  that  footing.
\n\tThis point (which is the first) therefore, does not need our
\n\tpronouncement.\n<\/p>\n
\t    The\t other points, pedentically capable of\tbeing  sepa-
\n\trately dealt with, highlight what we have earlier  indicated
\n\tas the two telling questions of law that settle the  outcome
\n\tof  the appeal.\t We will seek the tight of common  sense  to
\n\tsolve them and later test the conclusions with reference  to
\n\tbinding rulings of this Court.\n<\/p>\n
\t  The  first question that falls for considerations,  there-
\n\tfore, is as  to\t  whether the 50:50 ratio ‘as between direct
\n\trecruits and promoted  hands is subject to the saving clause
\n\t‘as  far  as practicable’. Can Government vary the  ratio  ?
\n\tOrdinarily  no.\t   Is it permissible at all  ?\t   Probably,
\n\tyes,  given proof of the government’s case that it was\t not
\n\tpracticable  for the State to recruit from the\topen  market
\n\tqualified  persons  through the specialised  agency  of\t the
\n\tPublic\tService Commission. The factual basis for this\tplea
\n\tof extenuation will be examined presently but, according  to
\n\tShri R.K. Garg, appearing for the contestants,
\n\t1049<\/span>
\n\teven  if the alibi of the State were true, it  furnished  no
\n\tlegal  justification for deviation from the  application  of
\n\tthe rule.  He interpreted, ‘as far as practicable’ occurring
\n\tin  the Government Resolution, in  a very different way\t and
\n\tsubmitted that to adopt the appellant’s view on this  aspect
\n\twas  to subvert the substance and nullify the conscience  of
\n\tthe binding Bombay Resolution of 1959.\n<\/p>\n
\t    Shri Garg argued that the language of the critical\tG.O.
\n\twas  peremptory,  that\tfor the high  purpose  of  improving
\n\tadministrative\tefficiency a balanced mix of old  experience
\n\t(gained\t by  long service) and young  abilities\t (proved  by
\n\tcompetitive  selection) was hit upon as\t half-and-half\tfrom
\n\teach category and the Court could not fall for any construc-
\n\ttion of the words ‘as far as practicable’ which would  frus-
\n\ttrate  this goal of overall efficiency unless  the  semantic
\n\tsearch\tleft   no  other option.  Far from  there  being  no
\n\talternative  interpretation,  the benignant purpose  of\t the
\n\tResolution pressed forward to a reasonable meaning that\t ‘as
\n\tfar  as practicable’ related not to the tampering  with\t the
\n\tproportion  of the mix but in permitting provisional  varia-
\n\ttions or ad hoc solutions or emergency arrangements to\tmeet
\n\ta difficulty of\t the Administration without making formal or
\n\tregular\t ‘appointments’\t to the posts  meddling\t irrevocably
\n\twith the proportion in the prescription. Later, when  direct
\n\trecruits  were\tsecured, they would be\tentitled   to  their
\n\tquota vacancies and commencement of seniority from the\tdate
\n\tof their appointment.\n<\/p>\n
\t    Logomachic\texercises are the favourite of the  forensic
\n\tsystem but too barren to fascinate the Court and too luxuri-
\n\tous,  in  our penury of time to indulge.   Should  we  chase
\n\tdecisions  and\tdictionaries and finer verbal  nuances\twith
\n\texplorative industry ?\tThe sense of the setting, the  ‘why’
\n\tthe  author whispers through his words and the warning\t‘not
\n\tthis.  not  this’ that the objective  understanding  of\t the
\n\ttotality  of  the socially relevant  scheme   instils–these
\n\tlight  up  the\tinterpretative track alone  the\t criss-cross
\n\twoods  of case-law and lexicons.  Led by that  lodestar,  we
\n\twill  eye the situation afresh.\t In doing so, we must  first
\n\tset down the meaning Shri Patel suggests, and Shri  Bhandare
\n\tsupports,  and\tthe manner in which these  appellants  claim
\n\tthat their appointments and seniority are sequestered by the
\n\tsaving words ‘as far as practicable’.\n<\/p>\n
\t    What  does\t‘as far as practicable’ or  like  expression
\n\tmean, in simple anglo-saxon ?  Practicable, feasible, possi-
\n\tble,  performable,  are\t more or  less\tinterchangeable.   A
\n\tskiagraph of the 1959 Resolution reveals that the revival of
\n\tthe direct recruitment, method was motivated by ‘the  inter-
\n\test of administration’–an overriding object which must cast
\n\tthe benefit of doubt if two meanings with equal\t persuasive-
\n\tness  contend.\t Secondly,  going by the text,\t50%  of\t the
\n\tsubstantive  vacancies\toccurring  in the  cadre  should  be
\n\tfilled\tin by selection in accordance With  appended  Rules.
\n\t‘As far as practicable’ finds a place in the Resolution\t and
\n\tthe Rule.  In the context what does it qualify ?  As far  as
\n\tpossible 50% ? That is to say, if 50% is not readily  forth-
\n\tcoming, then  less ?  Within  what period should be  imprac-
\n\tticabilitv  to felt ? What is the content  of  impracticabi-
\n\tlitv’ in the given  administrative ‘setting ?  Contrariwise,
\n\tcan you not contend that impracticability is
\n\t1050<\/span>
\n\tnot  a\tlicense\t to deviate, a discretion to  disobey  or  a
\n\tliberty with the ratio ?  Administrative tone is too  impor-
\n\ttant  to be neglected but if sufficient numbers to fill\t the
\n\tdirect recruits’ quota are not\t readily available, substan-
\n\ttive  vacancies\t may be left intact to be   filled  up\twhen
\n\tdirect\trecruits  are available.  Since\t the  exigencies  of
\n\tadministration\tcannot wait, expediency has a  limited\trole
\n\tthrough\t the  use  of the words\t ‘as  far  as  practicable’.
\n\tThereby Government is authorised to make ad hoc appointments
\n\tby  promotion or by creation of ex cadre posts to be  filled
\n\tup  by promotees, to be absorbed in the 50% portion  falling
\n\tto  the promotional category in later years.  In  short\t ‘as
\n\tfar  as\t practicable means, not interfering with  the  ratio
\n\twhich  fulfils the interest of administration, but  flexible
\n\tprovision  clothing government with powers to  meet  special
\n\tsituations where the normal process of the government  Reso-
\n\tlution\tcannot\tflow smooth.  It is a matter of\t accent\t and
\n\timport\twhich affords the final test in the  choice  between
\n\tthe two parallel interpretations.\n<\/p>\n
\t   We have given close thought to the competing\t contentions
\n\tand are inclined to the view that the former is the  better.
\n\tCertainly,   Shri Garg is right that the primary purpose  of
\n\tthe  quota system is to improve\t administrative\t efficiency.
\n\tAfter all, the Indian administration is run for the  service
\n\tof  the people and not for opportunities for promotion to  a
\n\tfew  persons.\tBut theories of\t public\t administration\t and
\n\texperiments  in achieving efficiency are matters of  govern-
\n\tmental\tpolicy\tand business  management.   Apparently,\t the
\n\tState,\thaving\tgiven due consideration\t to  these  factors,
\n\tthought\t that a blended brew would serve best.\tEven so,  it
\n\tcould  not ‘have been the intention of government to  create
\n\tartificial situations, import legal fictions and  complicate
\n\tthe  composition of the cadre by deviating from the  natural
\n\tcourse. The State probably intended to bring in fresh talent
\n\tto the\textent reasonably available but not at the sacrifice
\n\tof  sufficiency of hands at a given time nor at the cost  of
\n\tcreating a vacuum by keeping substantive vacancies  unfilled
\n\tfor  long.   The straight forward answer seems to us  to  be
\n\tthat  the State, in tune with the mandate of the rule,\tmust
\n\tmake serious effort to secure hands to fill half the  number
\n\tof vacancies from the open market.  If it does not  succeed,
\n\tdespite\t honest and serious effort, it qualifies for  depar-
\n\tture from the rule.  If it has become non-feasible,  imprac-
\n\tticable\t and procrastinatory to get the requisite  quota  of
\n\tdirect recruits, having done all that if could, it was\tfree
\n\tto  fill  the posts by promotion of suitable  hands  if\t the
\n\tfilling\t up of the vacancies was administratively  necessary
\n\tand  could  not wait. Impracticable cannot be  equated\twith
\n\t‘impossible’–nor with unplatable–and we cannot agree\twith
\n\tthe  learned judges of the High Court in  construing  it  as
\n\tcolossally  incapable of compliance.  The short\t test,there-
\n\tfore, is to find out whether the government, in the  present
\n\tcase, has made effective efforts, doing all that it reasona-
\n\tbly  can, to recruit from the open market necessary  numbers
\n\tof qualified hands.  We do not agree that the compulsion  of
\n\tthe  rule  goes to the extreme extent of  making  government
\n\tkeep the vacancies in the quota of the direct recruits\topen
\n\tand  to meet the urgent needs of administration by  creating
\n\tex-cadre posts or making ad hoc appointments or resorting to
\n\tother  out-of-the-way expedients.  The sense of the rule  is
\n\tthat  as  far as possible the quota system must be  kept  up
\n\tand, if not prac-\n<\/p>\n
\t1051<\/span><\/p>\n
\tticable, promotees in the place of direct recruits or direct
\n\trecruits in the place of promotees may be inducted  applying
\n\tthe  regular procedures, without suffering the seats to\t lie
\n\tindefinitely vacant..\n<\/p>\n
\t    The\t next question then is as to whether government\t has
\n\tsatisfied  the\tCourt that efforts had been made  to  secure
\n\tdirect\trecruits  and failure to secure such  hands  is\t the
\n\texplanation  for resort to. promotions of  mamlatdars.\t The
\n\treason\tfor delay in making appointments of direct  recruits
\n\tduring the year 1960, 1961 and 1962 has been set out by\t the
\n\tState before us.  It appears that a requisition for 12 posts
\n\tof deputy collectors was sent to the Gujarat Public  Service
\n\tCommission  on\tOctober 31, 1960 but the  Commission  raised
\n\tsome  linguistic queries ‘regarding the requirement of\tade-
\n\tquate  knowledge of Marathi and Gujarati by the\t candidates.
\n\tAnyway, various points were raised from time to time in\t the
\n\tcorrespondence\t between the Commission and Government\tand,
\n\teventually,  the ‘former held a competitive examination\t for
\n\tthe  posts of deputy collectors in July 1962,  declared\t the
\n\tresults in January 1963 and sent up ,its recommendations  in
\n\tthe  following February.  Government issued orders  for\t ap-
\n\tpointment of the candidates so selected by the Public  Serv-
\n\tice  Commission in May 1963. This is a working\texplanation,
\n\tprima  facie good and not rebutted as got up.  If it is\t not
\n\tnecessary  for\tthe  State Government to  have\trecourse  to
\n\trecondite  processes of ad hoc appointments  and creation of
\n\tex  cadre posts and if government has taken active steps  in
\n\tthe  direction of direct recruitment, the exception  to\t the
\n\tGovernment Resolution comes into operation.  Direct recruit-
\n\tment  ordinarily involves processing by the  Public  Service
\n\tCommission,  an independent body which functions at its\t own
\n\tpace.\tIf Government had excluded the posts of Deputy\tCol-
\n\tlectors\t from the purview of the Public\t Service  Commission
\n\twith  a\t view to achieve expeditious recruitment,  it  might
\n\thave  been exposed to the criticism that the  normal  method
\n\twas being by-passed with oblique motives.  Having looked  at
\n\tthe  matter from a pragmatic angle, we are  ,convinced\tthat
\n\tthe government did what it could and need not have done what
\n\tit  ordinarily should not have\tdone.\tTherefore  the\tcon-
\n\tclusion is inevitable–although Shri Garg’s argument  to the
\n\tcontrary is ingenious–that the\t State had tried, as far  as
\n\tpracticable, to fill 50% of the substantive  vacancies\tfrom
\n\tthe  open  market, but failed during the years\t1960-62\t and
\n\tthat -therefore it was within its powers under the  relevant
\n\trule  to promote mamlatdars  who, otherwise,  complied\twith
\n\tthe  requirements of efficiency.\n<\/p>\n
\t    Now we move on to the more thorny question of quota\t and
\n\trota.  Shri  Garg  urges that the  rotational  mechanics  is
\n\timplicit in the quota system and the two cannot be delinked.
\n\tTo  shore up this submission he relies on what he  propounds
\n\tas the correct command of the rule of ‘quota’.\tIn his view,
\n\t1:  1 simply means one direct recruit or promotee  followed,
\n\tvacancy by vacancy, by the other.  To maintain ‘the  propor-
\n\ttion  in compliance with the quota fixture, Government\tmust
\n\tgo  by each post as it falls vacant and\t cannot\t circumvient
\n\tthis necessity by year-war reckoning of vacancies and  keep-
\n\ting  up\t the  ratio. The counter-view put  forward  by\tShri
\n\tParekh, for the appellant, is that
\n\t338SC1\/76
\n\t1052<\/span>
\n\tquota and rota are not indissolubly wedded and are  separate
\n\tand separable.\tIn the present case, according to him it  is
\n\tan   error   to import ‘rota’ where the rule has  spelt\t out
\n\tonly ‘quota’ as a governing principle.\tThe Usual  practice,
\n\tsanctioned by rulings of this Court,is to go by the year  as
\n\ta unit for working out the quota.\n<\/p>\n
\t  Here\ta again we are not disposed to hold, having  special
\n\tregard\tto the recent decisions of this Court cited   before
\n\tus that ‘quota’ is so the recent decisions of this where the
\n\tformer is expressly prescribed, interlocked with ‘rota, that
\n\twhere  the  former is  expressly prescribed, the  latter  is
\n\timpliedly  inscribed.\tLet us logicise a little.   A  quota
\n\tnecessarily postulates more than one source of\trecruitment.
\n\tBut does it demand the manner in which each source is to  be
\n\tprovided for after recruitment, especially  in the matter of
\n\tseniority ?  Cannot  quota stand independent of rota ?\t You
\n\tmay fix a quota for leach category but that fixes the entry.
\n\tThe    quota\tmethodology    may    itself\ttake\tmany
\n\tforms–vacancy-wise   ratio,  cadre  composition-wise\tpro-
\n\tportion\t period-wise or numberwise regulation.\tMyriad\tways
\n\tcan  be conceived of  Rotational or roster system is a\tcom-
\n\tmonly  adopted and easily understood method of figuring\t out
\n\tthe placement of officers on entry. It is not the only\tmode
\n\tin the code and cannot be read as an inevitable consequence.
\n\tIf  that  much is logical, then what has been done  here  is
\n\tlegal.\t Of course, Shri Garg’s criticism iS that mere\t‘qu-
\n\tota’ is not viable without provision for seniority  and,  if
\n\tnothing more is found in the rule, the quota itself must  be
\n\tunderstood to apply to each post as and when it falls to  be
\n\tfilled.\t If exigencies of administration demand quick  post-
\n\ting  in the vacancy  and one source (here,  direct  recruit-
\n\tment) has gone dry for a while, then the proper course is to
\n\twait  for  a direct recruit and give him  notional  date  of
\n\tentry as of the quota vacancy and manage to keep the  wheels
\n\tof government moving through improvised promotions, express-
\n\tly stripping such ad hocist of rights flowing from temporary
\n\toccupancy.   We have earlier dealt with the same  submission
\n\tin  a slightly different form and rejected it. Nothing\tmore
\n\tremains to be said about it.\n<\/p>\n
\t  What follows and matters on entry into service is seniori-
\n\tty  which often settles the promotional destiny of the\tvar-
\n\tious brands of incumbents.  Naturally, the inter se struggle
\n\tturns  how  best to bend the rules to  one’s  good  account.
\n\tShri  Garg criticised the thoughtways apparent in the  argu-
\n\tment,  backed  by some rulings, that, quota  being  delinked
\n\tfrom  rota,  annual  intake is the unit\t for  adjusting\t the
\n\tseniority among candidates from the two sources.  This is an
\n\tinnovation   dehors the rule, he says.\tWe do not think\t so.
\n\tThe question is not whether the year being taken as the unit
\n\tis the only course but whether there is anything in the rule
\n\tprescribing Government taking it as the unit or\t prescribing
\n\tsome other specific unit.  It is obvious that the Resolution
\n\tof 1959 is silent on how to allocate or reckon the quota  as
\n\talso on how to compute ‘seniority and Government has a\tgood
\n\talibi for taking the year as the unit and length of continu-
\n\tous service as determining seniority.  The first is  evident
\n\tfrom the .reading of the   1959 Resolution  in the light  of
\n\tsome  ruling  of this  Court and the second  from  the\t1941
\n\tResolution.  Moreover, there is nothing in the Resolution of
\n\t1959 preventing Government from treating a year as the unit.\n<\/p>\n
\t1053<\/span><\/p>\n
\tWe therefore reach the following conclusions:\n<\/p>\n
\t\t      1.  The  promotions   of\tmamlatdars  made  by
\n\t\t      Government  between 1960\tand 1962  are  saved
\n\t\t      by  the  ‘as far as practicable’\tproviso\t and
\n\t\t      therefore valid,\tHere it falls to be  noticed
\n\t\t      that  in 1966 regular rules have\tbeen  flamed
\n\t\t      for promotees and direct recruits flowing into
\n\t\t      the pool\t    of Deputy Collectors on the same
\n\t\t      quota basis but with a basic difference.\t The
\n\t\t      saving  provision ‘as far as practicable’\t has
\n\t\t      been  deleted in the 1966 rules.\t The  conse-
\n\t\t      quence  bears upon seniority even if the\tyear
\n\t\t      is treated as the unit for quota adjustment.\n<\/p><\/blockquote>\n
\t\t       2. If any promotions have been made in excess
\n\t\t      of  the  quota set apart\tfor  the  mamlatdars
\n\t\t      after  rules  in 1966 were  made,\t the  direct
\n\t\t      recruits have a legitimate right to claim that
\n\t\t      the  appointees  in excess  of  the  allocable
\n\t\t      ratio  from among mamlatdars will have  to  be
\n\t\t      pushed  down to later years when their  promo-
\n\t\t      tions can be regularised by being absorbed  in
\n\t\t      their  lawful quota for those years.  To\tsim-
\n\t\t      plify,  by illustration, if 10 deputy  collec-
\n\t\t      tors’ substantive vacancies exist in 1967\t but
\n\t\t      8\t promotees  were appointed  and\t two  direct
\n\t\t      recruits alone were secured, there is a  clear
\n\t\t      transgression of the 50: 50 rule.\t The  redun-
\n\t\t      dancy  of 3 hands from among promotees  cannot
\n\t\t      claim to be regularly appointed on a permanent
\n\t\t      basis.   For  the time being they\t occupy\t the
\n\t\t      posts and the only official grade that can  be
\n\t\t      extended\tto  them is to absorb  them  in\t the
\n\t\t      subsequent  vacancies allocable to  promotees.
\n\t\t      This will have to be worked out down the\tline
\n\t\t      wherever there has been excessive\t representa-
\n\t\t      tion of promotees in the annual intake.\tShri
\n\t\t      Parekh,\tCounsel\t for  the   appellants\t has
\n\t\t      fairly conceded this position.\n<\/p><\/blockquote>\n
\t\t      3. The quota rule does not, inevitably, invoke
\n\t\t      the application of the rota rule.\t The  impact
\n\t\t      of this position is that if sufficient  number
\n\t\t      of  direct recruits have not been\t forthcoming
\n\t\t      in  the years since 1960 to fill in the  ratio
\n\t\t      due  to  them and\t those\tdeficient  vacancies
\n\t\t      have.  been  filled up  by  promotees,   later
\n\t\t      direct  recruits\tcannot claim ‘deemed’  dates
\n\t\t      of appointment  for seniority in service\twith
\n\t\t      effect from the time, according to the rota or
\n\t\t      ‘turn,  the  direct recruits’  vacancy  arose.
\n\t\t      Seniority will depend on the length of contin-
\n\t\t      uous  officiating service and cannot be  upset
\n\t\t      by later arrivals from the open market save to
\n\t\t      the  extent to which any excess promotees\t may
\n\t\t      have to be pushed down as indicated earlier.
\n\t    These formulations based on the commonsense\t understand-\n<\/p><\/blockquote>\n
\ting of the Resolution of 1959 have to be tested in the light
\n\tof  decided cases. After all, we live in a  judicial  system
\n\twhere earlier curial wisdom, unless competently\t over-ruled,
\n\tbinds the Court.  The decisions cited
\n\t1054<\/span>
\n\tbefore\tus start with the leading case in Mervyn Coutindo  &
\n\tOrs. v. Collector of Customs, Bombay<\/a>(1) and closes with\t the
\n\tlast pronouncement in Badami v. State of Mysore & Ors.\t(2).
\n\tThis time-span has seen dicta go zigzag but we see no diffi-
\n\tculty  in  tracing a common thread of  reasoning.   However,
\n\tthere  are divergencies in the ratiocination between  Mervyn
\n\tCoutindo (Supra) and Govind Dattaray Kelkar & Ors. v.  Chief
\n\tController of Imports and Exports & Ors.<\/a>(3) on the one\thand
\n\tand  S.G.  Jaisinghani v. Union of  India(4)  .Bishan  Sarup
\n\tGupta v. Union of India,(5) Union of India & Ors. v.  Bishan
\n\tSarup  Gupta<\/a>(6)\t and  A.K. Subbraman &\tOrs.  v.  ‘Union  of
\n\tIndia(7) on the other, especially on the rota system and the
\n\tyear  being regarded as a unit, that this Court may one\t day
\n\thave to harmonize the discordance unless Government wakes up
\n\tto the need for properly drafting its service rules so as to
\n\teliminate litigative waste of its servants’ energies.
\n\t    In Mervyn Coutindo the validity of the rotational system
\n\tas  applied in fixing the seniority inter se between  promo-
\n\ttees and direct recruits fell for decision in the context of
\n\tthe specific rule applicable to Customs’ appraisers.  One of
\n\tthe  principles\t in the circular which contained  the  rules
\n\trelated to the comparative seniority of the two\t categories.
\n\t‘It provides’, says the Court in summarizing the rule,
\n\t\t\t  “that\t relative  seniority of\t direct\t re-\n<\/p>\n
\t\t      cruits  and promotees shah be  determined\t ac-
\n\t\t      cording  to the rotation of vacancies  between
\n\t\t      direct  recruits and promotees which shall  be
\n\t\t      based  on the quota of reservation for  direct
\n\t\t      recruitment and promotion respectively in\t the
\n\t\t      recruitment  rules.  It was further  explained
\n\t\t      that  a roster should be maintained  based  on
\n\t\t      the  reservation\tfor direct  recruitment\t and
\n\t\t      promotion\t in the recruitment  rules.   Where,
\n\t\t      for example,  the reservation for each  method
\n\t\t      is  50 per cent, the roster will run  as\tfol-\n<\/p>\n
\t\t      lows(1) promotion, (2) direct recruitment, (3)
\n\t\t      promotion, (4) direct recruitment, and so\t on.
\n\t\t      Appointments   should  be made  in  accordance
\n\t\t      with  this  roster  and  seniority  determined
\n\t\t      accordingly.   A\tquestion   has\tbeen  raised
\n\t\t      whether the circular of 1940 to which we\thave
\n\t\t      already referred survived after this  circular
\n\t\t      of 1959; but in our opinion it is\t unnecessary
\n\t\t      to  decide that question, for the circular  of
\n\t\t      1959 itself lays down that seniority shall  be
\n\t\t      determined  accordingly,\ti.e.  in  accordance
\n\t\t      with the rotational system, depending upon the
\n\t\t      quota  reserved  for  direct  recruitment\t and
\n\t\t      promotion\t respectively.\tIt is this  circular
\n\t\t      which,  according to the respondent, has\tbeen
\n\t\t      followed\tin  determining\t the  seniority\t  of
\n\t\t      Appraisers in 1963″.,
\n\tIn  the face of such a plain directive in the relevant\trule
\n\tregarding relative seniority for the solution of the problem
\n\tthat  arises before us where such a seniority  provision  is
\n\tabsent and the relevant seniority
\n\t(1) [1966] 3 SCR 600.\t\t(2) [1976] 1 SCR 815.\n<\/p>\n
\t(3) [1967] 2 SCR 29.\t\t(4) [1967] 2 SCR 703.\n<\/p>\n
\t(5) [1975] Supp. SCR 491.\t(6) [1975] 1 SCR 104.
\n\t(7) [1975] 2 SCR 979.\n<\/p>\n
\t1055<\/span><\/p>\n
\tprovision is different, Mervyn Coutindo (supra) cannot be of
\n\tany assistance.\t That case is authority for the\t proposition
\n\tit  decides  in\t the matrix of the special  facts  and\trule
\n\ttherein.  In view of the words of the Circular ‘that senior-
\n\tity  as\t between  direct recruits and  promotees  should  be
\n\tdetermined in accordance with the roster which has also been
\n\tspecified  … the inextricable interlinking  between  quota
\n\tand rota springs from the specific provision rather than  by
\n\tway  of\t any general proposition.  Mervyn  Coutindo  (Supra)
\n\tcannot therefore rescue the respondents. Nor does the refer-
\n\tence  to a ‘service’ being divided into two  parts,  derived
\n\tfrom  two sources of recruitment, help Shri Garg’s  clients.
\n\tThe rule of ‘carry forward’ struck down\t in T. Devadasan  v.
\n\tUnion  of India & Anr.<\/a>(1) has no relevance ,to\ta  situation
\n\twhere  the  whole cadre of a particular service\t is  divided
\n\tinto  two  parts.  Apart from the fact that it\tis  doubtful
\n\twhether\t Devadasan’s  case survives State of  Kerala  v.N.M.
\n\tThomas\t&  Ors. (2) there is no application  of\t the  ‘carry
\n\tforward’ rule at all in fact-situations where two sources of
\n\trecruitment  are  designated  in a  certain  proportion\t and
\n\tshortfalls occur in the one or the other category.  In\tsuch
\n\ta case, what is needed is conformity to the prescription  of
\n\tthe proportion and no. question of carrying anything forward
\n\tstrictly  arises.  It is true that Mervyn (Supra)  does\t not
\n\tsupport\t the year by year intake as the yardstick;  but\t the
\n\treason is obvious–the rule is specific.\n<\/p>\n
\t    Kelkar  (Supra) also dealt with the ratio prescribed  as
\n\tbetween\t direct\t recruits and promotees.   Many\t grounds  of
\n\tattack were levelled there, one of which was that the  rota-
\n\ttional\tsystem would itself violate the principle  of  equal
\n\topportunity  enshrined\tin the Constitution (Art.  16(1)  ).
\n\tThe  Court repelled this contention.  Of course,  promotions
\n\tmade on an ad hoc basis confer no rights to the posts on the
\n\tappointees, as was clearly pointed out in that decision.  In
\n\tthe  instant case it is common ground that the\tappointments
\n\tare  not  on a purely ad hoc basis but have  been  regularly
\n\tmade in accordance with the rules to fill substantive vacan-
\n\tcies  except that the promotees have exceeded  their  quota,
\n\tdirect\trecruits being\tunavailable.  Kelkar (supra)  stands
\n\ton  a  different footing, and hardly advances  the  position
\n\tadvanced by Shri Garg.\n<\/p>\n
\t    Jaisinghani\t (Supra) which has had a  die-hard  survival
\n\tthrough Bishan Sarup Gupta v. Union of India(3) and Union of
\n\tIndia & Ors. v. Bishan Sarup Gupta<\/a>(4) (if one may refer\t to.
\n\tthe  two  cases flowing out of Jaisinghani (supra)  in\tthat
\n\tfashion), has been referred to by both sides at the bar.  It
\n\twas  relied  on by Mr. Garg for the  strong  observation  of
\n\tRamaswami,  J.\tthat the absence of arbitrary power  is\t the
\n\tfirst essential of the rule of law upon which our  constitu-
\n\ttional system is based.\t He has also drawn attention .to the
\n\tsuggestion  made in that decision ‘to the’  government\tthat
\n\tfor  future  years the roster system should  be\t adopted  by
\n\tframing\t an appropriate rule for working out the  quota\t be-
\n\ttween  direct recruits and the promotees  ……  ‘. We\t may
\n\tstraightway  state that our Constitutional system  is\tvery
\n\tallergic  to arbitrary power but there is nothing  arbitrary
\n\tmade  out in the present case against the  government.\t The
\n\tsecond observation in
\n\t(1) [1964] 4 SCR 680.\t     (2) [1976] 1 SCR 906.\n<\/p>\n
\t(3) [1975] Supp. SCR 491.    (4) [1975] 1 SCR 104.\n<\/p>\n
\t1056<\/span><\/p>\n
\tJaisinghani (Supra) is of a suggestion that for future years
\n\tthe  roster system linking up quota with rota, may  well  be
\n\tadopted by government.\tIt is not the interpretation of\t any
\n\texisting  rule nor laying down of a rule of law, so much  so
\n\twe  cannot  have  any guideline therefrom to  apply  to\t the
\n\tpresent\t case.\t The  Government could no doubt,  if  it  so
\n\tthought\t expedient, frame a specific rule incorporating\t the
\n\troster\tsystem so as to regulate seniority.  But  we  should
\n\tnot  forget that seniority is the manifestation of  official
\n\texperience,–the process of metabolism of service, over\t the
\n\tyears, of civil servants, by the Administration–and, there-
\n\tfore,  it is appropriate that as far as possible he who\t has
\n\tactually served longer benefits better in the future.  More-
\n\tover,  the  search for excellence receives a jolt  from\t the
\n\trule of equality and the State is hard put to it in striking
\n\ta happy balance between the two criteria  without impairment
\n\tof  administrative efficiency.\tBroadly speaking, the  Court
\n\thas to be liberal and circumspect where the area is  trickly
\n\tor  sensitive, since administration by court writ  may\twell
\n\trun haywire.\n<\/p>\n
\t    Moving on, we may start off with the statement that\t the
\n\tlast  case  Badami (Supra) lays\t down  the  incontrovertibly
\n\tharmless principle that quotas that are fixed are  inaltera-
\n\tble according to governmental exigencies.  But there, unlike
\n\there,  no saving provision ‘as far  as practicable’  existed
\n\tand  here  post-1966 promotees have to suffer  a  push\tdown
\n\twhere  their  appointments are in .excess of.  the  promotee
\n\tquota.\tNothing directly bearing on our controversy could be
\n\tdiscerned by us in that decision.\n<\/p>\n
\t    Gupta  I  (Supra) an off-shoot of  Jaisinghani  (Supra),
\n\tproceeds  on the assumption that the quota is for  .a  year.
\n\tWhether\t the  rule stated so or not, that was  probably\t the
\n\tpractice and there was nothing unreasonable in it.  Even  if
\n\tthe  rule as such had expired, it could, according  to\tthat
\n\tdecision,  be  followed as a guideline.\t Government  had  to
\n\tfollow\tsome guiding principle and not be led by its  fancy,
\n\tas each occasion  arose.  Palekar, J. expressed the view  of
\n\tthe Court thus:\n<\/p>\n
\t\t\t  “When the rule is followed as a  guideline
\n\t\t      and appointments made, a slight deviation from
\n\t\t      the quota would not be material.\tBut if there
\n\t\t      is an enormous deviation, other considerations
\n\t\t      may arise.”\n<\/p><\/blockquote>\n
\tIn the present case, prior to 1963, there was departure from
\n\tthe quota system and that was sanctioned by the rule  itself
\n\tbecause\t of special circumstances.  For subsequent  periods,
\n\tif  by\ttaking the year as a unit there\t have  been  surplus
\n\tpromotees  beyond  their allocation even after\ttaking\tinto
\n\taccount\t impracticability  of getting direct  recruits\tupto
\n\t1966 when new statutory rules were enacted, then such spill-
\n\tovers, could and should, as indicated by this Court, be\t set
\n\toff  and absorbed in the later allocable vacancies, the\t pro
\n\ttempore\t illegal  appointments being thus  regularised.\t  Of
\n\tcourse,\t  appointees  on an ad hoc basis are  never  clothed
\n\twith any rights and have to quit when the exit time  arrives
\n\tbut  here  there  are none.  In Gupta  II(Supra)  the  Court
\n\truled:\n<\/p>\n
\t1057<\/span><\/p>\n
\t\t\t    “If there were promotion in any year  in
\n\t\t      excess  of  the quota  those  promotions\twere
\n\t\t      merely invalid for that year but they were not
\n\t\t      invalid for all time.  They can be regularised
\n\t\t      by  being absorbed in the quota for the  later
\n\t\t      years.  That  is\tthe reason  why\t this  Court
\n\t\t      advisedly\t used the expression  ‘and  onwards’
\n\t\t      just  to\tenable the Government to  push\tdown
\n\t\t      excess   promotions  to later  years  so\tthat
\n\t\t      these promotions can be absorbed in the lawful
\n\t\t      quota for those years.”\n<\/p><\/blockquote>\n
\tSuch  is  the essence of the two Gupta cases  (Supra).\t Law
\n\tconceptualises anew every time life inseminates it with\t new
\n\tneeds  and  we\thave in Gupta the  innovation  of  temporary
\n\tinvalidity  of\tan  appointment-clinically  dead  but  later
\n\tresuscitated ?\tJurisprudence burgeons from the left  neces-
\n\tsities of society.\n<\/p>\n
\t    A.K.  Subbaraman  (Supra) relying on .Gupta 11   (Supra)
\n\tand  going  further, has silenced the direct  recruits\twith
\n\treference  to the precise contention now urged by Shri\tGarg
\n\tthat  rota  being imbedded in the womb of the  quota  system
\n\ttheir  co-existence could not be snapped.  While  quota\t and
\n\trota may constitutionally co-exist their separation is\talso
\n\tconstitutionally permissible,  if some ‘reasonable’ way, not
\n\tarbitrary  whim, were resorted to.  Even what is   ‘reasona-
\n\tble’  springs from sort of reflexes manifesting social\tsub-
\n\tconsciousness, as it were.  Nothing absolutely valid  exists
\n\tand rationality and justice themselves are relative.  Within
\n\tthese great mental limitations, the Court’S observations  in
\n\tSubbaraman (Supra) have to be decided.\n<\/p>\n
\t      This brief and quick survey of decided cases, and\t the
\n\tsubmissions  considered\t by  us in  the\t judicial  crucible,
\n\tyield the following  conclusions, leaving aside the question
\n\tof  ‘confirmation’ in service which, in the Gujarat  set-up,
\n\tleaves our controversy untouched:\n<\/p>\n
\t\t\t  (a) The quota system does not\t necessitate
\n\t\t      the adoption of the rotational rule in practi-
\n\t\t      cal  application.\t  Many ways of\tworking\t out
\n\t\t      ‘quota’  prescription can be devised of  which
\n\t\t      rota is certainly one.\n<\/p><\/blockquote>\n
\t\t\t   (b) While laying down a quota when  fill-
\n\t\t      ing up vacancies in a cadre from more than one
\n\t\t      source, it is open to Government,\t subject  to
\n\t\t      tests  under Art.\t 16, to choose ‘a  year’  or
\n\t\t      other  period or the vacancy by vacancy  basis
\n\t\t      to work out the quota among the sources.\t But
\n\t\t      once  the\t Court is satisfied,  examining\t for
\n\t\t      constitutionality\t the method  proposed,\tthat
\n\t\t      there  is no invalidity, administrative  tech-
\n\t\t      nology  may have free play in choosing one  or
\n\t\t      other of the familiar processes of  implement-
\n\t\t      ing  the\tquota rule.  We, as  Judges,  cannot
\n\t\t      strike  down the particular scheme because  it
\n\t\t      is unpalatable to forensic taste.\n<\/p><\/blockquote>\n
\t\t\t   (c)\tSeniority, normally. is measured  by
\n\t\t      length of continuous, officiating service–the
\n\t\t      actual is easily accepted as the legal.\tThis
\n\t\t      does  not preclude a  different  prescription,
\n\t\t      constitutionally tests being satisfied.\n<\/p><\/blockquote>\n
\t\t      1058<\/span><\/p>\n
\t\t\t  (d) A periodisation is needed in the\tcase
\n\t\t      to  settle  rightly  the\trelative  claims  of
\n\t\t      promotees\t and direct recruits. 1960-62  forms
\n\t\t      period  A\t and 1962 onwards forms\t period.  B.
\n\t\t      Promotees regularly appointed  during period A
\n\t\t      in  excess of their quota, for want of  direct
\n\t\t      recruits\t(reasonably sought but\tnot  secured
\n\t\t      and  because tarrying longer would injure\t the
\n\t\t      administration)  can claim their whole  length
\n\t\t      of  service for seniority even against  direct
\n\t\t      recruits ‘who may turn up in succeeding  peri-
\n\t\t      ods.\n<\/p><\/blockquote>\n
\t\t\t  (e)  Promotees who have been\tfitted\tinto
\n\t\t      vacancies beyond their quota during the period
\n\t\t      B–the  year being regarded as the  unit–must
\n\t\t      suffer survival as invalid appointees  acquir-
\n\t\t      ing  new\tlife when vacancies in\ttheir  quota
\n\t\t      fall  to\tbe filled up.  To that\textent\tthey
\n\t\t      will  step  down,\t rather be  pushed  down  as
\n\t\t      against  direct  recruits who were  later\t but
\n\t\t      regularly appointed within their quota.<\/p><\/blockquote>\n
\t    On\tthis  basis, the judgment of the High  Court  stands
\n\tsubstantially  modified, but preparation of a new  seniority
\n\tlist  becomes necessitous. We set aside the  judgment  under
\n\tappeal but direct the State Government to draw up de novo  a
\n\tgradation list showing inter se seniority’ on the lines this
\n\tjudgment directs.  The subject has been pending so long that
\n\tvery  expeditious  administrative finalisation\tis  part  of
\n\tjustice. Officials live in the short run even if Administra-
\n\ttions  live  in the long run.  We direct the  State  to\t act
\n\tquickly.   Lack\t of adequate articulation of  simple  points
\n\tregarding  rotation and seniority, and the amber light\tshed
\n\tby  case-law on the questions raised, warrant the  direction
\n\tthat parties shall bear their costs throughout.
\n\t    The\t unlovely impact of these protracted and  legalistic
\n\tproceedings  makes us epilogue, an unusual step in  a  judg-
\n\tment, but pathetically necessitous for the renovation of the
\n\tjudicial process.  Law is not a ‘brooding omnipotence in the
\n\tsky’  nor  a sort of secretariat asoterica  known   only  to
\n\thigher\t officialdom.\t But lengthy legal   process,  where
\n\tadministrative\timmediacy  is the desideratum, is  a  remedy
\n\tworse  than the malady.\t The fact that the present case\t has
\n\ttaken  around  5 working days for oral arguments  is  a\t sad
\n\tcommentary  on the system, which compels litigents  to\tseek
\n\textra-curial forums.  Judge Brian Mokenna was right (and the
\n\tIndian\tjudicial  process needs systemic change\t ‘since\t his
\n\twise words apply also to our judicature) when he said:\n<\/p>\n
\t\t\t    “The  fault\t is that the  rules  of\t our
\n\t\t      procedure\t which\tby their  discouragement  of
\n\t\t      written  argument\t make  possible\t extensively
\n\t\t      protracted hearings in open court.  Those\t re-
\n\t\t      sponsible\t might think more of changing  them.
\n\t\t      In civil cases a written argument supplemented
\n\t\t      by  a short oral discussion, would  sometime’s
\n\t\t      save a great deal of time.”\n<\/p><\/blockquote>\n
\tTo  streamline\tand  to modernise  court-management   is   a
\n\tCinderella  subject in India, as elsewhere. We conclude,  by
\n\trepeating what Chief
\n\t1059<\/span>
\n\tJustice\t Warran\t Burger of the U.S. Supreme Court  said,  in
\n\t1970, in his address to the American Bar Association:\n<\/p>\n
\t\t\t    “In\t the final third of the\t century  we
\n\t\t      are  still trying to operate the\tcourts\twith
\n\t\t      fundamentally  the  same\tbasic  methods,\t the
\n\t\t      same   procedures\t and  the  same\t  machinery,
\n\t\t      Roscoe  Pound  said were not  good  enough  in
\n\t\t      1906.   In the super-market age we are  trying
\n\t\t      to  operate  the\tcourts\twith   craker-barrel
\n\t\t      corner  grocer methods and  equipment–vintage
\n\t\t      1900.”\n<\/p><\/blockquote>\n
\t      We too have miles to go for law and justice to meet.\n<\/p><\/blockquote>\n
\tP.H.P.\t\t\t\t\tAppeal allowed.\n\t1060<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India N.K. Chauhan & Ors vs State Of Gujarat & Ors on 1 November, 1976 Equivalent citations: 1977 AIR 251, 1977 SCR (1)1037 Author: V Krishnaiyer Bench: Krishnaiyer, V.R. PETITIONER: N.K. CHAUHAN & ORS. Vs. RESPONDENT: STATE OF GUJARAT & ORS. DATE OF JUDGMENT01\/11\/1976 BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. BHAGWATI, P.N. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-65270","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nN.K. 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