J. K. VASA VADA & Ors. v. CHANDRAKANTA CHIMANLAL BHAVSAR & Anr.

(hereinafter called petitioners) were originally servants of the State of Bombay and were allotted to the State of Gujarat on its formation on !st May, 1960. The petitioners alleged that they had passed all the prescribed depart mental examinations as required by the rules of the State of Bombay and challenged the validity of certain orders of the Government of Gujarat. One of them was an order of May 10, 1962 which provid ed that persons already promoted would have to pass the examination of G.D.C. & A. within a period of three years and if they did not their increment would be stopped and if they have reached the maximum of the scale their pay would be reduced to the next lower stage, until It also laid down G.D.C. & A. as a they passed the examillation. necessary qualification for promotion. Another impugned order was dated June 18, 1965 which contained rules made under the proviso to Article 309 of the Constitution of India and laid down the qualifica tion of G .D.C. & A. examination for promotion. They also complain ed against an order dated January 23, 1968 that they should draw no further increments and what had been paid to them earlier without giving effect to that order should be recovered. F G H t A B c D F G H r ...,_ ' ' l ' 1 J, K. VA'SAVADA v. CHANDRAKANTA (Alagiriswami, J.) 50 I It is unnecessary to set qut the impug~d orders in extenso. For the purposes of this case it is enough to say that the maiu grievance of the petitioners before the High Court of Gujarat was the laying down of the qualification of G.D.C. & A. for purposes of earning increments as weli as for promotion. They complained that under the rules force in the State of Bombay they were not require'd to pass this exami nation either for earning increments. or for promotion and the rules and resolutions of the Government of Gujarat laying down the passing 'of the G.D.C. & A. examination ail a necessary qnalification for promo tion as well as for earning increments contravened s. 81(6) of the Bombay Re-organisation Act, 1960 which is in pari materia with s. 115 (7) of the States Re-organisation Act, 1956. The appellants who were the respondents G.D.C. & A examination and therefore been promoted earlier than the respondents who were the petitioners and had therefore been im pleadeld as parties to the writ petition. the writ petition had passed removeld As regards the complaint about the petitioners not being allowed to get future increments till they passed the examination and reduction by one stage of persons who had reached the maximum in their grade and the recovery of the amounts which they had already drawn, they are no longe1' the subject matter of auy grievance because the State of those grievances by Note 1 to Regulation Gujarat have 13(4)(iii) found in the order of the Government of Gujarat dated September 14, 1967 at pages 17 to 22 of the paper book. There is this. As a certain amount of confusion against the rule above referred to there is an order dated 23-1-1968 ordering recovery. But it was made clear during the course of the arguments that no recovery will bti makle. We are, therefore, concern ed only with the question of the validity of the orders of the Govern ment insofar as they laid Clown the qualification of p.D.C. & A. as one of the requisites for promotion to higher posts. in the records regarding Before the High Court it was contended on behalf of the State of Gujarat that immediately before the "appointed day" the petitioners were governed by the 1939 Bombay Rules, of which Note to Rule .6-A provided the passing of the G.D.C. & A. as a qualification for promo tion. On the groimtl that what was prodnced was a typed compila tion consisting of some circular letters and rules of the Cooperative Department and that the learned advocate appearing for the Govern ment had not been able to tell the Court whether the rules were gazet ted or otherwise. notified rules and whether they were made in any par t.icular year and by what authority and under any particular provision of law and that it was not known when the 'note' to the rule was added the High Court held that it would not be proper to rely upon Rule 6-A and that a note to a rule had in any case no legal effect. In the course of arJ(llments before this Court the relevant rules were soq~ht to be produced. Based on the existence of those rules 502 SUPREME COURT REPORTS [1976] 1 S.C.R, and on the decision of this Court in Mohd, Shujat Ali v. Union of lndial') it was argued on. behalf of the appellants that rules relating to promotion do not come within the scope of s. 81(6). The above d.;cision of this Cort was concerned withs. 115(7) of the States Reorganisa tion Act. There was in that case a circular of the Central Govern ment dated May 11, 1957 to all State Governments stating, among other things, that so far as departmental promotion was concerned the decision of the Central Government was that "it would not be appro· priate to provide any protection in the matter". On the basis of that circular it was pointed out by this Court that so far as departmental promotion was concerned the State Governments mighl, if they so desir ed, change the conditions of service an1J for this purpose they might assume the previous approval of the Central Government as required by the proviso to s. 115(7) and as the Central Government had given its approval to any alteratio~ which the State Government might wish to i;rnkc in the conditions of service relating to departmental promo tion they did not need to be protected, and held that the Andhra Rules anU Andhra Pradesh Rules regarding promotion did not contravene the proviso to s. 115 (7). In view of this decision the question whether there was any corresponding rule in the State of Bombay before the parties in this case were allotted to the State of Gujarat becomes academic. Whether there was or there was not any rule governing the parties while they were serving the Bombay State requiring that they should pass the G.D.C. & A. examination in order to qualify for pro motion to higher posts the rule made by the Gujarat Government 1962 should be held to be not hit bys. 81 (6) of the Bombay Reorga nisation Act, 1960. It was, however, argued on behalf of the petitioners that the circn lar of the Central Government which was under consideration by this Court in the decision above cited was dated 11-5-1957 and cannot therefore apply in relation to the provisions of the Bombay Reorganisa tion Act, 1960 which came into force subsequently. But there is a fallacy in this argument. Section 81(6) reads: "Nothing in this section shall be deemed to affect, after the appointed day the operation of the provision or the pro visions of Chapter I of Part XIV of the Constitution in rela tion to the determination of the conditions of service of per sons serving in connection with the affairs of the State of Maharashtra or Gujarat. Provided that the conditioils of service applicahlc imme 'day to the case of any person diately before the appointed provisionally or finally allot•ed to the State of Maharashtra or Gujarat under this section shall not be varied to his dis advantage except with the previous approval of the Central Government." (l) A. I. R. 1974 S. C. 1631. A B c D E F G H J. K. VA:SAVADA v. CHANDRAKANTA (Alagiriswami, !.) 503 A B c D E It also The question, therclo1e, is what were the conditions of service appli cable immediately befure the appointed day to the parties in this case? They were the rules and orders applicable to them when they were servants of the State of Bombay befor~ May 1, 1960. The conditions of service appucable to them mclutkd not merely the rules made under the proviso to Article 309 of the Constitution. included a liabihty to be subjected to any other ~ule that might be made under that proviso till May 1, 1960 by the State of Bombay. The States Reorga nisation Act, 1956 was also applicable to them. It would be remem bered that under the States Reorganisation Act, 1956 the new State of Bombay includc!d not merely the pre-reorganisation State of Bombay but also areas of Kutch, Marathwada from the old Hyderabad State and the Vidharba region from the old Central Provinces and Berar. In respect of all Government servants who were allotted to the reorga nised State of Bombay s. 115(7) of the States Reorganisation Act applied. It was under the proviso to that section that the above men tioned circular of May 11, 1957 was issued by the Government of InUia. Under that circular it was open to the reorganised State of Bombay to make any rules for promotion -of its servanls which were not applicable to them before the formation of the reorganised State of Bombay. In other words the reorganised State of Bombay had the right to make rules regarding those Government servants including the parties in this case. The reorganised State of Bombay could have made rules making the G.D.C. & A. a necessary qualification for promotion even thongh there was no such rule earlier. Therefore the conditions of service of tbe servants of the reorganised State of Bombay before lst of May, 1960 included a condition that they woulU be sub· ject to any rule made by that State in respect of their promotion. The power granted to the reorganised State of Bombay should be deemed to accrue to the successor States, that is, the States of Maharashtra and Gujarat. We may in this connection refer to s. 87 of the Bombay Reorgani- F sation Act, 1960 which reads : r • " "87. Territorial extent of laws.-The provisions of Part II shall not be deemed to have cJTected any change in the territories to which any law in force imme<liately before the appointed day extends or supplies, and territorial refe~ rence in any such law to the State of Bombay shall unlil otherwise provided by a competent legislature or other com petent authority, be construed as meaning territories within that State immediately before the appointed day." Law is defined in that Act in s. 2( d) as follows : "law" includes any rcgu!ation, order, bye-law, rule, scheme, notificatio?- or other mstru ment having immediately before the appomted day, the force of law in th~ whole or in any part of the State of Bombay;" enactment, ordinance, G H 504 'SUPREME COURT REPORTS (1976] 1 s.c.I\. The memorandum of Central Government dated 11th May, 1957 was an approval in terms of the proviso to sub-s. (7) of s. 115 of States Reorganisation Act. It is, therefore, an order or other instru ment having the force of the law for the purposes of the definition ot 'law'. That circular had certafoly the force of law in the whole of the State of Bombay and as s. 87 provides that that law would conti nue to be in force within the territories of the State of Bombay imme diately before the appointed day which, inclnded the territories of the State of Maharashtra as well as the State of Gujarat the reference to the State Governments in the circular would include reference to the Governments of the State or Maharashtra and the State of Gujarat. It should, therefore, be held that even in terms of the circular of the Cer\tral Government dated 11th May, 1957 the Gujarat Government was competent to make the rules which they had made in 1962. The argument on behalf . of the petitioners therefore that no approval could have been :given in terms of s. 87 of the Bombay Reorganisa tion Act by a circular is~\Jed even in 1957 before that Act was passed has no force. The result is that the order of the Government of Gujarat State of 1962 laying down the G.D.C. & A. exami11ation as a necessary qualification for promotion should be held to be valid. The appeal is therefore allowed and the judgment of the Gujarat High Court set aside. We, however, make it clear that no recovery shall be made In the circumstances of this case there will be from the respondents. no order as to costs. P.H.P. Appeal allowed. A B c D E L 839 SCI/75-2,500-29-1-76-GIPF.