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TMI Blog1976 (11) TMI 190X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Nation's 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) intra-structures and procedures for improving and accelerating the system of justice to the public services is currently under way. Now to the merits. The briefs are big and the arguments long, but the factual matrix and the legal conflicts 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 que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... comprehensive and there is a duty on the law-maker at every level not to injure the community by tengled webs of rules, orders and notifications whose meaning is revealed only through transcendental meditation or constant litigation. in a socialistic pattern of society there is hardly any part of national life or personal life which is not affected by some legal rule or other. When men have to look to the law from the cradle to the grave, making of even subsidiary laws demands greatest attention. To begin with the legal beginning is best done with the Bombay Government Resolution of 1959 after giving a thumbnail sketch of the relevant service structure and other minimal particulars. The composite Bombay State, for purposes of Revenue Administration, had been divided into Divisions which were separate units for promotional prospects, liability to transfer etc., of deputy collectors. The routine source of recruitment to these posts used to be mamlatdars who were transferred as deputy collectors by promotion. As early as 1939, a different recruitment policy had been evolved for picking suitable hands from the open market by direct nomination. The inevitable concomitant of a pluralit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r purpose: "Appointment to the posts of Deputy Collector shall be made either by nomination or by promotion of suitable Mamlatdars: Provided that the ratio of appointment by nomination and by promotion shall, as far as practicable, be 50: 50." The raw materials government proceedings needed for our discussion will be complete if the 1941 Resolution also were read at this stage: "GOVERNMENT OF BOMBAY Political & Services Department Resolution No. 3283/34 Bombay Castle, 21st November, 1941. x x x RESOLUTION: Government is pleased to direct that the following principles should be observed in determining the seniority of direct recruits and promoted Officers in the provincial services (except the Bombay services of Engineers, Class I) (i) In the case of direct recruits appointed substantively on probation, the seniority should be determined with reference to the date of their appointment on probation. (ii) In the case of officers promoted to substantive vacancies, the seniority should be determined with reference to the (1 ) Date of their promotion to the (2) substantive vacancies (3) provided there has been no break in service prior to their confirmation in those vacancies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und by administrative directions of the parent State and may free itself from it by appropriate steps, an unguided power is suspect and a carte blanche in doing what Government fancies with any of its servants is subversive of ordered societies. We have no further probe to make into this Resolution in the present case and leave it at that. The fact of the matter is that during 1959--62, no direct recruitments were made but many promotions were effected. Afterwards, i.e., in 1963 and later, direct recruits were appointed who, contrary to their legal aspiration, were not assigned seniority over earlier promotees of 1960--63 vintage, having regard to the factual position. The further hope that for post-1963 recruits, dates of appointment, and running of service with effect therefrom, on the basis of a quota allocation and rota system telescoped into it, proved a plain dupe in the seniority list prepared by government. The doubly chagrined direct recruits moved the High Court for relief, as stated earlier. The anatomy, in outline, of the deputy collector's cadre in the Gujarat Government and the grievances of the writpetitioners (respondents before us) thus emerge. On a 50:50 basis th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll not set man to such a task, unless they have absorbed the spirit, and have filled themselves with a love, of the language they must read." Two groups, the promotees who came from the lesser stations of life and the direct recruits who have had better advantages of higher education, fight for berths in the musical chair. In such situations, while construing rules, subconscious forces have to be excluded and objectification must be attempted. Even so, the beautiful candour of Benjamin Cardozo whispers to us that we judges "are ... ever and always listening to the still small voice of the herd, and are ever ready to defend and justify its instructions and warnings, and accept them as the nature results of our own reasoning. This was written, not of judges specially, but of men and women of all classes. The training of the judge, if coupled with what is styled the judicial temperament, will help in some degree to emancipate him from the suggestive power of individual dislikes and prepossessions ." ( 2 ) Our effort in unlocking the meaning of the controversial Government Resolution of July 1959 and of other official notifications may inarticulately, minimally and unwittingly, be mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive vacancies, not ex cadre posts by selection and promotion, they must be treated as provisional nationally filled by direct recruits who may arrive long later? And consequentially, in counting seniority, reckon their (i.e., direct recruits) deemed dates of entry as prior to those actually officiating promotee deputy collectors by importing a sort of legal fiction that the direct recruits must be allowed to count service from the date when the entitled vacancy for direct recruits arose? May be a diffusive, digressive discussion can be obviated and the focus turned on specific issues if we start with a formulation of the major points urged by Sri D. V. Patel, counsel for the appellant, hotly controverted, of course, by shri R.K. Garg for the contesting respondents. Elimination of the minor clears the ring for the major bouts. The appellants represent the group of promotee deputy collectors and the contestants are deputy collectors directly recruited. The Gujarat State lines up with the former, more or less. We now set out sequentially the six-point propositional formulation made by Shri Patel, for the appellants, although salience suggests the third item as first--and, if .we ant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is the 'rounding document' of the rights of the direct recruits itself states that the proportion between the two categories is to be applied 'as far as practicable'. Therefore, the rule is neither exception-proof nor abstractly absolute but realistic and flexible true to life. Rigidly to read the rule is surely to misread it. Since it contemplates special situations of impracticability it is but right for the Court so to construe the Resolution, in the light of the explanation offered by the State for non-recruitment directly until 1963, as to make it administratively viable and reasonably workable If such an imaginative and informed judicial insight plays upon the rule, the difficulties in making immediate recruitments from the open market by the Public Service Commission may sufficiently absolve the State from the supposed violation of Government Resolution of 1959 So viewed, the orders of promotion of the appellants are in order and unassailable. (4) & (5) The mandate of equality ensconced in Arts 14 and 16 cannot handcuff justice by pushing down the promotees if the Seniority List in the face of their actual service and legal appointment. The attack based on Art. 16 that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ects will be governed by recruitment, conduct and disciplinary rules, to respect, beyond suspicion, the rule of law by exercising statutory power as distinguished from executive power, even where it has an option. Of course, in exceptional situations, or sudden exigencies and for new experiments to be tried, the framing of statutory rules under Art. 309, proviso, may be postponed and executive orders immediately promulgated. The best judge is the State Government exercising its power justly and efficiently. For the art of government is beset with the perils of a journey through life's jungle and textbook prescriptions can prove ruinous. We may point to another problem. It has often been difficult to discover whether a particular set of rules is framed under the proviso to Art. 309 or, in mere exercise of Art. 162, although it is desirable that the State makes it explicit. We are, however, not called upon to investigate this perplexing aspect because, as stated earlier, the High Court has held that the State is bound by the Bombay G.O. of 1959. Counsel for the appellants, Shri Patel, and counsel for the State, Shri Bhandare, have rightly acquiesed in that position and proceeded with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption. Later, when direct recruits were secured, they would be entitled to their quota vacancies and commencement of seniority from the date of their appointment. Logomachic exercises are the favourite of the forensic system but too barren to fascinate the Court and too luxurious, in our penury of time to indulge. Should we chase decisions and dictionaries and finer verbal nuances with explorative industry ? The sense of the setting, the 'why' the author whispers through his words and the warning 'not this. not this' that the objective understanding of the totality of the socially relevant scheme instils--these light up the interpretative track alone the criss-cross woods of case-law and lexicons. Led by that lodestar, we will eye the situation afresh. In doing so, we must first set down the meaning Shri Patel suggests, and Shri Bhandare supports, and the manner in which these appellants claim that their appointments and seniority are sequestered by the saving words 'as far as practicable'. What does 'as far as practicable' or like expression mean, in simple anglo-saxon ? Practicable, feasible, possible, performable, are more or less interchangeable. A skiagraph of the 1959 Resol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e factors, thought that a blended brew would serve best. Even so, it could not 'have been the intention of government to create artificial situations, import legal fictions and complicate the composition of the cadre by deviating from the natural course. The State probably intended to bring in fresh talent to the extent reasonably available but not at the sacrifice of sufficiency of hands at a given time nor at the cost of creating a vacuum by keeping substantive vacancies unfilled for long. The straight forward answer seems to us to be that the State, in tune with the mandate of the rule, must make serious effort to secure hands to fill half the number of vacancies from the open market. If it does not succeed, despite honest and serious effort, it qualifies for departure from the rule. If it has become non-feasible, impracticable and procrastinatory to get the requisite quota of direct recruits, having done all that if could, it was free to fill the posts by promotion of suitable hands if the filling up of the vacancies was administratively necessary and could not wait. Impracticable cannot be equated with 'impossible'--nor with unplatable--and we cannot agree with the learned jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Public Service Commission, an independent body which functions at its own pace. If Government had excluded the posts of Deputy Collectors from the purview of the Public Service Commission with a view to achieve expeditious recruitment, it might have been exposed to the criticism that the normal method was being by-passed with oblique motives. Having looked at the matter from a pragmatic angle, we are ,convinced that the government did what it could and need not have done what it ordinarily should not have done. Therefore the conclusion is inevitable--although Shri Garg's argument to the contrary is ingenious--that the State had tried, as far as practicable, to fill 50% of the substantive vacancies from the open market, but failed during the years 1960-62 and that -therefore it was within its powers under the relevant rule to promote mamlatdars who, otherwise, complied with the requirements of efficiency. Now we move on to the more thorny question of quota and rota. Shri Garg urges that the rotational mechanics is implicit in the quota system and the two cannot be delinked. To shore up this submission he relies on what he propounds as the correct command of the rule of 'quota'. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ripping such ad hocist of rights flowing from temporary occupancy. We have earlier dealt with the same submission in a slightly different form and rejected it. Nothing more remains to be said about it. What follows and matters on entry into service is seniority which often settles the promotional destiny of the various brands of incumbents. Naturally, the inter se struggle turns how best to bend the rules to one's good account. Shri Garg criticised the thoughtways apparent in the argument, backed by some rulings, that, quota being delinked from rota, annual intake is the unit for adjusting the seniority among candidates from the two sources. This is an innovation dehors the rule, he says. We do not think so. The question is not whether the year being taken as the unit is the only course but whether there is anything in the rule prescribing Government taking it as the unit or prescribing some other specific unit. It is obvious that the Resolution of 1959 is silent on how to allocate or reckon the quota as also on how to compute 'seniority and Government has a good alibi for taking the year as the unit and length of continuous service as determining seniority. The first is evident f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l depend on the length of continuous officiating service and cannot be upset by later arrivals from the open market save to the extent to which any excess promotees may have to be pushed down as indicated earlier. These formulations based on the commonsense understanding of the Resolution of 1959 have to be tested in the light of decided cases. After all, we live in a judicial system where earlier curial wisdom, unless competently over-ruled, binds the Court. The decisions cited before us start with the leading case in Mervyn Coutindo & Ors. v. Collector of Customs, Bombay ([1966] 3 SCR 600) and closes with the last pronouncement in Badami v. State of Mysore & Ors. ([1976] 1 SCR 815). This time-span has seen dicta go zigzag but we see no difficulty in tracing a common thread of reasoning. However, there are divergencies in the ratiocination between Mervyn Coutindo (Supra) and Govind Dattaray Kelkar & Ors. v. Chief Controller of Imports and Exports & Ors.( [1967] 2 SCR 29) on the one hand and S.G. Jaisinghani v. Union of India([1967] 2 SCR 703) .Bishan Sarup Gupta v. Union of India,( [1975] Supp. SCR 491) Union of India & Ors. v. Bishan Sarup Gupta([1975] 1 SCR 104) and A.K. Subbram ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the words of the Circular 'that seniority as between direct recruits and promotees should be determined in accordance with the roster which has also been specified ... the inextricable interlinking between quota and rota springs from the specific provision rather than by way of any general proposition. Mervyn Coutindo (Supra) cannot therefore rescue the respondents. Nor does the reference to a 'service' being divided into two parts, derived from two sources of recruitment, help Shri Garg's clients. The rule of 'carry forward' struck down in T. Devadasan v. Union of India & Anr.( [1964] 4 SCR 680) has no relevance ,to a situation where the whole cadre of a particular service is divided into two parts. Apart from the fact that it is doubtful whether Devadasan's case survives State of Kerala v.N.M. Thomas & Ors. ([1976] 1 SCR 906) there is no application of the 'carry forward' rule at all in fact-situations where two sources of recruitment are designated in a certain proportion and shortfalls occur in the one or the other category. In such a case, what is needed is conformity to the prescription of the proportion and no. question of carrying anything forward strictly arises. It is tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould not forget that seniority is the manifestation of official experience,--the process of metabolism of service, over the years, of civil servants, by the Administration--and, therefore, it is appropriate that as far as possible he who has actually served longer benefits better in the future. Moreover, the search for excellence receives a jolt from the rule of equality and the State is hard put to it in striking a happy balance between the two criteria without impairment of administrative efficiency. Broadly speaking, the Court has to be liberal and circumspect where the area is trickly or sensitive, since administration by court writ may well run haywire. Moving on, we may start off with the statement that the last case Badami (Supra) lays down the incontrovertibly harmless principle that quotas that are fixed are inalterable according to governmental exigencies. But there, unlike here, no saving provision 'as far as practicable' existed and here post-1966 promotees have to suffer a push down where their appointments are in .excess of. the promotee quota. Nothing directly bearing on our controversy could be discerned by us in that decision. Gupta I (Supra) an off-shoot of Jai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Supra) and going further, has silenced the direct recruits with reference to the precise contention now urged by Shri Garg that rota being imbedded in the womb of the quota system their co-existence could not be snapped. While quota and rota may constitutionally co-exist their separation is also constitutionally permissible, if some 'reasonable' way, not arbitrary whim, were resorted to. Even what is 'reasonable' springs from sort of reflexes manifesting social subconsciousness, as it were. Nothing absolutely valid exists and rationality and justice themselves are relative. Within these great mental limitations, the Court'S observations in Subbaraman (Supra) have to be decided. This brief and quick survey of decided cases, and the submissions considered by us in the judicial crucible, yield the following conclusions, leaving aside the question of 'confirmation' in service which, in the Gujarat set-up, leaves our controversy untouched: (a) The quota system does not necessitate the adoption of the rotational rule in practical application. Many ways of working out 'quota' prescription can be devised of which r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e long run. We direct the State to act quickly. Lack of adequate articulation of simple points regarding rotation and seniority, and the amber light shed by case-law on the questions raised, warrant the direction that parties shall bear their costs throughout. The unlovely impact of these protracted and legalistic proceedings makes us epilogue, an unusual step in a judgment, but pathetically necessitous for the renovation of the judicial process. Law is not a 'brooding omnipotence in the sky' nor a sort of secretariat asoterica known only to higher officialdom. But lengthy legal process, where administrative immediacy is the desideratum, is a remedy worse than the malady. The fact that the present case has taken around 5 working days for oral arguments is a sad commentary on the system, which compels litigents to seek extra-curial forums. Judge Brian Mokenna was right (and the Indian judicial process needs systemic change 'since his wise words apply also to our judicature) when he said: "The fault is that the rules of our procedure which by their discouragement of written argument make possible extensively protracted hearings in op ..... X X X X Extracts X X X X X X X X Extracts X X X X
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