W. P. No. 1704 of 1984

1st April, 1991.

Petitioner Counsel: D. K. Deshmukh
Respondent Counsel: P. M. Gundawar

JUDGMENT

DAUD, J. :- This petition under Article 226 of the Constitution takes exception to the supersession of the petitioners and promotions of those whose names appear in Annexure-I dated 6-6-1984, as also the vires of sub-rules 2 of Rule I and (a) of Rule 4 of the Maharashtra Tahsildars (Recruitment) Rules, 1989.

2. Petitioners joined the Subordinate Revenue Service (SRS) and the details of their career are set out in Annexure-A being a part of the petition compilation. Respondents Nos. 4 to 18 also joined the SRS at different times. The SRS included Naib-Tahsildar, Awal Karkun, First Grade Clerks and Assistant Superintendents. For promotion to the next higher cadre of Tahsildars, all ranks of the SRS were eligible. Promotion to the post of Tahsildars is done through the M.P.S.C. By the G.R. No. RCT-1259/130952-G dated 19th November, 1959, the Government in the Revenue Department formulated recruitment rules for the post of Mamlatdars including Tahsildars. Apart from the nominees, the post could be filled up by promotion "From among members of the Subordinate Revenue Service including Naib-Tahsildars." Petitioners in June, 1984, were functioning as Assistant Superintendents. Respondents Nos. 4 to 18 were then working as Naib-Tahsildars. Their service details are set out at Annexure-J. By Annexure-I dated 6-6-1984, respondents Nos. 4 to 18 were promoted to the Tahsildars Cadre without considering the claims or eligibility of the petitioners. In the SRS, respondents Nos. 4 to 18 are junior to the petitioners. Admittedly, petitioners were excluded from the area of consideration on the limited ground that they were not Naib-Tahsildars.

3. Petitioners contend that being members of the SRS, the different categories such as N.Ts., A.Ks. and Assistant Superintendents were equal in rank as also pay. The services were interchangeable and it depended upon the exigencies of the situation as to where and when a N.T. was to work as Assistant Superintendent or a N.T. Several instances of such interchangeability had occurred in the past and a few of them were quoted in the petition. The non-consideration of petitioners for the post of Tahsildars, was arbitrary and irrational. The first three respondents in their initial return, contended that though Assistant Superintendents received the same salary as Naib-Tahsildars, the work being done by the two categories, was entirely different. The Assistant Superintendents were doing a purely desk job whereas Naib-Tahsildars had to work in the field and this work was of a diverse character. It was for these reasons that Naib-Tahsildars alone were considered fit for promotion to the post of Tahsildars. Without even amending the return, the respondents came forthwith Maharashtra Tahsildars (Recruitment) Rules, 1989, which Rules by Rule 4, restricted the area of consideration for the post of promotee Tahsildars to persons holding the post of Naib-Tahsildars having not less than three years' service in Class HI service in the Awal Karkun and Naib-Tahsildar cadres taken together. These rules published in the Gazette dated 27th April, 1989, have been given retrospective effect vide Rule 1(2) as from 17th March, 1982. The plea is that having regard to the retrospective operation of the 1989 Rules, the promotions given to respondents Nos. 4 to 18 are unvulnerable.

4. First, is the question whether the post of Naib-Tahsildar, Awal Karkuns and Assistant Superintendents, all admittedly carrying the same pay scales, are posts equal in rank? Petitioners have given several examples of a person joining the SRS and functioning in different capacities as the exigencies of the service required. Annexure-'A' gives the details of the different capacities in which the seven petitioners functioned. Petitioner No. 1 functioned as a Naib-Tahsildar from 9-11-1970 to 31-8-1980 and again from 1-11-1983 to 31-5-1984. From 1-9-1980 to 31-10-1983 and 1-6-1984 onwards, the petitioner No. 1 worked as an Assistant Superintendent. Petitioner No. 2 worked as a Naib-Tahsildar from 24-10-1979 to 31-8-1980. As from 1-9-1980, petitioner No. 2 has been functioning as an Assistant Superintendent. Petitioner No. 3 worked as a Naib-Tahsildar from October, 1979 to 31-8-1980. From 1-9-1980 he is working as an Assistant Superintendent. Petitioners Nos. 4 to 7 came into the SRS in March, 1981 and since entry, have been working as Assistant Superintendents. In so far as the case of respondents Nos. 4 to 18 is concerned, respondent No. 4 became a Naib-Tahsildar in October, 1979 and the others i.e. respondents Nos. 5 to 18 became Naib-Tahsildars from March, 1981 with the exception of respondent No. 6 who becameaNaib-Tahsi ldar in January, 1981. Even after the promulgation of the 1989 Rules, the administration has been treating the post as interchangeable. Annexure-'L' is an order dated 3-4-1990 transferring one K. N. Puranik working as a Naib-Tahsildar, to the post of Assistant Superintendent which post was formerly occupied by Smt. Hedaoo. Smt. Hedaoo on promotion became an Additional Tahsildar. In the same transfer order, there is the case of A. S. Vairagade functioning as a Naib-Tahsildar, being transferred to the post of Assistant Superintendent. Then comes order dated 30th March, 1990 whereby M. D. Wazalwar, a Naib-Tahsildar, is transferred to the post of Assistant Superinte ndent. No more material is required to establish that the posts of Naib-Tahsildar and Assistant Superintendent were treated as interchangeable. Under the 1959 Rules, the area of consideration was open to all members of the Subordinate Revenue Services. The words "including Naib-Tahsildars" show that in the minds of the rule-makers, Naib-Tahsildars were being given a concession by being included amongst the eligible for promotion to the post of Tahsildars. All this was done away suddenly by the 1989 Rules which were given retrospective effect from 17th March, 1982. The retroactivity is not the only infirmity in the 1989 Rules. The area of consideration was considerably lessened and that for no apparent reason. The area of consideration now became confined to persons holding the post of Naib-Tahsildars having not less than three years' service. All the others such as those who had functioned as Assistant Superintendents although alternating with the post of Naib-Tahsildars were excluded. This is arbitrariness enthroned and for no better reason except that it had been decided to exclude the Assistant Superintendents from being considered for promotion to the post of Tahsildars. The irrationality writ large was made worse by the retroactivity given to the Rules from a date seven years preceding the issue thereof. The only explanation for such rules, can be no other than a determination to exclude Assistant Superintendents from being considered for promotion to the post of Tahsildars. Having framed the 1989 Rules, these were ignored as is shown by the instances of Smt. Hedaoo, Vairagade and Vazalwar. The result is that Annexure-'I' has to be struck down as also Rules 1(2) and 4(a) of the 1989 Rules. Respondents Nos. 1 to 3 shall consider afresh the claims of the eligibles to the promotional post of Tahsildar, not excluding the petitioners on the ground that they were not Naib-Tahsildars on the date the promotions were to be made. This be done within three months from today. If found otherwise suitable the petitioners be given a deemed date for promotion to the cadre of Tahsildar. Such deemed date to be taken into consideration for the purposes of determination of seniority and Death-cum-Retirement-Gratuity (D.C.R.G.) benefits. Rule in these terms made absolute with parties being left to bear their own costs.

Order accordingly.