LexG.K. DUDANI & ORS. ETC. versus S.D. SHARMA & ORS.
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A B c 250 G.K. DUDANI & ORS. ETC. v. S.D. SHARMA & ORS. APRIL 6, 1986 [R.S. PATHAK, A.P. SEN AN~ D.P. MADON, JJ.] Bombay Civil Service Rules, 1959, Rule 9 - 'Cadre' - . ~ Definition of - Temporary and permanent post - Difference between Temporary post - Whether can be held in substantive capacity • . Bombay Reorganisation Act, 1960, ss. 80 and 82 - lnter-se seniority between direct recruits/promotees to the cadre of Deputy Collector - Gujarat Civil Service Class I and • Cluss 11. + D Code of Civil Procedure, 1976, s.11 - Principle of res- E F G judicata - Whether applicable to writ petitions under Article 226. The dispute in these appeals relates to the inter se seniority between the direct-recruits and promotees-u;-the cadre of Deputy Collectors formerly designated as 'Bombay Civil Service Executive Branch : Deputy Collectors (Upper Division)' and now designated as "Gujara~ Civil Service Class I and Class II". In the predecessor Province of Bombay the source of recruitment to the posts of Deputy Collectors used ~j to be Mamlatdars who were promoted as Deputy Collectors. In 1939, direct recruitment policy was also introduced for this post, but during the years 1950 to 1959 the scheme of direct recruitment to the cadre of Deputy Coll~ctors was discontinued. However, the Bombay Government by its Resolution dated 30.7.59 again revived the scheme of direct recruitment i .. and fixed the ratio of appointment by the direct recruits and the promotees as 50:50 as far as practicable. • On 1. 5.1960 the Bombay State was bifurcated into Gujarat . Y and Maharashtra. During the period 1960-62 no direct-recruits were appointed to the posts of Deputy Collectors due to administrative difficulties and 61 Hamlatdars were promoted to H those posts. However, since 1963 onwards, the direct-recruits G.K. DUDANI v. S.D. SHARMA 251 A ,+.also came to be appointed. The Government of Qijarat issued on Dec. 12, 1971 a seniority list as on Jan. 1, 1971. The list of the prOlllOtees was prepared on the basis of their continuous length of service and the list of the direct-recruits was prepared on the basis of the dates of their respective appointments. A combined seniority list showing s~niority inter se between the promotees and the direct-recruits was also p;;pared. The direct-recruits challenged the aforesaid B -"ir seniority list before the High Court and the matter ultimately came up before the Supreme Court in N.K. Chauhan and Ora. v. State of Qijarat and Ora., (1977) 1 S,C,R, 1037, The Supreme Court, after discussing the case law, sumned up its conclusions and gave the requisite directions for reframi.ng c } inter !!!_ seniority as under : ~.~ a. The quota syste. does not necessitate the adopticm of the rotaticmal · rule in practical applicaticm. Many ways of working out 'quota' prescription can be devised of which rota is certainly one. b. While laying down a quota when filling up vacancies in a cadre fa. more than cme source, it is open to Govenmmt, subject to tests under Art. D 16 to choose 'a year' or other period or the E vacancy by vacancy basis to work out the quota llllDllg the sources. But once the court is satisfied, examining for constitutionality the method proposed, that there is no invalidity, administrative technology may have free play in choosing one or other of the familiar processes of F implementing the quota rule. c. Seniority, nomall.y is -ured by length of CCHltfD!l(JQ8, officiating service - The actual is easily accepted as the legal. This does not preclude a different prescription, constitutionally G tests being satisfied. do A periodisation is needed in the case to settle rightly . the relative claims of promotees and direct recruits.- 1960-62 form period A and 1962 omards form period B. Promteea regu!Uly H 252 A B SUPREME COURT REPORTS [1986] 2 s.c.R. appointed during period A in eveBB of their quota, +- for want of direct recruita (reasonably sought but not secured and because tarrying longer would injure the administration) can clafa their whole length of service for seniority even against direct recruits wbo may turn up in succeeding periods. e. Prc.>tees who have been fitted into vacancies beyond their quota during the period B - the year-.-- being regarded as the unit - must suffer survival as invalid appointees acquiring new life when vacancies in their quota fsl
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