Vora & Ors Vs. State of Gujarat & Ors  INSC 296 (27 October 1987)
RANGNATH MISRA RANGNATH RANGNATHAN, S. CITATION: 1987 AIR 2348 1988 SCR (1) 611
1988 SCC (1) 311 JT 1987 (4) 179 1987 SCALE (2)835
INFO : R 1988 SC 294 (4) C 1989 SC1794 (3)
matter of government employees in the Gujarat Subordinate Secretariat
Service-Gujarat Subordinate Secretariat Service-(Seniority of Assistants)
The appellants had joined the government service as clerks-cum-typists before
the bifurcation, in May, 1960, of the State of Bombay into Maharashtra and
Gujarat States. The Subordinate Secretariat Service then consisted of four
grades-(i) Clerk-cum-typist, (ii) Junior Assistant, (iii) Senior Assistant, and
(iv) superintendent. On the formation of Gujarat State, Government business in
the secretariat was divided into nine separate Departments so far as the
Subordinate service was concerned. Later, by a government Resolution, a common
cadre of Superintendents for all the departments was created, and promotion to
the post of the Superintendent was directed to be made out of a common list of
senior assistants, and by another resolution, the grades of the senior
assistants and junior assistants were merged into one post termed as Assistant,
and a common seniority list of the Assistants was prepared. In October, 1974,
by another Resolution, a common cadre of the clerks-cum-typists was created and
promotion to the post of Assistant was provided there from. This October
Resolution of the government was challenged before the High Court by two writ
petitions. In the meantime, the Gujarat Subordinate Secretariat Service
(Seniority of Assistants) Rules, 1977, were framed, which were to come into
operation with retrospective effect from May, 1960. Rule 4 of the Rules laid
down the principle for determining seniority by providing that seniority among
promotees-Assistants inter se shall be fixed on the basis of their length of
service in the joint cadre of clerk-cum-typist for all Departments of the
Secretariat as a whole.
High Court passed an order, dismissing the two writ petitions. The order of the
High Court is appealed against by Special Leave in this Court, mainly on the
ground that the retrospective operation of the Rules regarding seniority takes
away the vested rights of the appellants of their prospects of promotions.
the appeal, the Court, 612 ^
A Common cadre was created for increasing efficiency A and in the interests of discipline.
After the formation of the common cadre, general feeling of dissatisfaction
owing to disparity of seniority was generated. The 1977 rules were introduced
to ease that situation. The scheme of the Rule regarding seniority protected
the rank then held by every member of the service notwithstanding the
alteration of seniority on the new basis. To that extent, the 1977 rules were
not retrospective. [615B-C] There was no challenge to the creation of the
common cadre. Secondly, the rules of seniority are a matter for the employer to
frame, and even though the prospects of promotion were likely to be prejudiced
by the introduction of some new set of rules to regulate seniority, if the
rules were made bona fide to meet the exigencies of the service, no entertainable
grievance could be made, and the appellants have no grievance to make. [615E-FI
Mervyn v. Collector of Customs, Bombay and others,  3 S.C.R.600; Roshan
Lal Tandan v. Union of India, 1 S.C.R.185 and State of Jammu &
Kashmir v. Triloki Nath Khosa & others,  I S.C.R. 771, relied upon.
Appellate Jurisdiction: Civil Appeal No. 712 F. Of 1980.
the Judgment and order dated 20.12.1978 of the Gujarat High Court in Special
C.A. No. 1()73 of 1975. V.M. Tarkunde, Dr. D.Y. Chandrachud, S. Bharatari and
P.H. Parekh for the Appellants.
Poti, M.N. Shroff, K.M.M. Khan and Mrs. H. Wahi for the Respondents.
Judgment of the Court was delivered by RANGANATH MISRA, J. This appeal by
special leave is directed against the judgment of the Gujarat High Court in a
dispute centered round seniority of government employees in the Gujarat Sub
ordinate Secretariat Service.
short facts necessary for disposal of the two contentions raised in this appeal
are the following:
On May 1, 1960, the State of Bombay was bifurcated into two States Maharashtra
and Gujarat. Prior to that date the six appellants in this appeal had joined
Government service as Clerks-cum-typists. The Subordinate Secretariat Service
was then divided into four grades (i) Clerk-cum-typist (ii) Junior Assistant
(iii) Senior Assistant and (iv) Superintendent. Promotions were available from
the lower tier to the upper one. When Gujarat became a separate State
Government business in the Secretariat was divided into 9 departments separate
in every respect so far as the Subordinate service was concerned. On October
12, 1960, by a Government Resolution the cadre of Superintendents became a
common one covering all the departments in the Secretariat.
then seniority was being determined department wise and promotions had also
been regulated on the same basis in all the four grades. Under the new
arrangement promotion to the post of Superintendent was handled by the General
Administration Department out of a common list of Senior Assistants. On
September 25, 1964, under another resolution of Government the grades of Junior
Assistants and Senior Assistants were merged into a single one known as
Assistants W.E.F. October 1, 1964, and a common seniority list of Government servants
working as Assistants was prepared. A quota system was introduced for
recruitment of Assistants.
one state, the ratio was 3: 1, promotees being the smaller proportion and later
it was changed to 2: 1. On July 19, 1969, a seniority list of Assistants was
prepared on quota basis and taking into account continuous officiation in the
cadre of Assistants. The list was assailed before the High Court. The court
found by judgment dated March 9, 1972 that promotees were in excess of the
ratio and accordingly gave direction for a fresh list to be drawn up. On
October 11, 1974, Government resolved to have a common cadre of
Clerk-cum-typist and promotion to the post of Assistant was provided therefrom.
In 1975, the October Resolution of Government was challenged before the High
Court by filing two writ petitions. In the meantime, in 1977, a set of rules
known as the Gujarat Subordinate Secretariat Service (Seniority of Assistants)
Rules, 1977 were framed under the proviso to Article 389 of the Constitution with
retrospective effect from May 1, 1960. Rule 4 of the Rules laid down the
principle for determining seniority by providing that seniority among the
promotees Assistants inter se shall be fixed on the basis of their length of
service in the joint cadre of Clerk-cum-typist for all departments of the
Secretariat as a whole. In December, 1978, the two writ petitions were
dismissed. The High Court held that the object of the Rules of 1977 was to
equalise the chances of promotions to the selection cadre and since the rules
took care of the promotee officers by ensuring non-reversion, the rules were
indeed not retrospective. H 614 Several consequential dircctions were given. It
is this judgment which is now under appeal.
main contention advanced by Mr. Tarkunde in the appeal is that the rule
regarding seniority is retrospective in operation and takes away the vested
right of the appellants to prospects of promotions. In support of his
submission he has relied upon three decisions of this Court, namely, Mervyn v.
Collector of Customs, Bombay & Ors.,  3 SCR 680; Roshan Lal Tandan v.
Union of India, [ 1968] 1 SCR 185 and State of Jammu & Kashmir v. Triloki
Nath Khosa & ORS., l 1974] 1 SCR 77 1. Each one of these is a decision of
the Constitution Bench. We do not find that on facts any of these cases has any
support to offer for the point in dispute. Mervyn's case was that of Appraisers
of the Customs Department and challenge was to the validity of the rotational
system in fixing the seniority of Principal Appraisers. The Court struck down
the method used by Government in fixing the seniority of Principal Appraisers
on a finding that there was denial of equality of opportunity. The dispute in
this case is different from what came in Mervyn case for determination. This
will be apparent when we presently deal with what exactly is the problem in the
matter before us. Roshan Lal's case dealt with recruitment into one cadre from
two sources. Even when recruitment from the two sources merged into one cadre, favourable.
treatment was given to recruits from one source regarding further promotion.
The Court found this to be violative of Articles 14 and 16 of the Constitution.
This again is not relevant for resolving the dispute in hand.
Nath's case was dealing with the Engineering Service of Jammu & Kashmir.
There was direct recruitment of decree- holders in civil engineering as also-
by transfer of degree or diploma-holders who had served as Supervisors for a
period of not less than 5 years for recruitment to the cadre of Assistant
Engineers. The relevant rule provided that recruitment to the post of Executive
Engineers and above was to be made by promotion only and Assistant Engineers
who possessed a degree in engineering alone were eligible for such promotion. This
rule, therefore, disqualified diploma holders for being promoted as Executive
Engineers and they challenged the constitutionality of the rule by contending
that it was discriminatory. The Court found that even after there was one
cadre, for the promotional post there from, a higher qualification could be
prescribed and those out of the common cadre who satisfied that requirement
could be made eligible for promotion.
we have already pointed out in the instant case the State decided at stages to
switch over to the common cadre in respect of all the four grades of the
Subordinate Service. Before common grades 615 had been formed promotion was
granted department wise. When ultimately a common cadre came into existence-and
all that was done by 1974-it was realised that if seniority as given in the
respective departments were taken as final for all purpose there would be
prejudice. Undoubtedly the common cadre was for the purpose of increasing the
efficiency by introducing a spirit of total competition by enlarging the field
of choice for filling up the promotional posts and in the interest of
discipline too. After a common cadre was formed, the general feeling of
dissatisfaction on account of disparity of seniority became apparent. The 1977
Rules were introduced in this background to ease the situation. The scheme of
this rule protected the rank then held by every member of the service
notwithstanding alteration of seniority on the new basis. This, therefore, made
it clear that accrued benefits were not to be interfered with. To that extent
the 1977 Rules were not retroactive. In spite of the protection of Rule
regarding the post then held, the Rules brought about a change in the inter se
seniority by adopting the date of initial recruitment and the length of service
became the basis for refixing seniority. Total length of service for such
purpose is a well-known concept and could not said to be arbitrary. Undoubtedly
one of the consequences of the change in the basis was likely to effect
prospects of promotion-a matter in future. Two aspects have to be borne in mind
while considering the challenge of the appellants to this situation. It was a
historical necessity and the peculiar situation that arose out of Government's
decision to create a common cadre with four grades in the entire Secretariat.
We would like to point out with appropriate emphasis that there was no
challenge to creation of the common cadre and certainly Government was
competent to do so. The second aspect to be borne in mind is that rules of seniority
are a matter for the employer to frame and even though prospects of promotion
in future were likely to be prejudiced by introduction of a new set of rules to
regulate seniority, if the rules were made bona fide and to meet exigencies of
the service, no entertainable grievance could be made. If these are the tests
to apply, we do not think the appellants have indeed any grievance to make. In
our view, therefore, the High Court rightly dismissed the contention and found
that appellants were not entitled to relief Mr. Tarkunde next urged about the
quota. We find that the High Court has not dealt with the question. We do not
propose to go into that aspect.
accordingly dismiss the appeal but leave parties to bear their own costs