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Bombay High Court
KANTAWALA,TULZAPURKAR,KANIA
Chandrakant Sakharam Karkhanis - Appellant
Versus
State of Maharashtra - Respondent
Decided On : 04/14/1976
Whether the Circulars, Orders or Resolutions or parts thereof laying down rules or principles of general application, which have to be observed in the recruitment or fixation of seniority of Government servants generally or a particular class of them, and which have been duly authenticated by a signature under the endorsement "By order and in the name of the Governor of Maharashtra" and intended to be applicable straightway can amount to rules framed in exercise of the powers conferred under the proviso to Art.309 of the Constitution of India, although the said Circulars, Orders or Resolutions do not expressly state that the same are made or issued in exercise of the powers conferred under the proviso to Art.309 of the Constitution of India and are not published in the Government Gazette.
Fact of the Case:
The dispute arose between direct recruits and promotees in the Secretariat departments of the Government of Maharashtra. The dispute to some extent is aggravated by apparently inconsistent or conflicting circulars, orders or resolutions issued from time to time. In order to appreciate how these questions have arisen for determination it would be sufficient if the facts pertaining to Spl. Civil Appln. No.201 of 1971 are briefly stated.
Finding of the Court:
The Circulars, Orders or Resolutions or parts thereof laying down the rules or principles of general application, which have to be observed in the recruitment or fixation of seniority of Government servants generally or a particular class of them, and which have been duly authenticated by a signature under the endorsement "By order and in the name of the Governor of Maharashtra" and intended to be applicable straightway can amount to rules framed in exercise of the powers conferred under the proviso to Art.309 of the Constitution, although the said Circulars, Orders or Resolutions do not expressly state that the same are made or issued in exercise of the powers conferred under the proviso to Art.309 of the Constitution of India and are not published in the Government Gazette.
Issues: 1. Whether the Circulars, Orders or Resolutions or parts thereof laying down rules or principles of general application, which have to be observed in the recruitment or fixation of seniority of Government servants generally or a particular class of them, and which have been duly authenticated by a signature under the endorsement "By order and in the name of the Governor of Maharashtra" and intended to be applicable straightway are or amount to the rules framed in exercise of the powers conferred under the proviso to Art.309 of the Constitution of India, although the said Circulars, Orders or Resolutions do not expressly state that the same are made or issued in exercise of the powers conferred under the proviso to Art.309 of the Constitution of India and are not published in the Government Gazette? 2. Whether the said Circulars, Orders or Resolutions or parts of them as set out in Question No.1 above must be deemed to be rules made in exercise of the powers conferred under the proviso to Art.309 of the Constitution of India? 3. Whether the said Circulars, Orders or Resolutions or parts thereof as set out in Question No.1 above have the same force or effect in law as a rule or rules made in exercise of the powers conferred under the proviso to Art.309 of the Constitution of India?
Ratio Decidendi: 1. The power which is conferred upon the President or the Governor under Art.309 of the Constitution being legislative in character and the rules that are to be framed thereunder being tantamount to laws regulating recruitment and other service conditions of the Government employees in public services or posts which will have general applicability, the publication of such rules is absolutely essential, but, in our view, it will be too narrow a view to take that such publication must necessarily be in the official gazette. 2. There is nothing in the proviso to Art.309 of the Constitution which prescribes this particular mode of publication in the official gazette nor has the counsel been able to draw our attention to any other provision of law which prescribes this particular mode of publication before the rules framed in exercise of that power become effective.
Final Decision: The Circulars, Orders or Resolutions or parts thereof laying down the rules or principles of general application, which have to be observed in the recruitment or fixation of seniority of Government servants generally or a particular class of them, and which have been duly authenticated by a signature under the endorsement "By order and in the name of the Governor of Maharashtra" and intended to be applicable straightway can amount to rules framed in exercise of the powers conferred under the proviso to Art.309 of the Constitution, although the said Circulars, Orders or Resolutions do not expressly state that the same are made or issued in exercise of the powers conferred under the proviso to Art.309 of the Constitution of India and are not published in the Government Gazette.
TULZAPURKAR, J. :- The three questions referred to our Full Bench by the Division Bench are these:
(1) Whether the Circulars, Orders or Resolutions or parts thereof laying down rules or principles of general application, which have to be observed in the recruitment or fixation of seniority of Government servants generally or a particular class of them, and which have been duly authenticated by a signature under the endorsement "By order and in the name of the Governor of Maharashtra'' and intended to be applicable straightway are or amount to the rules framed in exercise of the powers conferred under the proviso to Art.309 of the Constitution of India, although the said Circulars, Orders or Resolutions do not expressly state that the same are made or issued in exercise of the powers conferred under the proviso to Art.309 of the Constitution of India and are not published in the Government Gazette?
(2) Whether the said Circulars, Orders or Resolutions or parts of them as set out in Question No.1 above must be deemed to be rules made in exercise of the powers conferred under the proviso to Art.309 of the Constitution of India?
(3) Whether the said Circulars, Orders or Resolutions or parts thereof as set out in Question No.1 above have the same force or effect in law as a rule or rules made in exercise of the powers conferred under the proviso to Art.309 of the Constitution of India?
2. Though three questions as set out above have been referred to this Bench, in our view, the substantial question that needs an answer is the first one, the other two being of ancillary character.
3. At the outset it may be observed that these questions arise out of more or less a perpetual dispute going on between direct recruits and promotees in the Secretariat departments of the Government of Maharashtra. The dispute to some extent is aggravated by apparently inconsistent or conflicting circulars, orders or resolutions issued from time to time. In order to appreciate how these questions have arisen for determination it would be sufficient if the facts pertaining to Spl. Civil Appln. No.201 of 1971 are briefly stated: The petitioners in this Special Civil Application are Lower Division Clerks in the Education and Social Welfare Department of the State of Maharashtra (respondent No.1) and who have been promoted as Junior Assistants. Petitioner No.2 amongst them was the first to be so promoted on 3rd November 1961 while petitioners Nos.1 and 5 were the last to be so promoted on 6th January 1964. It also appears that petitioners Nos.2, 3 and 6 have been provisionally confirmed as Junior Assistants from 2nd August 1968. Respondent Nos.2 to 5 are the direct recruits having been directly recruited in employment as Junior Assistants on selection by the Maharashtra Public Service Commission. Of these the first to be appointed was respondent No.3 who was appointed on 19-3-1962 and the last to be appointed was respondent No.2 who was appointed on 19-4-1966. The petition deals with the question of seniority in the posts of Junior Assistants between the petitioners on the one hand and the respondents on the other i.e. between promotees and direct recruits. According to the petitioners, as a result of the policy and the circulars, orders and resolutions issued by the 1st respondent from time to time, some of them, like petitioners Nos.2, 3 and 6 for example, who have already been confirmed in the posts as Junior Assistants, are liable to be deconfirmed after long and meritorious service in the said posts on account of allegedly arbitrary and invalid rules and resolutions passed by the 1st respondent and some of the petitioners are even in the danger of being reverted on account of such arbitrary and unjust rules and resolutions, which are the subject-matter of the petition and such result is likely to arise in the following facts and circumstances:
4. It is common ground that prior to 23rd April 1921 the Lower Division Clerks were not promoted to the posts
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