Full Judgment Text
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PETITIONER:
G.K. DUDANI & ORS. ETC.
Vs.
RESPONDENT:
S.D. SHARMA & ORS.
DATE OF JUDGMENT06/04/1986
BENCH:
MADON, D.P.
BENCH:
MADON, D.P.
PATHAK, R.S.
SEN, A.P. (J)
CITATION:
1986 AIR 1455 1986 SCR (2) 250
1986 SCC Supl. 239 1986 SCALE (1)1374
CITATOR INFO :
R 1987 SC 716 (13)
ACT:
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 Inter-se
seniority between direct recruits/promotees to the cadre of
Deputy Collector - Gujarat Civil service Class I and Class
II.
Code of Civil Procedure, 1976, s.11 - Principle of res
judicata - Whether applicable to writ petitions under
Article 226.
HEADNOTE:
The dispute in these appeals relates to the inter se
seniority between the direct-recruits and promotees to the
cadre of Deputy Collectors formerly designated as ’Bombay
Civil service Executive Branch : Deputy Collectors (Upper
Division) ’ and now designated as "Gujarat Civil Service
Class I and Class II". In the predecessor Province of Bombay
the source of recruitment to the posts of Deputy Collectors
used 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
Collectors was discontinued. However, the Bombay Government
by its Resolution dated 30.7.59 again revived the scheme of
direct recruitment 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 and Maharashtra. During the period 1960-62 no
direct-recruits were appointed to the posts of Deputy
Collectors due to administrative difficulties and 61
Mamlatdars were promoted to those posts. However, since 1963
onwards, the direct-recruits
251
also came to be appointed. The Government of Gujarat issued
on Dec. 12, 1971 a seniority list as on Jan. 1, 1971. The
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list of the promotees was prepared on the basis of their
continuous length of service and the list of the direct-rec
Nits was prepared on the basis of the dates of their
respective appointments. A combined seniority list showing
seniority inter se between the promotees and the direct-rec
Nits was also prepared. The direct-rec Nits challenged the
aforesaid seniority list before the High Court and the
matter ultimately came up before the Supreme Court in N.K.
Chauhan and Ors. v. State of Gujarat and Ors., [1977] 1
S.C.R. 1037. The Supreme Court, after discussing the case
law, summed up its conclusions and gave the requisite
directions for reframing inter se seniority as under :
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 rota is
certainly one.
b. While laying down a quota when filling up
vacancies in a cadre from more than one source, it
is open to Government, subject to tests under
Art. 16 to choose ’a year’ or other period or the
vacancy by vacancy basis to work out the quota
among 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
implementing the quota rule.
c. Seniority, normally is measured by length of
continuous, officiating service - The actual is
easily accepted as the legal. This does not
preclude a different prescription,
constitutionally tests being satisfied.
d. A periodisation is needed in the case to settle
rightly the relative claims of promotees and
direct recruits.- 1960-62 forms period A and 1962
onwards forms period B. Promotees regularly
252
appointed during period A in excess of their
quota, for want of direct recruits (reasonably
sought but not secured and because tarrying longer
would injure the administration) can claim their
whole length of service for seniority even against
direct recruits who may turn up in succeeding
periods.
e. Promotees who have been fitted into vacancies
beyond their quota during the period - the year
being regarded as the unit - must suffer survival
as invalid appointees acquiring new life when
vacancies in their quota fall to be filled up. To
that extent they will step down, rather be pushed
down as against direct recruits who were later but
regularly appointed within their quota."
The Government of Gujarat accordingly prepared a
seniority list pursuant to the directions given by the
Supreme Court in Chauhan’s case. The direct recruits and the
promotees again filed writ petitions before the Gujarat High
Court challenging the aforesaid seniority list. The main
contention of the direct recruits before the High Court was
that there were only 30 substantive vacancies in the
permanent strength of the Deputy Collectors cadre and the
balance of 31 vacancies was in the temporary posts created
by the said Government or ex-cadre posts and consequently
the 31 promotees could not be deemed to be regularly
appointed as required by direction ’d’ given in Chauhan’s
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case. On the other hand, the promotees contended that quota
was not distributed on the basis of actual or utilised
vacancies but only the filled up vacancies of the officers
who had continued to officiate till retirement or death.
Accepting the contention of the direct recruits, the
Division Bench of the High Court observed that the officers
promoted during the period ’A’ to the posts of Deputy
Collectors fell in four categories, namely,
(i) Promotees appointed to substantive vacancies
in the cadre of Deputy Collectors.
(ii) Promotees appointed to hold ex-cadre posts.
(iii) Promotees appointed to temporary posts cadre
posts or ex-cadre posts.
253
(iv) Promotees who were first placed on conditional
select list during period ’A’ and were placed on
unconditional select list after their performance was found
satisfactory.
The High Court held: (a) that the promotees falling
under category No. (1) in excess of their quota would be
senior to subsequently appointed direct recruits in
accordance with their length of continuous officiating
service; (b) that so far as the last category is concerned,
the Mamlatdars were placed on a conditional select list and
were appointed to hold the posts of Deputy Collector and if
their performance was found satisfactory during the trial
period, they would be confirmed in those posts and that such
confirmation had nothing to do with the length of continuous
officiating service of such Mamlatdars and that it was the
placement of the Mamlatdars on the select list which was
material. As regards the second and the third categories,
the Division Bench held that the expression "promotees
regularly appointed during the period A in excess of their
quota" had a direct reference to promotees regularly
appointed in substantive vacancies which occurred in the
cadre of Deputy Collector between 1960 and 1962 and that
reading the principle laid down in the direction ’D’ in
Chauhan’s case in the light of the Government Resolution of
1959, promotees appointed in substantive vacancies which
occurred in the cadre of Deputy Collectors during the period
’A’ in excess of their quota could alone gain seniority over
the direct recruits in terms of the principle of the length
of continuous officiating service and that those who were
promoted to the posts of Deputy Collectors for being
appointed to ex-cadre posts could not be said to be
regularly appointed because their appointments were not in
substantive vacancies in terms of the said Government
Resolution and that the seniority of those who were so
promoted had to be determined from the date on which they
were appointed to fill the substantive vacancies in the
cadre of Deputy Collectors and, therefore, those who were
promoted to the posts of Deputy Collectors for being
appointed to hold temporary posts could not be said to have
been "regularly appointed" within the meaning of the
decision in Chauhan’s case.
Allowing the appeal of the State in full and that of
the promotees-appellants in part,
254
^
HELD : 1.1 The judgment of the Division Bench of the
High Court in so far as it held that "promotees appointed to
ex-cadre posts" and "promotees appointed to temporary posts,
cadre posts or ex-cadre posts" were not regularly appointed
during period A and, therefore, were not covered by
direction (d) in Chauhan’s case, was clearly wrong and is
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hereby reversed. [275 E-F]
1.2 It was not open to the direct recruits to contend
before the High Court that promotees appointed to hold ex-
cadre posts and temporary posts, whether cadre posts or ex-
cadre posts, were not regularly appointed during period ’A’
And the High Court after perusing Chauhan’s case was in
error in permitting them to raise this contention. This
contention had been raised by the direct recruits in their
earlier writ petition, namely, Special Civil Application No.
1401 of 1972 and the learned Single Judge of the High Court
had rejected this contention and had held that the
appointments of the promotees between 1961 and 1963 were
regular. The Division Bench of the High Court also did not
disturb this finding nor was this finding upset by the
Supreme Court in Chauhan’s case. [272 B-E]
1.3 Although by reason of the Explanation which was
inserted in s. 141 of the Code of Civil Procedure by the
Code of Civil Procedure (Amendment) Act 1976, s. 11 of the
Code does not in terms apply to any proceeding under Art.
226 of the Constitution, the principle of res judicata does
apply to all writ petitions under Art. 226. This point was,
therefore, barred by the principle of res judicata and
should never have been allowed by the High Court to be
reagitated. [272 F-H]
2. The interpretation placed by the Division Bench upon
the words "promotees regularly appointed" in direction (d)
in Chauhan’s case was wholly erroneous. Under the guise of
interpreting the judgment in that case, the Division Bench
of The High Court virtually sat in appeal over the judgment
of the Supreme Court and modified it. The High Court ought
to have taken the words in that judgment in the sense in
which they were used and ought to have applied them to the
facts before it, instead of trying to put words in the mouth
of the Supreme Court. The Division Bench ignored the fact
that the Supreme Court had categorically held that in the
case before it the appointments had been regularly made in
accordance with
255
the rules to fill substantive vacancies. Further, copies of
the relevant Gazette notifications clearly bear out not only
this fact but also show that the appointments of these
promotees were regularly made. [273 A-C]
In the instant case, the record shows that during
period ’A’ there were thirty vacancies in permanent posts
and thirty-one vacancies in temporary additional posts.
These thirty-one posts were created initially for a period
of one year but renewed from year to year from 1960 onwards
and have been in existence continuously since then. These
temporary additional posts were, therefore, not fortuitous
posts created for the purpose of special tasks but formed an
integral part of the regular cadre, and appointments to
those posts were made from the approved select list of
Mamlatdars prepared in consultation with the Gujarat Public
Service Commission. [273 D-F]
3.1 Rule 9(8) of the Bombay Civil Service Rules, 1959,
defines "cadre" as meaning the strength of a service or a
part of service sanctioned as a separate unit. The service
of Deputy Collectors is admittedly a separate unit under the
Revenue Department. A cadre consists of permanent posts and
temporary posts added to the cadre from time to time
according to the exigencies of the service. The difference
between permanent and temporary posts is brought out by the
definition of these expressions given in Rule 9. Under Rule
9(43), a permanent post is a post carrying a definite rate
of pay sanctioned without limit of time and under Rule 9(56)
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a temporary post is a post carrying a definite rate of pay
sanctioned for a limited time. Rule 71 sets out the manner
of fixation of pay of the officer appointed to a temporary
post. Even officers holding permanent posts are often
deputed to hold an ex-cadre post. It was, therefore,
immaterial whether these promotees after being appointed
Deputy Collectors were deputed to hold an ex-cadre post or
not. [273 F-H; 274 A]
3.2 The position that a temporary post can be held in a
substantive capacity is now firmly established by the
decisions of the Supreme Court. All persons holding
substantive posts or temporary posts in substantive capacity
are members of the service. A person can be said to hold a
post, permanent or temporary, in a substantive capacity only
if his appointment to that post is not fortuitous or ad hoc.
[275 B-E]
256
Baleshwar Dass & Ors. etc. v. State of U.P. and Ors.
etc., [1981] 1 S.C.R. 449 and O.P. Singla and Anr. v. Union
of India & Ors., [19841 4 S.C.C. 450, relied upon.
Ramchandra Shankar Deodhar and Ors. v. The State of
Maharashtra & Ors., [1974] 2 S.C.R. 216 and N.K. Chauhan and
Ors. v. State of Gujarat & Ors., [1977] 1 S.C.R. 1037,
referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2359 of
1980.
From the Judgment and Order dated 18/19th March, 1980
of the Gujarat High Court in Spl. Application Civil No. 2199
of 1978.
AND
Civil Appeal No. 1816 of 1980.
From the Judgment and Order dated 18/19th March, 1980
of the Gujarat High Court in Spl. Civil Application No. 1407
of 1978.
P.H. Parekh and Ms. Indu Malhotra for the Appellants in
C.A. No. 2359 of 1980.
G.A. Shah and R.N. Poddar for the Appellants in C.A.
No. 1816/80 and for Respondent No.5 in C.A. 2359/80.
Rajiv Dutt for Respondent No. 3 in both the appeals.
S.K. Dholakia, P.C. Kapoor, B.S. Gupta and R.C. Bhatia
for Respondents 1, 2 and 4 in both the appeals.
G.A. Shah for the State of Gujarat.
The Judgment of the Court was delivered by
MADON, J. On January 26, 1950, when the Constitution of
India came into force, under Article 1 read with the First
Schedule to the Constitution, India became a Union of States
257
consisting of nine Part A States, nine Part States and ten
Part States. Under Article 3, Parliament has the power by
law to form a new State by separation of territory from any
State or by uniting two or more States or parts of States or
by uniting any territory to a part of any State; increase
the area of any State; diminish the area of any State; alter
the boundaries of any State; or alter the name of any State.
By reason of repeated reorganizations of States, the Union
of India today consists of twenty-two States and nine Union
territories and it is difficult to visualize when this
process of fragmentation of India will end and the practice
of sacrificing the sense of oneness in being an Indian on
the alter of parochial and linguistic chauvinism will stop.
These reorganizations have resulted in benefit to some,
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detriment to others and bewilderment to many. Each
reorganisation has brought in its wake a host of problems
mostly relating to those in services of the States, many of
them still unsolved.
We are concerned in these Appeals only with the
reorganization effected by the Bombay Reorganization Act,
1960 (Act No. 11 of 1960), which divided the State of Bombay
into the State of Maharashtra and the State of Gujarat. At
the commencement of the Constitution, the territory of the
State of Bombay comprised the territories which before the E
commencement of the Constitution were comprised in the
Province of Bombay. Saurashtra was then a Part State and
Kutch a Part State. Under the States Reorganization Act,
1956 (Act No. 37 of 1956), certain territories of the State
of Bombay were transferred to other States, parts of the
territories of the State of other States were transferred to
the State of Bombay and the territories of the State of
Saurashtra and the State of Kutch were comprised in the new
State of Bombay which emerged as a result of this
reorganization. Part X of this Act consisting of sections
114 to 118 made provisions with respect to All-India Service
and other services. Section 115 made provisions relating to
other services. Under it, allotment of personnel of the
State Services serving in a reorganized State as existing on
the date of the reorganization of States was to be made
either to a successor state or to the original State in the
manner provided therein.
Each Act providing for reorganization of States
contains similar provisions. Thus, a transfer of territories
results in
258
a transfer of service personnel. Those who have been so
transferred have found themselves higher or lower in
seniority in the same cadre than in their original State.
The question of corresponding posts and "the deemed date of
appointment" has been a knotty one and much administrative
ingenuity has been applied in unravelling the tangle created
by political expediency. Solutions to this question have
resulted in giving an advantage to some in promotional
matters while the hopes of promotion of others have
foundered between the Scylla of political expediency and the
Charybdis of administrative ingenuity. Subsequent
reorganizations involving the same States have led to these
problems multiplying like Pelion piled on Ossa. The second
reorganization of the State of Bombay by the Bombay
Reorganization Act, 1960, has not proved an exception to
this rule and the problems raised by it have reached this
Court but even the judgments of this court have failed to
provide a final solution as is illustrated by the present
Appeals.
As we are concerned in these Appeals with services
other than All India Services, we need refer only to those
provisions of the Bombay Reorganization Act which concern
these services. Sub-sections (1) to (3) and (6) of Section
81 of the said Act provides as follows :
81. Provisions relating to other services. ---
(1) Every person who, immediately before the
appointed day, is serving in connection with the
affairs of the State of Bombay shall, as from that
day, provisionally continue to serve in connection
with the affairs of the State of Maharashtra,
unless he is required, by general or special order
of the Central Government, to serve provisionally
in connection with the affairs of the State of
Gujarat.
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(2) As soon as may be after the appointed day, the
Central Government shall, by general or special
order, determine the State to which every person
provisionally allotted to the State of Maharashtra
or Gujarat, shall be finally allotted for service
and the date with effect from which such allotment
259
shall take effect or be deemed to have taken A
effect.
(3) Every person who is finally allotted under the
provisions of sub-section (2) to the State of
Maharashtra or Gujarat shall, if he is not already
serving therein, be made available for serving in
that State from such date as may be agreed upon
between the two State Governments or, in default
of such agreement, as may be determined by the
Central Government.
x x x x
(6) Nothing in this section shall be deemed to
affect, after the appointed day, the operation of
the provisions of Chapter I of Part XIV of the
Constitution in relation to the determination of
the conditions of service of persons serving in
connection with the affairs of the State of
Maharashtra or Gujarat :
Provided that the conditions of service applicable
immediately before the appointed day to the case
of any person provisionally or finally allotted to
the State of Maharashtra or Gujarat under this
section shall not be varied to his disadvantage
except with the previous approval of the Central
Government."
Section 82 of the said Act provides as follows :
"82. Provisions as to continuance of officers in
same post.
Every person who, immediately before the appointed
day, is holding or discharging the duties of any
post or office in connection with the affairs of
the State of Bombay in any area which on that day
falls within the State of Maharashtra or Gujarat
shall continue to hold the same post or office in
that State and shall be deemed, as from that day,
to have been duly appointed to the post or office
by the Government of, or other appropriate
authority in, that State :
260
Provided that nothing in this section shall be
deemed to prevent a competent authority, after the
appointed day, from passing, in relation to such
person, any order affecting his continuance in
such post or office."
Under section 87, all laws which were in force in the
territories of the State of Bombay prior to the coming into
force of the said Act continue to apply both in the State of
Maharashtra and the State of Gujarat until otherwise
provided by a competent Legislature or other competent
authority. The term ’law’ is defined in clause (d) of
section 2 as follows :
"(d) ’law’ includes any enactment, ordinance,
regulation, order, bye-law, rule, scheme,
notification or other instrument having
immediately before the appointed day, the force of
law in the whole or in any part of the State of
Bombay".
Under clause (a) of section 2 the expression "appointed day"
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means "the 1st day of May, 1960".
The dispute in these Appeals relates to the inter se
seniority between the direct recruits and promotees to the
cadre of Deputy Collectors formerly designated as "Bombay
Civil Service Executive Branch : Deputy Collectors (Upper
Division)" and now designated as "Gujarat Civil Service
Class I and Class II". mis cadre is recognized for
recruitment to the Indian Administrative Service by the
relevant Recruitment Rules.
The State of Bombay prior to its division into the
State of Maharashtra and the State of Gujarat, for purposes
of revenue administration, was divided into divisions which
were separate units for promotional prospects, incidence of
transfer, etc., of Deputy Collectors. In the predecessor
Province of Bombay, the source of recruitment to these posts
used to be Mamlatdars who were transferred to these posts by
promotion. In 1939 a different recruitment policy was
evolved and suitable candidates were directly recruited. The
creation of two sources of appointment to the cadre of
Deputy Collector required a rule to be framed to determine
the inter se seniority between the promotees and the direct
recruits.
261
Accordingly, the Government of Bombay, Political & Service
Department, issued a Resolution dated November 21, 1941. The
1941 Resolution provided as follows :
"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 date of their
promotion to the substantive vacancies, provided
there has been no break in service prior to their
confirmation in those vacancies."
Thereafter, the promotee officers through their
Association made a representation to the Government that
since direct recruits were confirmed immediately on the
expiration of their probation and promotees were not so
confirmed, it would adversely affect their prospects of
promotion. By its reply dated January 11, 1949, the
Government replied to the said Association as under :
"Confirmation of direct recruits to the cadre
Collectors :
The officers appointed by direct recruitments and
those appointed by promotion are confirmed in
vacancies reserved for their respective classes.
If, therefore, a clear vacancy in the cadre of
Deputy Collectors reserved for a direct recruit
occurs earlier, it is natural that such a recruit
should be confirmed earlier. The seniority of such
a direct recruit vis-a-vis a promoted officer is
not, however, determined according to the date of
confirmation but according to the principles laid
down in Government Resolution, Political and
262
Services Department No. 4283/34 dated the 21st
November 1941 i.e. with references to the date of
first appointment on probation in the case of the
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direct recruit and of continuous officiation in
the case of the promoted officers. The promoted
officers, therefore, can have no grievance in this
behalf."
From 1950 until 1954 the scheme of direct recruitment
to the cadre of Deputy Collectors was abandoned but it was
again revived in 1959 by a Resolution dated July 30, 1959,
issued by the Government of Bombay, Revenue Department. The
said Resolution was as follows :
"Government had for sometime under consideration
the question of reviving the system of direct
recruitment to the cadre of Deputy Collectors. It
has now been decided that in the interest of
administration the revival of that system is quite
necessary. Government is accordingly pleased to
cancel the orders contained in Government
Resolution No. 9313/45, dated 6th February, 1950
and those in Government Resolution No. 9313/45,
dated the 24th July 1951, in so far as they relate
to the recruitment of Bombay Civil Service
Executive Branch Deputy Collectors (Upper
Division) and to direct that as far as
practicable, 50 per cent of the substantive
vacancies occurring in the cadre with effect from
1st January, 1959 should be filled in by
nomination of candidates to be selected in
accordance with the rules appended herewith.
2. The Political and Services Department should be
requested to issue necessary correction slips to
the Bombay Civil Services Classification and
Recruitment Rules."
The rules appended to the said Resolution dated July 30,
1959, were called the "Recruitment Rules for the Posts of
Deputy Collectors". Rule 1 is as follows :
263
" Appointment to the posts of Deputy Collectors
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 :
Provided further that half the vacancies reserved
for appointment by promotion shall be filled by
directly recruited Mamlatdars who have put in at
least seven years service in the posts including
the period spent on probation." C
Rule 2 provided for appointment by nomination. Such
nomination was to be made on the result of a competitive
examination to be held by the State Public Service
Commission in accordance with the rules in respect thereof
appended as Annexure I to the Recruitment Rules. The said
Rule 2 also prescribed the qualifications for candidates
desiring to appear in the said examination. Amongst the
qualifications so prescribed was that the candidates should
"possess adequate knowledge of Marathi or Gujarati." Rules 3
and 4 of the Recruitment Rules were as follows :
"3. Candidates appointed by nomination shall be on
probation for a period of two years, the probation
being regulated according to the rules appended
hereto as Annexure II.
4. After appointment as Deputy Collector, whether
by nomination or by promotion, the selected
candidate will have to pass the prescribed
examinations in Hindi and in a regional language
according to the prescribed rules."
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Following upon the reorganization of the States,
Revenue Divisions were abolished and by a Circular of the
Government of Bombay dated February 3, 1960, the legal
fiction of "deemed dates on the commencement of service" for
the purpose of inter se seniority of personnel drawn from
different pre-reorganization States and from the Division
was abolished. The Circular
264
applied to all the services and consequently the cadre of
Deputy Collectors stood converted into a State-wide cadre.
On the State of Gujarat coming into existence a similar
notification was issued by the Government of Gujarat on May
1, 1960. Thereafter, the Government of Gujarat issued
another circular dated May 27, 1960. The said circular is as
follows :
"Doubts have arisen as respects the directions
given under Government Circular No. GSF-1060 dated
the 1st May, 1960.... To remove any doubt in that
behalf, therefore, Government is pleased to direct
that the following Explanation shall be and shall
be deemed always to have been added to the said
circular, namely -
Explanation. - Nothing herein shall apply to
appointments of officers, authorities or persons
or to the constitution of tribunals or other
bodies which may be made by Government on or after
the 1st May, 1960 and the conditions of service of
the officers, authorities or persons appointed or
the members of the Tribunals or bodies so
constituted."
Until then the select list of Mamlatdars fit to be appointed
as Deputy Collector used to be prepared on the basis of
divisional seniority in their respective Divisions. In
Ramchandra Shankar Deodhar and others v. The State of
Maharashtra and others, [1974] 2 S.C.R. 216 the second
proviso to Rule 1 of the Recruitment Rules was held by this
Court to be void as being violative of Article 16 of the
Constitution. In that case this Court further held that the
procedure for promotion based on divisional seniority was
also violative of Article 16 and that the State should
readjust seniority according to State-wide seniority.
During the period 1960 to 1962 no direct recruits were
appointed to the post of Deputy Collectors, but sixty-one
Mamlatdars were promoted to that post. The reason why not
direct recruitments were made during this period was that on
October 31, 1961, the Government sent a requisition for
twelve October 31, 1961, the Government sent a requisition
for twelve posts of Deputy Collectors to the Gujarat Public
Service Commission but the Commission raised certain queries
with regard to the qualification Prescribed by clause (c) of
Rule
265
2 of the Recruitment Rules that the candidate should possess
an adequate knowledge of Marathi or Gujarati". The reason
for this query was that on the reorganization of the State
of Bombay, the State of Gujarat which came into being
consisted of those areas of the State of Bombay which were
predominantly Gujarati-speaking areas while the State of
Maharashtra consisted of the territories of the State of
Bombay of which the predominant language was Marathi and the
City of Bombay of which Marathi was not the predominant
language. Considerable correspondence took place between the
Commission and the Government. Ultimately, a competitive
examination for the posts of Deputy Collectors was held in
July 1962. The results of this examination were declared in
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January 1963 and the Commission sent its recommendations in
February 1963. The Government thereupon issued orders for
appointment of the candidates so selected by the Public
Service Commission in May 1963. Thus, in 1963 and later the
direct recruits came to be appointed. The Government of
Gujarat issued on December 12, 1971, a seniority list as on
January 1, 1971. The list of- the promotees 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 seniority inter se between the promotees and
the direct recruits was also prepared. It may be mentioned
that ever since 1941 in the Province of Bombay and
thereafter in the State of Bombay and subsequently in the
State of Gujarat the principle of continuous officiation had
been admittedly followed. The direct recruits filed a writ
petition in the Gujarat High Court being Special Civil
application No. 1401 of 1972 challenging the said seniority
list. The parties, apart from the State of Gujarat, namely,
the promotees and the direct recruits, were arraigned in a
representative capacity in the said writ petition. The
grievance of the direct recruits was that the promotees who
were promoted during the period 1960 to 1963 were given
seniority over those directly recruited in 1963 and later.
It was their contention that as the appointments to the
cadre of Deputy Collectors were made on the basis of a quota
allocation, a system of rotation should also apply. A
learned Single Judge of the Gujarat High Court by his
judgment dated November 30, 1973, dismissed the said writ
petition holding that Rule 1 of the Recruitment Rules
required implementation of the quota as far as it was
practicable and, therefore, the
266
promotions of Mamlatdars made between 1961 and 1963 were
regular. The direct recruits thereupon filed a Letters
Patent Appeal being letters Patent Appeal No. 113 of 1974.
In the said Letters Patent Appeal the direct recruits
contended that the promotees had not been appointed in
substantive vacancies, but were appointed in such vacancies
only on the date on which they were confirmed. By its
judgment dated November 12, 1975, the Division Bench of the
Gujarat High Court held that the Government ought to have
followed the roster method. The promotees thereupon
approached this Court in appeal. During the pendency of the
appeal, on January 1, 1976, the Government prepared a
seniority list on the basis of the judgment of the Division
Bench. By its judgment delivered on November 1, 1976, and
reported as N.R. Chauhan and others v. State of Gujarat and
others, [1977] 1 S.C.R. 1037 this Court partly allowed the
said appeal filed by the promotees.
In Chauhan’s Case the Court accepted the explanation
given by the State of Gujarat for its inability to hold the
examination. The Court summarized the conclusions it had
reached as follows (at page 1053) :
"1 The promotions of mamlatdars made by Government
between 1960 and 1962 are saved by the ’as far as
practicable’ proviso and therefore valid. Here it
falls to be noticed that in 1966 regular rules
have been framed for promotees and direct recruits
flowing into the pool of Deputy Collectors on the
same quota basis but with a basic difference. The
saving provision ’as far as practicable’ has been
deleted in the 1966 rules. The consequence bears
upon seniority even if the year is treated as the
unit for quota adjustment.
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2. If any promotions have been made in excess of
the quota set apart for the mamlatdars after rules
in 1966 were made, the direct recruits have a
legitimate right to claim that the appointees in
excess of the allocable ratio from among
mamlatdars will have to be pushed down to later
years when their promotions can be regularised by
being absorbed in their lawful quota for these
years. To simplify, by illustration, if 10 deputy
collectors’
267
substantive vacancies exist in 1967 but 8
promotees were appointed and two direct recruits
alone were secured, there is a clear transgression
of the 50 : 50 rule. The redundancy of 3 hands
from among promotees cannot claim to be regularly
appointed on a permanent basis. For the time being
they occupy the posts and the only official grade
that can be extended to them is to absorb them in
the subsequent vacancies allocable to promotees.
This will have to be worked out down the line
wherever there has been excessive representation
of promotees in the annual intake.....
3. The quota rule does not, inevitably, invoke The
application of The rota rule. The impact of this
position is that if sufficient number of direct
recruits have not been forthcoming in the years
since 1960 to fill in the ratio due to them and
those deficient vacancies have been filled up by
promotees, later direct recruits cannot claim
’deemed’ dates of appointment for seniority in
service with effect from the time, according to
the rota or turn, the direct recruits’ vacancy
arose. Seniority will 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."
(Emphasis supplied.)
After discussing the case law, the Court then summed up the
further conclusions it had reached and gave the requisite
directions for reframing the inter se seniority list. These
conclusions and directions are as follows (at pages 1057-58)
:
"(a) The quota system toes not necessitate the
adoption of the rotational rule in practical
application. Many ways of working out ’quota’
prescription can be devised of which rota is
certainly one.
(b) While laying town a quota when filling up
vacancies in a cadre from more than one source, it
268
is open to Government, subject to tests under Art.
16, to choose ’a year’ or other period or the
vacancy by vacancy basis to work out the quota
among 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
implementing the quota rule. We, as Judges, cannot
strike down the particular scheme because it is
unpalatable to forensic taste.
(c) Seniority, nor ally is measured by length of
continuous, officiating service - the actual is
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easily accepted as the legal. This does not
preclude a different prescription,
constitutionally tests being satisfied.
(d) A periodisation is needed in the case to
settle rightly the relative claims of promotees
and direct recruits. 1960-62 forms period A and
1962 onwards forms period B. Promotees regularly
appointed during period A in excess of their
quota, for want of direct recruits (reasonably
sought but not secured and because tarrying longer
would injure the administration) can claim their
whole length of service for seniority even against
direct recruits who may turn up in succeeding
periods.
(e) Promotees who have been fitted into vacancies
beyond their quota during the period - the year
being regarded as the unit - must suffer survival
as invalid appointees acquiring new life when
vacancies in their quota fall to be filled up. To
that extent they will step down, rather be pushed
down as against direct recruits who were later but
regularly appointed within their quota." (Emphasis
supplied.)
Thereafter, on January 19, 1978, the Government of
Gujarat prepared a seniority list pursuant to the directions
given by this Court in Chauhan’s Case. Thereupon, in March
269
1978 the direct recruits filed a writ petition in the
Gujarat A High Court being Special Civil Application No.
1407 of 1978 challenging the said seniority list dated
January 19, 1978. This writ petition was also filed in a
representative capacity and the parties thereto are the same
as in the earlier writ petition, namely, Special Civil
Application No. 1401 of 1972, save that as N.K. Chauhan had
retired, G.K. Dudani has been joined as a party in his
place. The main contention of the direct recruits in the
said Special Civil Application No. 1407 of 1978 was that
there were only thirty substantive vacancies in the
permanent strength of the Deputy Collectors’ cadre and the
balance of thirty-one vacancies was in the temporary posts
created by the State Government or ex-cadre posts and
consequently the thirty-one promotees could not be deemed to
be "regularly appointed" as required by direction ’d’ given
in Chauhan’s Case.
In October 1978 the promotees also filed a writ
petition in the Gujarat High Court, being Special Civil
Application No. 2199 of 1978, challenging the said seniority
list of January 19, 1978, raising two contentions. The first
contention was that quota was not distributed on the basis
of actual or utilized vacancies but only the filled-up
vacancies of the officers who had continued to officiate
till retirement or death. The second contention was that the
appointment of junior time-scale I.A.S. Officers in the
cadre of Deputy Collectors was irregular because the
relevant rule prescribed only two sources of recruitment,
namely, promotion from lower rank and direct recruitment. We
may mention that the second contention raised by the
promotees was given up as it transpired at the hearing of
the said writ petition that the junior time-scale I.A.S.
Officers were appointed to the posts of Assistant Collector
and not to the posts of Deputy Collector, and even a Deputy
Collector after he was nominated to the I.A.S. was appointed
as an Assistant Collector.
Both the said writ petitions were heard together by a
Division Bench of the Gujarat High Court. Accepting the
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above contention of the direct recruits, the Division Bench
of that High Court observed that the officers promoted
during period A to the posts of Deputy Collectors fell in
four categories, namely,
270
(i) Promotees appointed to substantive vacancies
in the cadre of Deputy Collectors.
(ii) Promotees appointed to hold ex-cadre posts.
(iii) Promotees appointed to temporary posts cadre
posts or ex-cadre posts.
(iv) Promotees who were first placed on
conditional select list during period A and were
placed on unconditional select list after their
performance was found satisfactory.
So far as the first category is concerned, it was
conceded by the direct recruits at the hearing of the said
writ petitions and, in our opinion, rightly so, that
promotees falling under that category in excess of their
quota would be senior to subsequently appointed direct
recruits in accordance with their length of continuous
officiating service. So far as the last category is
concerned, the Division Bench rejected the contention of the
direct recruits and observed that Mamlatdars were placed on
a conditional select list and were appointed to hold the
posts of Deputy Collector and if their performance was found
satisfactory during the trial period, they would be
confirmed in those posts and that such confirmation had
nothing to do with the length of continuous officiating
service of such Mamlatdars. The Division Bench held, and in
our opinion, rightly, that it was the placement of the
Mamlatdars on the select list which was material. This
finding of the Division Bench is not challenged in the
Appeal before us filed by the direct recruits.
The only dispute before us, therefore, revolves round
the second and the third categories. According to the
Division Bench, the question which fell for consideration
with respect to these categories was whether the expression
"promotees regularly appointed" used in the said direction
(d) in Chauhan’s case meant a regular appointment in the
regular course to a cadre post as contra-distinguished from
ad hoc appointment or appointment to an ex-cadre post.
According to the Division Bench, the expression "promotees
regularly appointed during period A in excess of their
quota" had a
271
direct reference to promotees regularly appointed in
substantive vacancies which occurred in the cadre of Deputy
Collector between 1960 and 1962. According to the Division
Bench, the concept of regular appointment which was laid
down in Chauhan’s case was indissolubly wedded to the said
Government Resolution of 1959 read with the said Government
Resolution of 1941 and, therefore, to read the said
direction independently of the said two Resolutions was to
decree an artificial and unnatural divorce between them. The
Division Bench held, "Therefore, regularity of appointment
is not any regularity which our forensic tests may warrant
but it is the regularity in terms of those RESOLUTIONS." The
High Court further held that reading the principle laid down
in the direction (d) in the light of the said Government
Resolution of 1959, promotees appointed in substantive
vacancies which occurred in the Cadre of Deputy Collectors
during period A in excess of their quota could alone gain
seniority over the direct recruits in terms of the principle
of the length of continuous officiating service and that
those who were promoted to the posts of Deputy Collectors
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for being appointed to ex-cadre posts could not be said to
be regularly appointed because their appointments were not
in substantive vacancies in terms of the said Government
Resolution and that the seniority of those who were so
promoted had to be determined from the date on which they
were appointed to fill the substantive vacancies in the
cadre of Deputy Collectors The High Court then proceeded to
consider the case of those who were promoted to the posts of
Deputy Collectors for being appointed to hold temporary
posts. According to the Division Bench, they could not be
said to have been "regularly appointed" within the meaning
of the decision in Chauhan’s case. The Division Bench
observed:
"A temporary post and a substantive vacancy go ill
together. There can be a substantive post and a
temporary vacancy but it is difficult for us to
think that there can be a substantive vacancy in a
temporary post. The very fact that the post is
temporary militates against there being a substan-
tive vacancy in that post. We are, therefore, of
the opinion that the Mamlatdars who were, during
period A, promoted to the posts of Deputy
Collectors and appointed to hold temporary posts
could not claim seniority in terms of the length
of
272
their continuous officiating service from the date
or dates of such promotions. They can claim
seniority in the cadre of Deputy Collectors only
from the date or dates from which they were
appointed to the posts of a Deputy Collector in
substantive vacancies in the cadre of Deputy
Collectors.
In our opinion, it was not open to the direct recruits
to contend in their Special Civil Application No. 1407 of
1978 that promotees appointed to hold ex-cadre posts, and
temporary posts, whether cadre posts or ex-cadre posts, were
not regularly appointed during period A and the High Court
after perusing Chauhan’s case was in error in permitting
them to raise this contention. This contention had been
raised by the direct recruits in their earlier writ
petition, namely, Special Civil Application No. 1401 of
1972. The learned Single Judge had rejected this contention
and had held that the appointments of the promotees between
1961 and 1963 were regular. Though this point was taken in
the Memorandum of Appeal in the Letters Patent Appeal filed
by the direct recruits, the Division Bench which heard this
appeal did not disturb this finding nor was this finding
upset in Chauhan’s case. On the contrary, in Chauhan’s case
this Court observed (at page 1055)
"In the instant case it is common ground that the
appointments are not on a purely ad hoc basis but
have been regularly made in accordance with the
rules to fill substantive vacancies except that
the promotees have exceeded their quota, direct
recruits being unavailable."
In view of this categorical finding in Chauhan’s case,
it was not open to the direct recruits to reagitate this
point. Although by reason of the Explanation which was
inserted in section 141 of the Code of Civil Procedure,
1908, by the Code of Civil Procedure (Amendment) Act, 1976,
section 11 of the Code does not in terms apply to any
proceeding under Article 226 of the Constitution, the
principle of res judicata does apply to all writ petitions
under Article 226. This point was, therefore, barred by the
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principle of res judicata and should never have been allowed
by the High Court to be reagitated.
273
Even apart from the question of res judicata, the
Division Bench was not right in its approach to Chauhan’s
case. The interpretation placed by the Division Bench upon
the words "promotees regularly appointed" in direction (d)
in Chauhan’s case was wholly erroneous. Under the guise of
interpreting the judgment in that case, the Division Bench
of the High Court virtually sat in appeal over the judgment
of this Court and modified it. The High Court ought to have
taken the words in that judgment in the sense in which they
were used and ought to have applied them to the facts before
it instead of trying to put words in the mouth of this
Court. The Division Bench ignored the fact that this Court
had categorically held that in the case before it the
appointments had been regularly made in accordance with the
rules to fill substantive vacancies. According to the
Division Bench, direction (d) in Chauhan’s case meant that
these appointments should be regularly made only to the
vacancies in the permanent posts in the cadre and did not
apply to promotees appointed to hold ex-cadre posts. The
record shows that during period A there were thirty
vacancies in permanent posts and thirty-one vacancies in
temporary additional posts. These thirty-one posts were
created initially for a period of one year but renewed from
year to year from 1960 onwards and have been in existence
continuously since then. These temporary additional posts
were, therefore, not fortuitous posts created for the
purpose of special tasks but formed an integral part of the
regular cadre, and appointments to those posts were made
from the approved select list of Mamlatdars prepared in
consultation with the Gujarat Public Service Commission. The
mode of appointment to these posts was to appoint first a
particular officer to the cadre post of Deputy Collector and
to continue him as Deputy Collector or depute him to other
Departments in equivalent posts. Rule 9(8) of the Bombay
Civil Service Rules, 1959, defines "cadre" as meaning the
strength of a service or a part of service sanctioned as a
separate unit. The service of Deputy Collectors is
admittedly a separate unit under the Revenue Department. A
cadre consists of permanent posts and temporary posts added
to the cadre from time to time according to the exigencies
of the service. The difference between permanent and
temporary posts is brought out by the definition of these
expressions given in Rule 9. Under Rule 9(43), a permanent
post is a post carrying a definite rate of pay sanctioned
without limit of time and
274
under Rule 9(56) a temporary post is a post carrying a
definite rate of pay sanctioned for a limited time. Rule 71
sets out the manner of fixation of pay of the officer
appointed to a temporary post. The note below Rule 8 is
illuminative and is as follows:
"Substantive appointments to temporary posts
should be made in a limited number of cases only,
as for example, when posts are, to all intents and
purposes, quasi permanent or when they have been
sanctioned for a period of not less than, or there
is reason to believe that they will not terminate
within a period of three years. In all other
cases, appointments in temporary posts should be
made in an officiating capacity only".
Instruction No.3 to Rule 71 is also illuminative. It
provides as follows
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"Temporary posts may be divided into the
categories - (i) posts created to perform the
ordinary work for which permanent posts already
exist in a cadre, the only distinction being that
the new posts are temporary, and not permanent and
(ii) isolated post created for the performance of
special task unconnected with the ordinary work
which a service is called upon to perform. An
example of the latter type of post is on a
commission on enquiry. A distinction by strict
verbal definition is difficult, but in practice
there should be little difficulty in applying the
distinction in individual cases. The former class
of post should be considered as a temporary
addition to the cadre of a service whoever may be
the individual appointed to the post. The latter
class of temporary post should be considered as
unclassified and isolated ex-cadre posts.
Temporary posts which by this criterion should be
considered as temporary addition to the cadre of a
service should be created in the time-scale of the
service ordinarily without extra remuneration.
Incumbents of these posts will, therefore, draw
their ordinary time-scale pay."
275
mis is precisely what has been done in the case of officers
whom the Division Bench has categorized as promotees
appointed to hold ex-cadre posts or promotees appointed to a
temporary post, whether an ex-cadre post or a cadre post.
Even officers holding permanent posts are often deputed to
hold an ex-cadre post. It was, therefore, immaterial whether
these promotees after being appointed Deputy Collectors were
deputed to hold an ex-cadre post or not. The position that a
temporary post can be held in a substantive capacity is now
firmly established by decisions of this Court in Baleshwar
Dass & Ors. etc. v. State of U.P. & Ors., [1981] 1 S.C.R.
449 and O.P. Singla and Anr. v. Union of India & Ors.,
[1984] 4 S.C.C. 450. According to these decisions, all
persons holding substantive posts or temporary posts in
substantive capacity are members of the service. In Singla’s
case this Court further pointed out (at page 483) "A person
can be said to hold a post, permanent or temporary, in a
substantive capacity only if his appointment to that post is
not fortuitous or ad hoc." The judgment in Chauhan’s case is
clear on the point that the appointment of none of the
promotees in question was a fortuitous or an ad hoc
appointment. Further, copies of the relevant Gazette
notifications have been produced in these Appeals which
clearly bear out not only this fact but also show that the
appointments of these promotees were regularly made.
The judgment of the Division Bench, in so far as it
held that "promotees appointed to ex-cadre posts" and
"promotees appointed to temporary posts, cadre posts or ex-
cadre posts" were not regularly appointed during period A
and, therefore, were not covered by direction (d) in
Chauhan’s case was clearly wrong and is hereby reversed.
Civil Appeal No. 2359 of 1980 is filed by the promotees
and is directed against the judgment and order of the
Division Bench of the Gujarat High Court making the rule
issued by that High Court in Special Civil Application No.
1407 of 1978 filed by the direct recruits absolute and
dismissing Special Civil Application No. 2199 of 1978 filed
by the prormotees. So far as that part of the said Appeal
which is directed against dismissal of Special Civil
Application No. 2199 of 1978 is concerned, the two
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contentions which were raised before the High Court and
which have been set out above were also raised
276
before us. The promotees had given up in the High Court the
first contention relating to the appointment of junior time-
scale I.A.S. Officers in the cadre of Deputy Collectors and
it is now not open to them to raise this contention. So far
as the second contention is concerned, it is the case of the
promotees that in addition to thirty vacancies in permanent
posts and thirty-one in temporary additional posts, there
were nineteen further vacancies, making in all eighty
vacancies. The submission of the promotees before us was
that this Court should direct the Government of Gujarat to
prepare a fresh seniority list and to give the promotees the
benefit of these further nineteen vacancies also. The State
of Gujarat has categorically stated both in its affidavit in
reply filed in the Gujarat High Court as also in its
affidavits filed in this Court that there were in all only
sixty-one vacancies. The contention of the promotees that
there were nineteen further vacancies does not seem to be
correct as the record bears out the above statement made by
the State of Gujarat, and after this length of time it is
not necessary to remit this matter to the High Court to
ascertain this fact or to direct the State Government to
prepare a fresh seniority list. This litigation has gone on
too long and there must be a rest and quietus to all things.
In our opinion, Special Civil Application NO. 2199 of 1978
filed by the promotees was rightly dismissed by the Division
Bench.
In the result, we partly allow Civil Appeal No. 2359 of
1980 and while confirming the order of the Gujarat High
Court dismissing Special Civil Application No. 2199 of 1978,
we set aside its order making absolute the rule issued in
Special Civil Application No. 1407 of 1978 and dismiss the
said Special Civil Application.
Civil Appeal No. 1816 of 1980 is filed by the State of
Gujarat against the order of the Division Bench of the
Gujarat High Court in Special Civil Application No. 1407 of
1978 filed by the direct recruits. This Appeal is
accordingly allowed.
All interim orders passed in both these Appeals are
hereby vacated.
The real result of this prolonged and unfortunate
litigation is that most of the promotees have retired from
277
service and only a few are left to enjoy the fruits of their
victory in the concerts shape of being able hereafter to
fill a higher post in the Indian Administrative Service.
Their misfortune was due to the inability of the Government
of Gujarat to hold a competitive examination for nominating
direct recruits to the posts of Deputy Collector because of
the query raised by the Gujarat Public Service Commission
with respect to the particular vernacular language of which
the candidate was expected to possess an adequate knowledge,
namely, whether it should be Gujarati or either Marathi or
Gujarati. This query would not have been raised had what was
then called the bilingual State of Bombay not been
bifurcated into two so-called unilingual States. Those who
have retired have, however, had the honour of being
sacrificial lambs on the altar of the God of Linguistic
States and can console t themselves with the knowledge that
the local, and in a large measure even the State,
administration of their State has after the division of the
old State been carried on in the mother tongue of the
residents of the new State. It is time we lifted the
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Language Curtain which has descended criss-cross across
India so that an Indian can understand another Indian. St.
Paul said in his First Epistle to the Corinthians (xiv.11),
"Therefore if I know not the meaning of the voice, I shall
be unto him that speaketh a barbarian, and he that speaketh
shall be a barbarian unto me." Let us then have a common
tongue, whatever it be. We may take pride in our mother
tongue. We may take pride in the locality, town or region
from where we come. But let us above all prides take pride
in being Indians.
The parties will bear and pay their own costs of these
Appeals.
C.A. 2359/80 partly allowed.
M.L.A. C.A. 1816/80 allowed.
278