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SUPREME COURT OF INDIA
P.N. BHAGWATI, V.R. KRISHNA IYER AND S. MURTAZA FAZAL ALI, JJ.
N. K. Chauhan and others, Appellants
Versus
State of Gujarat and others, Respondents.
Civil Appeal No. 463 of 1976,
D/- 1-11-1976.
Advocates appeared
Mr. D. V. Patel, Sr. Advocate (Mr. P. H. Parekh and Miss Manju Jetley, Advocates with him), 253 for Appellants; Mr. M. C. Bhandare, Sr. Advocate (M/s. S. P. Nayar and M. N. Shroff, Advocates with him), for the State of Gujarat; M/s. R. K. Garg and S. C. Agrawala, Advocates, for Respondents Nos. 5-6 and 8-11; Mr. M. N. Shroff, Advocate, for the State of Maharashtra.
Constitution of India, 1950 - Articles 14 and 16 – Claim of compensation – Employment and services - Flexible remedial jurisdictions - Whether a quota prescription will-nilly does postulate ex-necessitate a Rota process in practice - Whether a particular set of rules is framed under proviso to Article 309 or in mere exercise of Article 162 although it is desirable that State makes it explicit - Whether government in present case has made effective efforts doing all that it reasonably can to recruit from open market necessary numbers of qualified hands - Whether government has satisfied Court that efforts had been made to secure direct recruits and failure to secure such hands is explanation for resort to promotions of mamlatdars - if only static and stratified system were transformed and men properly oriented and activated may well prove equal to dynamic challenges of our times but for the pathetic phenomenon of numbers of officials being locked in long forensic battles - This litigative pathology of members of public services deplorably diverts undivided energies sensitive understanding and people-based disposition demanded of them for fulfilment of the Nations Tryst with Destiny through implementation of massive and multiform developmental plans - Hopefully constructive thinking on impregnable competent and quick-acting infra-structures and procedures for improving and accelerating system of justice to public services is currently under way - Now to merits - Briefs are big and arguments long but factual matrix and legal conflict lend themselves to be condensed without detriment - Competition between two categories of members borne on cadre of Deputy Collectors of State of Gujarat viz. direct recruits and in-service promotes on issue of seniority inter se with its futuristic career overtones is crunch question in this civil appeal - Grey area of service jurisprudence covered before us encompasses several decisions and if by good disputing shall the law be well known there has been so much disputation of learned length at bar that the legal points should have been more pellucid than precedents read and re-read made us feel – Held, Quota system does not necessitate adoption of rotational rule in practical application - Many ways of working out quota prescription can be devised of which Rota is certainly one - While laying down a quota when filling up vacancies in a cadre from more than one source it is open to Government subject to tests under Article 16, to choose a year or other period or the vacancy by vacancy basis to work out the quota among the sources. But once the Court is satisfied, examining for constitutionality method proposed that there is no invalidity administrative technology may have free play in choosing one or other of familiar processes of implementing quota rule – Court as Judges cannot strike down particular scheme because it is unpalatable to forensic taste – Seniority normally is measured by length of continuous officiating service - actual is easily accepted as the legal - This does not preclude a different prescription constitutionality tests being satisfied - A periodisation is needed in this case to settle rightly the relative claims of promotees and direct recruits onwards forms period B - Promotees regularly appointed during period A in excess of their quota for want of direct recruits can claim their whole length of service for seniority even against direct recruits who may turn up in succeeding periods - Promotees who have been fitted into vacancies beyond their quota during period B - year being regarded as unit - Must suffer survival as invalid appointees acquiring new life when vacancies in their quota fall to be filled up. To that extent they will step down, rather be pushed down as against direct recruits who were later but regularly appointed within their quota - On this basis judgment of High Court stands substantially modified but preparation of a new seniority list becomes necessitous - Court set aside judgment under appeal but direct State Government to draw up de novo a gradation list showing inter se seniority on lines this judgment directs - Subject has been pending so long that very expeditious administrative finalization is part of justice - Officials live in short run even if Administrations live in long run – Court direct the State to act quickly - Lack of adequate articulation of simple points regarding rotation and seniority and amber light shed by case-law on questions raised warrant direction that parties shall bear their costs throughout - Unlovely impact of these protracted and legalistic proceedings makes us epilogue an unusual step in a judgment but pathetically necessitous for renovation of judicial process - Law is not a brooding omnipotence in sky nor a sort of secretariat esoterica known only to higher officialdom - But lengthy legal process where administrative immediacy is desideratum is a remedy worse than malady - Fact that present case has taken around five working days for oral arguments is a sad commentary on system which compels litigants to seek extra-curial forums - Appeal allowed
Judgment
KRISHNA IYER, J.:- This is a typical service appeal, by special leave which prompts the topical question: Is it wiser national policy to process disputes regarding seniority, promotion, termination and allied matters affecting the public services, through the docket-bound, form alised, methodology of the judicature adopting its traditional, time-consuming, tier-upon-tier system and handicapped by absence of administrative expertise, accessibility to critical information and other limitations on the mode and extent of relief, or, alternatively, through built-in, high-powered, but credibility-wise less commanding agencies of composite skills and processes and flexible remedial jurisdictions? Justice and Reform is a recurrent interrogation.
2. Our civil services, if only the static and stratified system were transformed and the men properly oriented and activated, may well prove equal to the dynamic challenges of our times but for the pathetic phenomenon of numbers of officials being locked in long forensic battles. This litigative pathology of the members of the public services deplorably diverts the undivided energies, sensitive understanding and people-based disposition demanded of them for the fulfilment of the Nations Tryst with Destiny through implementation of massive and multiform developmental plans. Hopefully constructive thinking on impregnable, competent and quick-acting (but not derobed or devalued) infra-structures and procedures for improving and accelerating the system of justice to the public services, is currently under way.
3. Now to the merits. The briefs are big and the arguments long, but the factual matrix and the legal conflict lend themselves to be condensed without detriment. The competition between two categories of members borne on the cadre of Deputy Collectors of the State of Gujarat viz., direct recruits and in-service promotees, on the issue of seniority inter se, with its futuristic career overtones, is the crunch question in this civil appeal. The grey area of service jurisprudence covered before us encompasses several decisions and if by good disputing, shall the law be well known, there has been so much disputation of learned length at the bar that the legal points should have been more pellucid than the precedents read and re-read made us feel. The aid of the purifying ordeal of skilled argument when too lapidary and finical reaches a point of no return, despite Magarry, J., to the contrary in Cordell v. Second Clanfield Properties Ltd., (1968) 3 All ER 746.
4. Seven Deputy Collectors, arriving by direct recruitment in, and after 1963 claim to be ahead, in the gradation list, of their more numerous counterparts, former mamlatdars, whose promotional incarnation as Deputy Collectors, dates back to the years 1960-63. The title of these younger incumbents to be elder in the Civil List is primarily founded on a basic Resolution of Government of July 30, 1959 regulating recruitment to the Deputy Collectors cadre by the then Bombay State adopting a quota basis. The Gujarat State, carved out of Bombay and formed on May 1, 1960, continued the system; and so, simplistically presented, the fate of the seniority struggle critically turns on the construction the Bombay Resolution of 1959 bears, the rival versions having been alternately frowned upon or favoured at the original and appellate decks of the High Court. There are other matters of moment debated at the bar and we will pass on some of them at later stages. In administrative and legal terms, this case is the projection of the common rivalry for promotional positions between fresh, young recruits and old, seasoned promotees, between alleged excellence of talented youth and tested experience of mellowed age. Sympathies may sway either way and reasons often spring from sympathies.
5. To be captiously wise in retrospect may itself border on vice. Even so, we are constrained to observe that when government orders, as here, have the flavour of law a
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