http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8

PETITIONER:

C.KRISHNA GOWDA & ORS, ETC, ETC.

Vs.

RESPONDENT:

STATE IF KARNATAKA & ORS.

DATE OF JUDGMENT: 02/02/1998

BENCH:

M. SRINIVASAN

ACT:

HEADNOTE:

JUDGMENT:

THE 2ND DAY OF FEBRUARY, 1998

Present:

Hon'ble the Chief Justice

Hon'ble Mr.Justice M.Srinivasan

M.Rama Jois, Kapil Sibal, V.C. Mahajan, Sr, Advs., Manoj

Goel, Ms. Indu Malhotra, S.N.Bhat, Ms. Binu Tamta,

K.R.Nagaraja, K.K.Tyagi, P.Mahale, D.K.Garg, Satpal Singh,

(R.C.Kaushik) Adv.(N.P.), P.N.Gupta, Anis Suhrawardy, Advs.,

with them for the appearing parties.

J U D G M E N T

The following Judgment of the Court was delivered:

Srinivasan. J.

Leave granted in all the S.L.Ps.

The phoenix has risen again. Admittedly this is the

fourth round of litigation in the dispute which germinated

about three decades and three years ago between two groups

of employees in Karnataka Administrative Service. One group

comprises persons directly recruited as Assistant

Commissioners in Group `A' (junior scale) while the other

consists of Tehsildars promoted as Assistant Commissioners.

This matter came to this Court on three occasions and the

relevant Rules were considered elaborately and interpreted

on two of them. The history of the Rules governing the

service need not be repeated here as it has been set out in

detail in the previous rulings.

2. The Government of Mysore published a gradation list

prepared as on January 1,1972 by a notification dated

January 13,1972 fixing the seniority of the Assistant

Commissioners. The same was challenged in V.B. Badami Vs.

State of Mysore (1976) 2 S.C.C. 901 Before this Court as

many as six contention were urged, the first of them being

that the quota rule applied to vacancies in all posts

whether permanent or temporary. All the six contentions were

rejected. While dealing with the first contention, this

Court give three principal reasons :-

I. The cadre consisted only of permanent posts.

II. The advertisement of the Public Service Commission

stated that the posts were likely to be made permanent.

III. Rule 9 of the Mysore Government Servants Probation

Rules provided for confirmation of a Probationer as a full

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8

member of the service at the earliest opportunity in any

substantive vacancy which may exist or arise in the

permanent cadre of the service.

3. The court went on to hold that the quota between

promotes and direct recruits was to be fixed with reference

to the permanent strength of 135 junior duty posts. The

cadre strength was found to be 135 permanent posts. In para

34 of the judgment, the court said that so long as the quota

rule remained, neither promotes could be allotted to any of

the substantive vacancies meant for the quota of direct

recruits nor direct recruits could be allotted to

promotional vacancies. Ultimately the court dismissed the

appeals rejecting the claim of the promotes.

4. That judgment was delivered on September 17,1975. The

state government issued an official memorandum on July 5,

1976 laying down guidelines for determination of seniority

between the direct recruits and promotes. The Gradation List

of Junior Scale a Officers as on June, 30, 1973 was drawn up

on the basis of such guidelines and notified on August 10,

1976. In the meanwhile on 3rd March, 1976 the Government

passed an order number GAD 590 SMC dated 3.3.1976. with

reference to the fixation of cadre strength of K.A.S (Junior

Scale). As strong reliance is placed by the petitioners on

the said order in support of their contention that the total

cadre strength was increased to 285 by including 133

temporary posts under the government order it is necessary

to extract the operative part thereof:

ORDER NO. GAD 590 SMC 74.

BANGALORE. DATED THE BRD. MARCH

1976. READ

G.O.No. GAD 110 66, dated

23.1.1967.

In Government order dated

23.1.1967, the permanent cadre

strength of KAS Class-I (Junior

Scale) was fixed at 151. The

composition of the cadre has not

are no longer held by KAS Class-I

(Junior Scale) Officer because they

have been upgraded to the KAS

(Senior Scale) or are now held by

officers of the respective

Departments. The present cadre

reviewed in the light of these

changes. In the past the temporary

posts held by KAS Class-I (Junior-

Scale) were treated as temporary

additions to the cadre from time to

time. It is now proposed to show

the permanent and temporary cadre

strength in a common order to have

a clear picture of the cadaro.

Accordingly, Government hereby fix

the permanent and temporary cadre

strength and temporary cadre

strength of KAS Class-I (Junior-

Scale) as shown in the Appendix.

This issues with the concurrence of

Finance Department vide U.O.No. FD

248/8-I 75, dated 27.1.1976.

In the appendix 133 posts were set out under the

caption `Temporary posts under State Government' in 29

categories. A list of 152 Permanent posts under State

Government is also set out therein and the permanent cadre

strength was mentioned as 152.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8

5. By notification dated February 2,1977, the gradation

list was published.

In June 1977, Karnataka Civil Services (Probation) Rules

were framed in exercise of the power conferred by Article

309 of the Constitution. Rule 2(ii) thereof defined a

probationer, as a government servant on probation. Rule 9

thereof read as follows:

"9. Confirmation - Subject to

subject (4) of rule 19 of the

Karnataka State Civil Services

(General Recruitment) Rules, 1977,

a probationer who has been declared

to have satisfactorily completed

his probation shall be confirmed at

the earliest opportunity in any

substantive vacancy which may exist

or arise:

Provided that where more than

one approved probationer is

available for such confirmation,

the senior-most approved

probationer on the date of vacancy

shall be confirmed."

6. On a representation made by some of the direct recruits

of 1974 batch for refection of inters seniority in the

gradation list, the State Government passed an order on

22.5.80. Challenging the same certain promotes filed writ

Petitions in the Karnataka High Court. The writ Petitions

were disposed of by the High Court on 8.9.82 when they were

partly allowed. The Government Order of 22.5.80 was quashed

and a direction was issued to the State Government to modify

the gradation list earlier published in August 1976. In that

judgment, the High Court analyzed the judgment of this Court

in Badami's case 1976 (2) SCC 901. It was observed that it

was not open to the High Court to speculate what would have

been the conclusion of this court if it had known the

correct factual position that the cadre of junior scale

consisted of both the permanent and temporally posts. Thus

the High Court expressed a doubt that this Court was not

aware of the correct factual position when it disposed of

Badami's case. However, the High Court observed that the

judgment of this Court would bind not only the parties

thereto but also the other promotes who were petitioners

before it.

7. The judgment of the High Court was challenged in this

court in a batch of Appeals by Special Leave. Writ Petitions

under Articles 32 were filed by direct recruits. All the

cases were heard and disposed of by a common judgment on

August 11, 1987. The same is reported in Gonal Bhimappa Vs.

State of Karnataka 1987 (SUPPT), S.S.C. 207. This court set

out the following aspects for determination.

"(i) what is the effect of the

quota rule in the matter of

fixation of inter seniority in the

Gradation List so far as recruits

from different sources are

concerned ?

(ii) Thought admittedly in 1957

under the relevant rule, a quota

existed, was that basis altered or

given up during the relevant period

?

(iii) what is the effect of this

Court's judgment is Badami case?

Was the High Court correct in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8

observing that this Court would not

have come to the conclusion that

quota was confined to substantive

vacancies only if the true state of

facts was known ?

(iv) what is the effect of the

observation in Issuer case and does

it supersede the rule in Badami

case ?

(v) Does the situation highlighted

in this case require any other

direction ?

8. Aspect No.2 is relevant for the purpose of this case.

The answer thereto is found in paragraphs 12 and 13 of the

judgment which read as follows:

"12. There was no dispute either

before the High Court or before us

that in the 1957 Rules there

existed a quota for filling up

vacancies in the Class I Junior

Scale posts. The High Court found

that the quota continued throughout

during the relevant period. Before

us Mr. Nariman supported that

finding while Mr. Kacker maintained

that the quota has in later years

been given up. Rule e of Mysore

Recruitment of Gazetted

Probationers Rules, 1959 made the

following provisions:

(1) The provisions of these rules

shall be applicable in respect of

direct recruitment the cadres in

competitive examination by the

Commission.

(13) On August 11.1977, the

Karnataka Administrative Service

(Recruitment) (Amendment) Rules,

1977 came into o force. Rule 2

thereof provided :

Amendment to Schedule-In the

Schedule to the Karnataka

Administrative Service

(Recruitment) Rules, 1977 for the

entries at the Item (b) the

following entires shall, be

substituted, namely:

-----------------------------------

1 2 3

-----------------------------------

(b) All Class I (i) 50 percent

of For (Junior Scale) vacancies to

be Posts

-----------------------------------

Unless the 1957 Rules, remained in

force till 1977, there would have

been reality no necessity to refer

to them for the purposes of

amendment. Badami case did proceed

on the footing that the quota

system in the Recruitment Rules

continued till 1971-72. It is not

Mr. Kacker's case that anything

happened after 1972 which brought

about dissolution of the quota. We

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8

reject the contention of Mr. Kacker

that the quota system had been

abandoned and confirm the finding

of the High Court in that r regard.

It is, however, a fact that the

ratio has been changed from time to

time."

While considering the 3rd aspect,

the Bench said:-

"15. The conclusion indicated in

the decision of the learned Chief

Justice of this Court in Badami

case had been supported by reasons.

As it would appear at Page 819 of

the Reports, this aspect was raised

as the first of the six contentions

formulated for consideration of the

Court. Keeping the facts of the

case in the background, three

reasons were indicated in the

judgment for the conclusion that

Reference was made to certain

decisions of this Court as also to

Rule 9 of the Probation Rules of

1959. It was held that Rule 9

established the exclusion of

temporary posts from the cadre.

Royappa case was relied upon for

the same conclusion by saying that

posts temporarily added to the

cadre by exercise of power under a

permissive rule would not become

cadre posts and temporary posts

careered due to exigencies of the

service should be treated as posts

outside the cadre. The High Court

in the judgment in Kadali case

relied upon Note 2 of Rule 49 of

the KCSR and thought that this

Court was not properly informed of

the factual situation when in

Badami case it said that temporary

posts were not to be taken into

consideration for the purpose of

working out the quota. The note of

Rule 49 has indeed no bearing on

the point and we are of the view

that there was really no

justification for the doubt

indicated by the High Court. Apart

from the fact that the conclusion

of this Court in Badami case on

this score is a binding authority

on us, from an examination of the

matter we also reiterate that

conclusion to be correct."

9. Thus this court affirmed the principle laid down in

Badami's Case and allowed the appeals and writ petitions of

the direct recruits while dismissing the appeals by the

promotes. The decision was sought to be reviewed by a few

promotes in Review Petition Nos. 880-881 of 1987.

They were dismissed on 23.9.87.

10. Following the said ruling, the government published a

notification on 30.4.1990 reviewing the promotions of the

petitioners assigning to them the dates of eligibility for

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8

promotion to the cadre of Junior Scale has Officers.

Simultaneously, a seniority list of direct recruits and

promotes to the cadre of KAS (Junior Scale) was published.

Challenging the same the aggrieved promotes field writ

petitions under Article 32 of the Constitution in this court

seeking reconsideration of the decision in Gonal Bhimappa's

case. The partitions were kept pending after notice awaiting

the decision by the Constitution Bench in Direct Recruits

Class II Engineering Officers Association Versus State of

Maharashtra 1990 (2) S.C.C. 715 after the decision of the

Constitution Bench the writ petitions of the promotes were

disposed of by the court with a direction to the petitioners

to approach the High Court and seek appropriate remedies.

Though this court directed the petitioners to approach the

High Court they had to approach the Administrative Tribunal

as by that time the Tribunal had been constituted under the

provision of the Administrative Tribunals Act. Pursuant

thereto, the petitioners filed application before the

Tribunal. The substantive prayer made by the petitioners was

to quash the notification number DPARB SKG 89(1) dated

30.4.90 and the gradation list of Assistant Commissioners

accompanying it. The basis of the claim of the petitioners

before the Tribunal was that the correct factual position

was not placed before this court in Badami's case or Gonal

Bhimappa's case and the decisions therein were not binding

and in any event went to the extent of contending before the

tribunal that the judgments were per incuriam.

11. The Tribunal perused the records in Gonal Bhimappa's

case and arrived at a factual finding that this court was

dealing with an identical set of facts in that case. The

Tribunal also found that the decision was based upon the

interpretation of the same rules and orders. The Tribunal

opined that it was impermissible to take a different view in

the present case. It was contended before the Tribunal, that

some observations made in the order of this court whereby

the petitioners were directed to approach the High Court and

seek appropriate remedies on the basis of the ruling in the

Direct Recruit's case 1990 (2) S.S.C. 715 would enable the

petitioners to reagitate the matter decided by this court in

Gonal Bhimappa's case. That contention was rejected by the

Tribunal which held that there was no specific direction

permitting the High Court or the Tribunal to reconsider the

issue. The Tribunal also placed reliance on certain passages

in the judgment of the Constitutions Bench of this Court in

that case to the effect that a decision concerning a large

number of government servants in a particular service given

after careful consideration of rival contentions is binding

on all of the members of the service. After referring to the

judgments of this court in various cases the tribunal

dismissed the petitions upholding the correctness and

validity of the government order.

12. Aggrieved thereby, the petitioners have filed these

petitions for leave to appeal to this court against the

judgment of the Tribunal. Having regard to the long pendency

of the disputes the matters have been posted for final

disposal, after notices in the petitions have been served on

the respondents and both the parties have been given

sufficient opportunity to file their respective pleadings.

13. Before us learned senior counsel for the petitioners

has submitted that the decision of this court in Badami's

case was based on the factual situation then prevailing and

he has no quarrel with the same. Though learned counsel said

that he is not challenging the correctness of the decision

in Gonal Bhimappa's case, the effect of this argument is

that the relevant rules and the government orders were

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8

overlooked in the said decision. According to him the

government order dated 3.3.1976, the relevant portion of

which has been extracted, already had increased the cadre

strength to 285 posts inclusive of the temporary posts

mentioned therein and in view of the amendments of the Rules

in 1977, the quota for the promotes should be fixed on that

basis and not on the footing that the cadre consisted of 152

permanent posts only. It is also his contention that Rule 9

as amended in 1977 was not brought to the notice of this

court when Gonal Bhimmappa was decided. It is his further

contention that as the writ petitions filed by the promotes

under Article 32 of the Constitution were disposed of with a

direction to the petitioners to approach the High Court and

raise all the points which were raised in those petitions,

besides other points, which they want to raise on the basis

of the decision in `Direct Recruits' Case, it was open to

the Tribunal to reconsider the entire issue afresh

unfettered by the decision in `Gonal Bhimappa'. Learned

counsel has also brought to our notice that in another case

before the same Administrative Tribunal relating to

Commercial Taxes Department a different view was taken by

the Tribunal. Learned counsel has also placed before us a

copy of the order of this court dated 12.7.1995 in Keshava

Ramaswamy Versus State of Karnataka 1995 K.S.L.J.(S.C.) 767

wherein it has been held that the cadre comprised temporary

posts also.

14. We are unable to accept any of the contentions. A

perusal of the government order dated 3.3.76 shows that the

temporary posts mentioned in the Appendix were not included

in the cadre. By that order, the government had only given a

clear picture of the cadre in one order. The Appendix

referred to permanent cadre strength as 152 posts. Similar

language is not used with reference to the 193 temporary

posts mentioned in the first part of the Appendix. We are

unable to persuade ourselves to hold that the government

order increased the strength of the cadre to 285. According

to learned counsel the government order should be reading

conjunction with Rule 9 of the Probation Rules as amended in

1977. That rule refers only to substantive vacancy and the

confirmation of the probationer. Learned Counsel for the

respondents submits that none of the petitioners were

appointed on probation and the rule has no application here.

Be that as it may, the order of the government dated 3.3.76

cannot be understood in the light of a rule subsequently

framed when by itself the government order did not have the

effect of increasing the strength of the cadre. Hence, the

contention of learned counsel for the petitioner is

rejected.

15. We have already referred to the relevant passages in

the judgment of this court in `Gonal Bhimappa'. There is no

doubt whatever that the relevant rules and government orders

and in particular, the order dated 3.3.76 were placed before

this court and considered. This court had taken care to find

out whether the observations of the High Court in Kadali's

case 1982 (2) KLJ 453 that the factual situation was not

brought to the notice of this court in Badami's case was

correct or not. This court round that the observation made

by the High Court was erroneous and the decision in Badami's

case was based on correct faces. The Tribunal has now found

after going through the records in Gonal Bhimappa's case

that the facts were identical and the questions raised were

identical. In such a situate there is no escape for the

petitioners from the ruling in Gonal Bhimappa's case which

is binding on them. The Tribunal has also found that the

impugned government notification dated 30.4.1990 and the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8

accompanying Gradation List are in pursuance of the decision

of this Court in `Gonal Bhimappa'.

Hence there is no merit in the challenge of the same by the

petitioners.

16. The fact that the same tribunal had taken a different

view in another case will not help the petitioners in any

manner. That case relates to another department. It is

unnecessary for us to consider the correctness of that

decision of the Tribunal.

17. The judgment of this court in Keshava Ramaswamy Gowda's

case too does not help the petitioner. It is seen from the

order therein that the court dealt with Class-II posts only

and distinguished `Badami' on the ground the tit was

concerned only with Class I posts. In this present case we

are concerned only with class. I points and the ruling in

Keshava Ramaswamy Gowda will not apply.

18. We have no hesitation to uphold the judgment of the

Tribunal and dismiss these appeals, which we do hereby.

There will be no order as to costs.