Full Judgment Text
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PETITIONER:
STATE OF GUJARAT
Vs.
RESPONDENT:
A.C. SHAH AND OTHERS
DATE OF JUDGMENT16/03/1993
BENCH:
PUNCHHI, M.M.
BENCH:
PUNCHHI, M.M.
AGRAWAL, S.C. (J)
CITATION:
1994 AIR 1269 1993 SCR (2) 383
1993 SCC Supl. (4) 690 JT 1993 (3) 591
1993 SCALE (2)307
ACT:
Constitution of India, 1950 : Article 136--Appeal--Relevant
facts and circumstances not placed before the High Court
remanding the matter back to High Court for reconsideration.
Civil Service : Gujarat State Public Works
Department--Electrical Engineering Branch--Trifurcation of
Cadres--Promotion to the posts of Deputy Engineers High
Court’s direction to provide criterion for promotion--Quota
rule at the ratio of 2:1--Legality of--Facts and
circumstances not placed before the High Court--Effect of.
HEADNOTE:
The appellant-State by resolution dated 10.7.1972,
trifurcated the services, in the Electrical Engineering
Branch of the Public Works Department into three cadres,
namely, (1) Junior Engineers, (2) Supervisors and (3) Over-
seers, w.e.f. 1.5.1972. At the relevant time there was only
one Overseer and he stood retired. Therefore, In substance
it was a bifurcation between Junior Engineers and
Supervisors the former being graduates and the latter being
diploma holders.
In a writ petition before the High Court exercise of the
State was challenged.
The High Court directed the State to provide for a criterion
for promotion from the three independent cadres, for working
out the trifurcation.
In compliance of the order of the High Court, the appellant
adopted a Resolution dated 26.9.1975 introducing a quota
rule effective from May 1, 1972 at the ratio of 2:1 for
Junior Engineers and Supervisors respectively for promotion
to the posts of Deputy Engineers.
The respondents challenged the trifurcation and also the
quota rule in a writ petition before the High Court.
384
The High Court struck down the ratio of 2:1 holding it to be
unjustified as also the disparity in qualifying service from
both the channels.
Hence this appeal by special leave by the State, being
aggrieved against a mandamus-issued by the High Court not to
impose the ratio of 2:1 while working out the quota rule.
As the appellant was unsuccessful in obtaining a stay of
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operation of the High Court’s judgment, it had to obey the
mandate of the High Court and the ratio of 2:1 could not be
enforced.
This Court on 18.12.1980 ordered the Government to frame a
fresh quota rule consistent with the High Court judgment for
the purpose of making promotions during the pendency of the
appeal and under Article 309 of the Constitution, a Rule was
framed. Earlier the appellant had framed the Deputy
Engineer (Electrical) Recruitment Rules, 1978 under Article
309 of the Constitution, which were not brought to the
notice of the High Court nor the Rules, 1978 were
challenged.
Allowing this appeal, this Court,
HELD:1.01. The matter in the High Court proceeded on the as-
sumption that an executive action of the State was under
challenge. The necessary assumptions and presumptions, well
known to law and the placement of onuses went unnoticed. In
this background and facing the situation so arising the
State Government issued a Notification on April 12, 1982 by
causing a substitution in the earlier Rules of 1978 by
fixing the promotional ratio from both sources at 1:1, but
subjected them to the result of the instant litigation
emerging from this Court. [387D-E]
1.02. The High Court judgment is silent as to the basis on
which it was persuaded to strike down the ratio of 2:1 for
Junior Engineers and Supervisors respectively. The tenor of
the judgment of the High Court does however suggest that the
executive flexibility, with which the Government works could
not justify the fixation of the ratio of 2:1. The High
Court could not and did not substitute what was the right
ratio in the circumstances and left it to the Government to
devise another ratio. Had the factum of the legislation on
the subject i.e. the Rules dated 4.7.1978, been brought to
its notice, perhaps the High Court’s angle of vision would
have been different [387F-G]
385
1.03. The State has no doubt compulsively carried out the
mandate but has done so with reservation so as to meet the
eventuality. No such measure can ever be permanent that
would hold good for all times, to meet not only the present
needs but also future exigencies as well. Hands of the
State cannot be so tied down. ’Mat would be a step
retrograde to the growth and working of a democracy. [387H,
388A]
1.04. It was on the Writ petitioner’s (now respondents) to
lay data before the High Court and bear the onus to show
that the legislative measure was unfair and arbitrary,
violative of Article 14 of the Constitution. No such data
appears to have been placed before the High Court. [388B]
1.05. On these circumstances the case is remanded to the
High Court for reconsideration. [388C]
Roop Chand Adlakha & Om v. Delhi Development Authority &
Ors., [1989] Supp I SCC 116, referred to. [388D]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1749 of 1980.
From the Judgment and Order dated 26.3. 1980 of the Gujarat
High Court in Special Civil Application No. 1606 of 1975.
D.A. Dave, Vimal Dave, R. Karanjawala, Mrs. Manik
Karanjawala, Jitender Singh and P.K Mullick for the
Appellant.
R.R. Goswami, S.K Dholakia, P.H. Parekh, Fazal, H.K Rathod
and S.C. Patel for the Respondents.
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The following Order of the Court was delivered:
The State of Gujarat, the appellant herein, is aggrieved
against a mandamus issued by the High Court of Gujarat on
March 26, 1980 ’in Special Civil Application No. 1606/75
whereby its decision to impose a ratio while working out a,
Quota rule was upset.
The minimum facts are these:-
In the State Public Works Department there was an
Electrical Engineering Branch. By Resolution dated July 10,
1972, the services in the said branch w.e.f May 1, 1972 were
trifurcated on the same pattern as was
386
done in other branches. The result was that the
trifurcation ended into three cadres (1) Junior Engineers,
(2) Supervisors and (3) Over-seers. The compartment of
Over-seers is a surplus-age. There was only one Overseer at
the relevant time and he stood retired. In substance it was
a bifurcation between Junior Engineers and Supervisors, the
former being graduates and the latter being diploma holders.
This exercise of the State Government was challenged in a
writ petition before the High Court in Special Civil
Application No. 1855/73, which was negatived by the High
Court by an order dated 2nd April, 1975. The High Court
directed that in working out the trifurcation the Government
must provide criterion for promotion from the three
independent cadres. In compliance thereof, the State
Government adopted a Resolution dated 26.9.1975 introducing
a quota rule effective from May 1, 1972 at the ratio of 2:1
for Junior Engineers and, Supervisors respectively for
promotion to the posts of Deputy Engineers. The nine
contesting respondents herein preferred a writ petition
being Special Civil Application No. 1606/75 before the High
Court challenging the trifurcation as also the quota rule.
The High Court repelled the challenge in so far as it
related to the trifurcation and the adoption of quota rule
but struck down the ratio of 2:1 holding it to be
unjustified as also the disparity in qualifying service from
both the channels. The High Court concluded as follows:
"We are, therefore, of the opinion that though
it was within the power of the State
Government to bifurcate the unified cadre into
two distinct cadres of Junior Engineers and
Supervisors and though it was within the power
of the State Government to prescribe a quota
for both of them for the purpose of promotion
to the higher posts of a Deputy Engineer there
was no justification for prescribing the quota
of 2:1 and a longer qualifying service for the
Supervisors. Therefore, the promotional rule
which prescribes unequal quota and an unequal
length of qualifying service for Supervisors
for promotion to the posts of a Deputy
Engineer is liable to be struck down."
And accordingly it did by issuing a mandamus.
The State Government of Gujarat when appealing to this Court
was unsuccessful in obtaining a stay of operation of the
impugned judgment.
387
As a consequence it had to obey the mandate of the High
Court which was to the effect that the ratio of 2:1 could
not be enforced. As a result the quota rule went out of
gear. It was left open all the same to the State Government
to make any other rational rule in that behalf. Even this
Court on 18.12.1980, at that juncture, ordered, "Let the
Government frame a fresh quota rule consistent with the High
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Court judgment under appeal for the purpose of making
promotions during the pendency of the appeal.’ Pursuant
thereto, it appears that the State Government was
constrained to introducing of a Rule under Article 309 of
the Constitution. But before we advert to that Rule it
would be relevant to mention that earlier in point of time,
by Notification dated July 4, 1978, Rules known as Deputy
Engineer (Electrical) Recruitment Rules, 1978, were framed
under Article 309 of the Constitution giving a statutory
clothing to the Resolutions dated 10.7.72 and 26.9.75.
Unfortunately, these statutory provisions were not brought
to the notice of the High Court nor were they put to
challenge. The matter in the High Court proceeded on the
assumption that an executive action of the State was under
challenge. The necessary assumptions and presumptions, well
known to law and the placement of onuses went unnoticed. In
this background and facing the situation so arising the
State Government issued a Notification on April 12, 1982 by
causing a substitution in the earlier Rules of 1978
aforementioned by fixing t he promotional ratio from both
sources at 1:1, but subjected them to the result of the
instant litigation emerging from this Court.
We stand deprived of the pleadings of the parties before the
High Court. The pleadings now introduced do not help us.
Significantly, the High Court judgment is silent as to the
basis on which it was persuaded to strike down the ratio of
2:1 for Junior Engineers and Supervisors respectively. The
tenor of the judgment of the High Court does however suggest
that the executive flexibility, with which the Government
works could not justify the fixation of the ratio of 2:1.
The High Court could not and did not substitute what was the
right ratio in the circumstances and left it to the
Government to devise another ratio. Had the, factum of the
legislation on the subject the Rules dated 4.7.1978, been
brought to its notice, perhaps the High Court’s angle of
vision would have been different. The State has no doubt
compulsively carried out the mandate but has done so with
reservation so as to meet the eventuality. No such measure
can ever be permanent that would hold good for all times, to
meet not only the present needs but also future exigencies
as well. Hands of the State cannot to so
388
tied down. That would be a step retrograde to the growth
and working of a democracy. The State is now left to devise
a ratio other than the ratio of 2:1 and cause a variation.
It cannot come to that ratio again. This appears to us an
undesirable situation. It must be left to the State to get
at, it again. Though obeying the mandamus of the High Court
the State must be free to arrive at the original ratio of
2:1. On some basis the Governor of the State appears to
have legislated on the subject. It was on the writ
petitioner’s (now respondents) to lay data before the High
Court and bear the onus to show that the legislative measure
was unfair and arbitrary, violative of Article 14 of the
Constitution. As said before no such data appears to have
been placed before the High Court.
On these circumstances, we are left with no option but to
upset the judgment of the High Court and remand the matter
back to it for reconsideration. In doing so we may set at
rest the controversy regarding difference of length of
qualifying service, from both sources. The controversy does
not survive in view of Roop Chand Adlakha & Ors. v. Delhi
Development Authority & Ors., [1989] Supp. I SCC 116. The
High Court need not advert now to the disparity in length of
qualifying service from the channels of promotion. In the
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meantime, however, status quo needs to be preserved. The
substituted Service Rules of 1982 shall continue to operate
till the decision of the High Court and the promotions, as
before, shall continue, subject to the result of the
judgment of the High Court. In these terms we allow the
appeal and set aside the judgment. The High Court may pass
appropriate orders afresh, after permitting the parties to
amend their pleadings, if necessary, and putting the onus on
the writ petitioners to prove unfairness in the 1978 Rules,
or violation of Article 14 of the Constitution. Since it is
an old matter, we request the High Court to dispose it of as
quickly as possible, preferably within six months. No
Costs.
V.P.R.
Appeal allowed.
389