SRINIVASAN - (1.) 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 1/01/1972 by a notification dated 13/01/1972 fixing the seniority of the Assistant Commissioners. THE same was challenged in V. B. Badami v. State of Mysore (1976) 2 SCC 901 : (AIR 1980 SC 1561). Before this Court as many as six contentions 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 gave 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 member of the service at the earliest opportunity in any substantive vacancy which may exist or arise in the permanent cadre of the service. The Court went on to hold that the quota between promotees 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 promotees 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 promotees. That judgment was delivered on 17/09/1975. The State Government issued an official memorandum on 5/07/1976 laying down guidelines for determination of seniority between the direct recruits and promotees. The Gradation List of Junior Scale Officers as on 30/06/1973 was drawn up on the basis of such guidelines and notified on 10/08/1976. In the meanwhile on 3/03/1976 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 3/03/1976, Read : G. O. No. GAD 110 SMC 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 changed, since some of these posts 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 strength has, therefore been 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 cadre. Accordingly, Government hereby fix the permanent 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/S-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.
(3.) BY notification dated 2/02/1977, 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 sub-rule (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." On a representation made by some of the direct recruits of 1974 batch for refixation of inter se seniority in the gradation list, the State Government passed an order on 22-5-80. Challenging the same, certain promotees 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 analysed the judgment of this Court in Badami's case (1976) 2 SCC 901 : (AIR 1980 SC 1561). 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 temporary 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 promotees who were petitioners before it.;