S.S. KARMALKAR & OTHERS ETC.versusIBRAHIM HUSSENI TAMBOLI & OTHERS ETC.

                                                                                I


                   S.S. KARMALKAR & OTHERS ETC.
A                               v.
           IBRAHIM HUSSENI TAMBOLI & OTHERS ETC.
                    •.
                             OCTOBER 31, 1988

B        [MURARI MOHON DUTT AND S. NATARAJAN, JJ.)

         Civil Services: Food and Civil Supplies Department Sholapur-
    Whether part and parcel of Revenue Department-Inspecting
    Officers-Status of

          The appellants were promoted in January 1981 as Awai Karkuns
c   in the Department of Food and Civil Supplies; Sholapur. At the same
    time, the private respondents holding those posts were directed to be
    repatriated to their parent department, that is, the Revenue Depart-
    ment. The private respondents challanged these orders by way of a civil
   suit on the ground that these orders were unjust, ille~al and violative of
D Articles-14 and 16 of the Coustitution. The Civil Judge decreed the suit ..
    The Additional Sessions Judge and the High Court upheld the decree.
  · Tlte High Court came to the finding that the Food & Civil Supplies
    Department, Sholapur, had no separate existence on the date .the
   impugned order was passed and that it was part and parcel of the
   Revenue Department.
E
          It is contended by the private respondents that on the abolition of
   the statutory rationing, the Food & Civil supplies Department was
   abolished, and the appellants were absorbed in the Revenue Depart-
   ment. This contention is disputed by the apellants.

F         Allowing the appeals, it was,

          HELD: (1) It was not disputed that after the introduction of
    statutory rationing, the Food & Civil Supplies Department was an inde-
    pendent Government Department at Sholapur. l7lSG J

G        (2) It was wrong to assume that the Food & Civil Supplies
    Department dealing with food and supply thereof, was abolished conse-
    quent on the abolition of the statutory rationing. [718D I

          (3) The fact of introduction or abolition of statutory rationing
    had nothing to do with the question of food and supply thereof, which
B   inust be dealt with by some department of the Government and after
                   S.S. KARMALKAR v. LS. TAMBOLI                       713

the creation of the Food & Civil Snpplies Department, it was dealt with
                                                                              A
by that Department. [7I8C]

      (4) As the Department existed, it conld be reasonably presumed
that it had its own staff and the appellant's contention that they
were retained in the Food & Civil Supplies Department seemed to be
correct. [718Ef                                                               B

      (5) There was no material in proof of the alleged absorption of the
appellants in the Revenue Department. Moreover, as they did not fulfil
the conditions for absorption in the Revenue Department, they could
not be transferred to or absorbed in that Department. [717C; 718H]

      (6) It is true that there was no order showing that the respondents     c
were transferred on deputation from the Revenue Department to the
Food & Civil Supply Department. It could, however, be reasonably
presumed that the respondents were sent on deputation to the Food &
Civil Supplies Department, otherwise there was no question of their
repatriation to their parent department. [718H; 719A]                         D

      (7) It was apparent from the fact that separate rules were framed for
recruitment of officers in the Food anil Civil Supplies Department and a
final gradation list was also prepared and published, that the Food and
Civil Supplies Department was not part and parcel of the Revenue
Department, but it had a separate and independent existence. [719G I          E

       (8) As the appellants belonged to a different department, their
promotions would be governed by the rules of that department. Simi·
larly, the promotion of the private respondents would be considered in
accordance with the rules of the Revenue Department. [72IA]
                                                                              F
     Shri Atmaram Chaturvedi Garbade & Ors. v. State of
Maharashtra & Ors., Special Civil Applications Nos. 707 of 1974 and
4834 of 197~Bombay High Court, Nagpur Bench, referred to.

      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3804
m~~~,                                                                         G
     From the Judgment and Order dated 23.11.1987 of the Bombay
High Court in Second Appeal No. 404 of 1985, W.P. No. 607 of .1985
and Second Appeal No. 86 of 1986.

      R.K. Garg, Vijay Hansaria and Sunil K. Jain for the Appellants.         H
     714        SUPREME COURT REPORTS               [1988) Supp. 3 S.C.R.

          S.B. Bhasme, V.M. Tarkunde, A.S. Bhasme, V.N. Ganpule,
A
     S.K. Agnihotri, A.G. Pawar and A.B. Lal for the Respondents.

           The Judgment of the Court was delivered by

          DUTT, J. Special leave is granted in all these matters. Heard
B    learned Counsel for the parties.

           The principal question that is involved in these appeals is some-
     what peculiar. The question is whether the Food & Civil Supplies
     Department, Sholapur, has a separate and independent existence or
     whether it is part and parcel of the Revenue Department. The best
     authority which can answer the question is the Government, but the
c    Civil Courts and the High Court have not been able to accept the
     Government version that the Food & Civil Supplies Department,
     Sholapur, is an independent Government Department and does not
     form part of the Revenue Department. The facts leading to the ques-
     tion will be stated presently.
D
            The Commissioner of Pune Division, by his order dated January
     27, 1981, granted promotions to the appellants to the posts of Awai
     Karkuns, and directed that the private respondents herein, who were
     holding these posts would be repatriated to their parent department,
     that is, the Revenue Department. Aggrieved by the said order of the
E    Commissioner, Pune Division, some of the private respondents filed a
     civil suit for a declaration that the said order granting out of turn
     promotions to the appellants as Awai Karkuns was unjust, illegal and
     violative of the fundamental rights of the respondents guaranteed
     under Articles 14 and 16 of the Construction of India. The learned
     Civil Judge, Senior Division, Sholapur, decreed the suit .and declared
.F   that the impugned order of the Commissioner, Pune Division, was
     discriminatory, illegal and not binding upon the respondents. The
     learned Civil Judge also granted an injunction permanently restraining
     the Government from reverting the respondents from the posts of
     Awai Karkuns to the posts of Clerks. On appeal, the Fourth Addi-
     tional District Judge, Sholapur, upheld the judgment and decree of the
G    Civil Court and dismissed the appeal preferred by the appellants and
     the State of Maharashtra. The appellants and the State of Maharashtra
     filed two separate second appeals to the High Court of Bombay. In the
     meantime, some of the respondents also filed writ petitions in the High
     Court challenging the validity of the impugned order of the Commis-
     sioner, Pune Division. The High Court, by a common judgment, dis-
H    posed of the second appeals and the writ petitions. The High Court
                     S.S. KARMALKAR v. I.S. TAMBOLI !DUTT, J.]             715

        came to the finding that the Food & Civil Supplies Department,
                                                                                  A
        Sholapur, had no separate existence on the date the impugned order
        was passed, and that it was part and parcel of the Revenue Depart-
        ment. Upon that finding, the High Court dismissed the second appeals
        and allowed the writ petitions of the respondents.

               It is not disputed before us that before 1965, there was no such   B
        Department as the Food & Civil Supplies Department at Sholapur.
        Initially, the Agriculture, Food & Cooperation Department of the
        Government was entrusted with the subject of food and the supply
        thereof. By a circular dated January 13, 1965 of the Government of
        Maharashtra, a new department called "the Civil Supplies Depart-
        ment" was created. By a subsequent Government circular dated May
         13, 1965 it was renamed as "Food & Civil Supplies Department". It
                                                                                  c
        appears from the said Government circular dated January 13, 1965,
        creating the departm<l,[J.t, that the Agriculture, Food & Cooperation
        Department was renamed as the Agriculture & Cooperation Depart-
        ment. In other words, the subject of food was withdrawn from the said
        Department and a new Department, namely, the Civil Supplies               D
        Department, subseq11ently renamed as Food & Civil Supplies Depart-
        ment, was created.

               After the creation of the Food & Civil Supplies Department, the
        statutory rationing was introduced in Sholapur City and Salgarwadi
        area under the control of the Food & Civil Supplies Department which E
        will appear from the Government resolution dated February 19, 1966.
        As a result of introduction of statutory rationing, several posts had to
        be created in the establishment of the Controller of Rationing, which
        was admittedly a part of the Food & Civil Supplies Department. Cer-
        tain posts were also transferred from the Revenue Department to the
        Food & Civil Supplies Department along with the holders of such F
        posts. The most significant fact in this regard is that the holders of the
        posts had to be appointed afresh as personnel of the Food & Civil
        Supplies Department, which will also appear from the Government
        resolution dated February 19, 1966. It is not disputed that at the time,
        that is to say, after the introduction of statutory rationing, the Food &
        Civil Supplies Department was an independent Government Depart- G
        ment at Sholapur.

              The statutory rationing was discontinued in Sholapur with effect
        from May, 1, 1968. The posts in the rationing establishment were
    1   directed to be merged in the office of the Foodgrain Distribution
0




        Officer, Sholapur, and the expenditure on that account was directed to H
    716         SUPREME COURT REPORTS               [1988] Supp. 3 S.C.R.

A   be debited to the budget head "26-Miscellaneous Department-Civil
    Supplies Department .(iii) Procurement, Distribution and Price Con-
    trol (b) Mofussil" and met from the grants sanctioned thereunder.

          It is, however, not disputed that some of the rationing staff were
    retrenched, some were absorbed in the Revenue Department and the
B   remaining staff were directed to be merged in the office of the Food-
    grain Distribution Officer, Sholapur, with effect from May 1, 1969. So
    far as the appellants before us are concerned, they were not
    retrenched, but according to the private respondents they were
    absorbed in the Revenue Department. This has been emphatically
    disputed by the appellants.
c       Mr. Tarkunde, learned Counsel appearing on behaif of the pri-
  vate respondents, has drawn our attention to a letter dated October
  2?, 1969 written by the Foodgrain Distribution Officer, Sholapur, to
  the Collector, Revenue Branch, Sholapur. In that letter, the Food-
  grain Distribution Officer, Sholapur, requested the Collector to
D absorb the remaining staff of the rationing department, who were then
  working in the Foodgrain Distribution Office. At this stage, it may be
  mentioned that there is no dispute that both the Departments, namely,
  th~ Food & Civil Supplies Department and the Revenue Department,
  were under the District Collectorate. A list was attached to the said
  letter dated October 25, 1969 of the Foodgrain Distribution Officer
E relating to absorption of rationing staff in the Revenue Department.
  The list contains the names of the appellants and under column No. 7
  of the list, it has been recorded that the appellants and other remaining
  staff were willing to work in the Revenue Department. In view.of the
  said letter of the Foodgrain Distribution Officer and the. list annexed
  to his letter written to the Collector, it is submitted by the learned
F Counsel, appearing on behalf of the private respondents, that the
  appellants, were transferred to the Revenue Department as the Food &
  Civil Supplies Department was abolished on the abolition of the statu-
  tory rationing.

          It has been already noticed that some of the staff of the rationing
G   establishment, who were not retrenched, were transferred to the office
    of the Foodgrain Distribution Officer. According to the respondents,
    the Foodgrain Distribution Office is under the Revenue Department,
    while the appellants aver that it belongs to the Food & Civil Supplies
    Department. In this regard, the most important say is that of the
    Government. It is asserted on behalf of the State of Maharashtra that
H   the Foodgrain Distribution Officer belongs to the Food & Civil Sup-
                                            .:.,;.;


    •
                    S.S. KARMALKAR v. I.S. TAMBOLI [DUTT, J.]           717

        plies Department. The controversy in this respect can be easily resol- A
        ved by referring to the said letter dated October 25, 1969 of the Food-
        grain Distribution Officer to the Collector, Revenue Branch. If the
        Foodgrain Distribution Office belongs to the Revenue Department,
        there was no necessity for the Foodgrain Distribution Officer to
        request the Collector, Revenue Department, to absorb the unretren-
        ched staff of the rationing establishment. Be that as it may, the ques- B
        tion that arises is whether the appellants were absorbed in the
        Revenue Department. It ·is true that under column No. 7 of the list
        annexed to the said letter dated October 25, 1969 of the Food grain
        Distribution Officer, it has been recorded that the appellants and
        other staff of the rationing establishment were willing to work in the
        Revenue Department. There is, however, nothing to show that as a C
        matter of fact the appellants were transferred to the Revenue Depart-
        ment. The appellants might be willing to be absorbed in the Revenue
        Department, but there is no ~aterial in proof of the alleged absorption
        of the appellants in the Revenue Department. It is also not the case of
        the State Government that the appellants were absorbed in the
        Revenue Department. In the counter affidavit of the respondent D
        No. 1, it is stated as follows:

                   "That the District Collector of Solapur by his memoran-
                   dum dated 17-4-1969 laid down the conditions of giving
                   alternative employment to the retrenched ex-civil supply
                   staffin Revenue Department. These conditions are:           E

                         (1) That the services in Revenue Department are
                   transferable throughout the district.

                        (2) That Revenue employees are required to pass
                   departmental examination within prescribed period.          F

                         (3) That to hold Awai Karkun's post Revenue
                   employee is required to pass revenue qualifying exam. in
                   addition to Sub-Service Department Examination."

              It is clear from the statement extracted above that one of the G
        conditions for absorption was that the appellants were required to pass
        the departmental examination within the prescribed period. Another
~       conditions was that one had to pass revenue qualifying examination in
        addition to Sub-Service Department Examination for holding the post
        of Awai Karkun in the Revenue Department. It is not disputed that
        the appellants have not passed any of these examinations. This shows H
    718        SUPREME COURT REPORTS                [1988] Supp. 3 S.C.R.

A   that as they did not fulfil the conditions for absorption in the Revenue
    Department, they could not be transferred to or absorbed in that
    Department.                                                       ·

          The High Court proceeded on the assumption that on the aboli-
    tion of the statutory rationing, the Food & Civil Supplies Department,
B   Sholapur, also came to be absolished. Indeed, this is also the conten-
    tion of the private respondents. Food is an important matter for
    Government's consideration and it was the responsibility of the
    Agriculture, Food & Cooperation Department before the creation of
    the Food & Civil Supplies Department. The said Department was
    renamed as 'Agriculture & Cooperation Department' inasmuch as
    "food" was taken out of that Department and placed under the Food
c   & Civil Supplies Department. Thus, the fact of introduction or aboli-
    tion of statutory rationing has nothing to do with the question of food
    and supply thereof, which must be dealt with by some department of
    the government and after the creation of the Food & Civil Supplies
    Department, it was dealt with by that Department. It will be wrong to
D   assume that the Food & Civil Supplies Department dealing with food
    and supply thereof, will be abolished consequent on the abolition of
    the statutory rationing. In the counter affidavit of the State of
    Maharashtra, affirmed by Shri Chandrasen Pandarinath Kamble, it
    has been stated inter alia that in the State of Maharashtra there is a
    system of Fair Price Shops and Household Card System in the areas
E   where statutory rationing system does not exist. This Fair Price Shops
    and Household Card system undoubtedly comes under the control and
    supervision of the Food & Civil Supplies Department-. As the Depart-
    ment existed, it can be reasonably presumed that it had its own staff
    and the appellants' contention that they were retained in the F<.>0d &
    Civil Supplies Department seems to be correct. Merely the fact of
F   giving of consent by the appellants to their absorption in the Revenue
    Department, fails to persuade us to hold that the appellants were
    absorbed in the Revenue Department, in 'the absence of any proper
    material in that regard.

          A question has, however, been raised on behalf of the private
G   respondents that if the Department of Revenue and the Food & Civil
    Supplies Department are two differe°'t Departments of the Govern-
    ment, there is no material to show how the respondents came to hold
    posts in the Food & Civil Supplies Department. It is true that there is
    no order showing that the respondents were transferred on deputation
    from the Revenue Department to the Food & Civil Supplies Depart-
    ment. In our opinion, in view of the facts and circumstances stated
             S.S. KARMALKAR v. LS. TAMBOLI [DUTT, J.]               719

above, it can be reasonably presumed that the respondents were sent on
                                                                          A
deputation to the Food & Civil Supplies Department, otherwise there
was no question of their repatriation to their parent department, that
is, the Revenue Department. There are other materials which would
also justify the finding that the Food & Civil Supplies Department and
the Department of Revenue are two independent and separate
Departments even after the abolition of statutory rationing.              B

      The Governor of Maharashtra, by an order dated April 13, 1983,
framed rules under the proviso to Article 309 of the Constitution of
India for regulating recruitment to the posts of Assistant Commis-
sioner (Supply), District Supply Officer and Foodgrain Distribution
Officer Class-I under the Food & Civil Supplies Department of the C
Government of Maharashtra. Framing of these rules, proves two
things, namely, that the Food & Civil Supplies Department has inde-
pendent and separate existence, and that the Foodgrain Distribution
Officer belongs to that Department. Another set of rules was framed
under the proviso to Article 309 of the Constitution of India by the
notification dated May 21, 1984 for regulating recruitment to Class-II D
posts in the Food & Civil Supplies Department of the Government of
Maharashtra. The framing of these rules for regulating the recruitment
of officers in the Food & Civil Supplies Department supports the case
of the appellants and also of the Government that the Food & Civil
Supplies Department, Sholapur, is an independent Department. The
final gradation list of supply staff of directly recruited Clerks and E
Godown Keepers was prepared and published. It is, however,
contended on behalf of the private respondents that the supply staff
belong to the Revenue Department. This contention is without any
substance. The words "supply staff", undoubtedly, refer to the supply
staff of the Food & Civil Supplies Department. The State Government
is justified in placing reliance upon the gradation list in support of its F
case that the Food & Civil Supplies Department is an independent and
separate Department.

      It is, therefore, apparent from the above facts, particularly the
fact that separate rules were framed for recruitment of officers in the
Food & Civil Supplies Department and a final gradation list was also G
prepared and published, and the Food & Civil Supplies Department is
not part and parcel of the Revenue Department, but it has a separate
and independent· existence. This finding finds support from another
fact that the Revenue Department has its own gradation list of its
employees including the private respondents.
                                                                          H
    720         SUPREME COURT REPORTS                [1988] Supp. 3 S.C.R.

          We may now deal with one more submission made on behalf of
A
    the private respondents. Our attention has been drawn to a fact which
    has also been noticed by the High Court, namely, that by a Govern-
    ment order issued to all Commissioners of Divisions, it was directed
    that the posts of Inspecting Officers should be made .available to the
    persons from the Revenue Department as well as from the Food &
B   Civil Supplies Department in the ratio of 75:25. It is submitted on
    behalf of the private respondents that this Government order points to
    the fact that both the Food & Civil Supplies Department and the
    Revenue Department are one and the same Department at Sholapur.
    We are unable to accept this contention. The Government order in
    question, in our opinion, establishes the fact that the two Departments
    are separate Departments of the Government. It has been already
C   noticed that some officers of the Revenue Department were holding
    the posts in the Food & Civil Supplies Department, Sholapur, presum-
    ably on deputation and, hence, the ratio with regard to the posts of
    Inspecting Officers, with which we are not concerned, had to be fixed.
    If the two Departments were not separate Departments, there was no
D   necessity for mentioning the names of these two Departments in the
    said order. It is not disputed that the posts of Inspecting Officers are
    posts of the Food & Civil Supplies Department. The contention of the
    private respondents based on the said Government order is, accord-
    ingly, rejected.

E         Before we conclude the judgment, we may refer to an unrepor-
    ted Bench decision of the Nagpur Bench of the Bombay High Court in
    Special Civil Applications Nos. 707 of 1974 and 4258 and 4834 of 1976
    (Shri Atmaram Chaturji Garbade & Ors. v. State of Maharashtra &
    Ors.) disposed of on January 13, 1977 where it has been held that the
    two departments are separate. It is, however, contended by
F   Mr. Tarkunde that the Nagpur Bench decision has no bearing on the
    instant appeals before us as.it relates to the city of Nagpur and canton-
    ment in Kampte where the Food & Civil Supplies Department was not
    abolised. It, however, appeai:s that in .that decision, the Bench has
    taken into consideration some comm·on documents. Be that as it may,
    in the instant appeals, there are ample materials which justify the
G   conclusion that the rwo departments are not one and the same depart-
    ment but are two separate departments.

          In the circumstances, we are unable to agree with the High Court
    that the appellants are employees of the Revenue Department
    inasmuch as after the abolition of the statutory rationing, the Food &
H   Civil Supplies Department was also abolished and the appellants were
                           '
                  S.S. KARMALKAR v. I.S. TAMBOLI [DUTT, J.]              721

     absorbed in the Revenue Department. As the appellants belong to a          A
     different department, their promotions will be governed by the rules
     of that department. Similarly, the promotions of the private respon-

..   dents will be considered in accordance with the rules of the Revenue
     Department. We are told that after their repatriation to their parent
     department all the private respondents were promoted to the posts of
     Awai Karkuns.                                                      ·       B

          For the reasons aforesaid, we set aside the judgment of the High
     Court as also of the trial court and that of the lower appellate court
     ano dismiss the suit and the appeals. Tue writ petitions filed' in the
     High Court are also dismissed. The instant appeals are allowed, but in
     view of the peculiar facts and circumstances of the cases, there will be   C
     no order as to costs.

     R.S.S.                                                App.eals allowed.