(1.)A point of considerable importance as to the power of the State Government to differ from the recommendation made by the High Court in the matter of grant of notional promotion and payment of monetary benefits in pursuance thereof to a City Civil Judge in exercise of its power under Act. 235 of the Constitution of India arises in this petition. The question arises in the following circumstances :
The Petitioner began his judicial career as an Assistant Judge & Additional Sessions Judge in the former State of Saurashtra on Novem-ber 5, 1948. He was promoted as District Judge and had acted also as a Remembrancer of legal affairs and Secretary in the Law Department in the times of the erstwhile State of Saurashtra in July, 1951. In 1954, the Petitioner requested for his repatriation to the Judicial Service but the then Government of the State of Saurashtra could not spare his services though he was assured that his interest of judicial service will not be jeopardized by the petitioner's continuance in the Legal Department. The Petitioner was thereafter transferred from Legal Department and posted as District & Sessions Judge at Bhavnagar in June, 1956. There-after he was transferred to different districts in the bilingual State of Bombay in Kutch and Panchmahals districts in 1957 and 1959 respectively. On formation of the State of Gujarat in May, 1961, the Petitioner was again transferred and posted as District & Sessions Judge Bhavnagar in 1962. Unfortunately, however, on the establishment of the City Civil Courts at Ahmedabad in November, 1961, he was not promoted as City Civil Judge having regard to the seniority assigned to him in the provisional seniority list of District Judges as on the date of the formation of the bigger bilingual State, that is, 1-11-1956. However, on June 12, 1965, he was promoted as City Civil Judge. He, however, was not elevated and appointed as Principal Judge, City Civil Courts, till his superannuation on January 24, 1969. It should be recalled that the Government of the erstwhile bilingual State of Bombay, on the recommendation of the High Court of Bombay, while fixing the seniority of District Judges coming from different merging States, had deducted five years of service of judicial officers coming from Saurashtra State including the Petitioner as decided by the Government resolution of October 25, 1956. The said resolution provided for equation of the posts of the employees of the merging States including the old State of Saurashtra. It, inter alia, directed to equate the posts of Saurashtra employees after deducting five years from their total length of service. Since the decision contained in the Government resolution of October 25, 1957 was without the prior approval of the Central Government, it violated the provisions contained in sec. 155 of the States Re-organisation Act, 1956. The Union Government by its letter of February 5, 1960 directed the Government of Bombay that the absorption of Saurashtra employees should be on cadre to cadre basis and that inter se seniority of those employees should be determined on the basis of the total length of their continuous officiation in the equated cadre and the Govt, of Bombay was advised that it should take immediate steps accordingly to revise the equation and the seniority. A full Bench of this Court in A. J. Patel & Ors. v. The State of Gujarat & Ors. AIR 1965 Gujarat 23 also ruled accordingly. The Government of Maharashtra, therefore, by its resolution of 25th November 1971 ultimately revised the gradation list of the judicial officers of the merging States as on 1st November 1956 where the Petitioner was shown at Sr. No. 20 and placed him above S/Shri N. G. Shelat, A. S. Sarela, T. U. Mehta, J. M. Sheth and V. R. Shah, who were shown at Sr. No. 32 to 36 respectively in the said list. The Maharashtra Government, therefore, resolved by its resolution of October 18, 1975, in exercise of its power under Rule 4(1) of the Allocated Government Servants (Absorption, Seniority, Pay & Allowances) Rules, 1957 and absorbed the allocated judicial officers from the former States of Bombay, M. P., Hyderabad, and Saurashtra-Kutch asspecified in the statement appended to the said resolution in the cadre of District Judges with restrospective effect from 1-11-56. The said resolution further referred to the orders issued under the Government of Bombay resolution in Law and Judicial Department dated September 25, 1971 regarding seniority of officers absor-bed in the District Judges' cadre. In terms of this resolution the act of absorption and finalisation of the gradation list of the allocated judicial officers came to be completed somewhere in October/ December, 1975. Meanwhile, on the establishment of the City Civil Courts in November, 1961, S/Shri N. G. Shelat, A. S. Sarela, J. M. Sheth, V. R. Shah and V. V. Mehta were appointed as City Civil Judges in 1961 while Shri T. U. Mehta was appointed somewhere in September 1963. The Petitioner expected that the authorities would do him justice on the revision of the gradation list pursuant to the Maharashtra Government resolutions of 25th November, 1971 and October 18, 1975 and finalisation and absorption of District Judges coming from Saurashtra area somewhere in October/ December, 1975 since the appointments made by promotion of the aforesaid judicial officers as City Civil Judges in November, 1961 were for all intents and purposes provisional in view of the circulars issued by the Government of the erstwhile State of Bombay of 10th March, 1960 as well as the Government of Gujarat in 1963 and also having regard to the Scheme of States Re-organisation Act that all the actions in the matter of the services were to be treated as provisional and stop-gap arrangement pending finalisation of the gradation list required to be prepared by the Government of successor-State showing the position of the allocated employees as on 1st November, 1956.
(2.)The hope of the Petitioner was belied and he was, therefore, compelled to submit a representation on 29th January, 1979 to this High Court on its Administrative Side to consider his case for notional promotion and to grant him all monetary benefits particularly in light of the decision of this Court (Coram: B. J. Diwan, C. J. as he then was) in Special Civil Application No. 912 of 1974 decided on 13th June, 1978 filed by Shri T. U. Mehta, whose claim was upheld that pursuant to his revised position in the gradation list where he was placed above M/s. J. M. Sheth and V. R. Shah and just below M/s. N. G. Shelat and A. S. Sarela, he should be granted notional promotion in the cadre of City Civil Judges with all back benefits as a result thereof. The Petitioner learnt that this Court on its Administrative Side has resolved that had the gradation list of District Judges at the time of establishment of City Civil Courts at Ahmedabad on 4-11-61 been revised, as subsequently revised by the Resolution dated 25th September, 1971, in so far as it related to the officers allocated to the State of Gujarat with effect from 1st May 1960, the Petitioner would have teen appointed as City Civil Judge on 4th November, 1961, alongwith other District Judges so appointed, and that he would not have been appointed as Principal Judge of the City Civil Court at the relevant time. The Petitioner also learnt that the High Court has by letter of 20th December, 1979 informed the Petitioner of the aforesaid decision and that the Government was moved to take necessary action in the matter to give effect to the said decision of the High Court. The Petitioner expected that the State Government will accept this recommendation of the High Court on its Administrative Side, but to his surprise he learnt from the letter of the Registrar of this Court dated 29th June, 1961 that the Government has not accepted the request made by the Petitioner in his representation of 2nd January, 1979 with the result that the Petitioner was compelled to move this Court for appropriate writs, orders and directions to quash and set aside the order of the State Government refusing, to give retrospective promotion to the Petitioner as a City Civil Judge and/or as Principal Judge of the City Civil Court, Ahmedabad and enjoining the respondent-State to give effect to the decision of the High\court dated 20th December, 1979 by giving notional promotion to the Petitioner in the cadre of City Civil Judges with effect from 4-11-61 and to pay difference between the salary which he would have received if he had been so appointed and the actual salary which he received then as a District Judge, and to grant all consequential benefits arising as a result of notional promotion in the matter of fixation of salary, pension, gratuity etc. with interest on the amounts so directed to be paid at the rate of 10% from the date of the order refusing to grant the benefits till payment.
(3.)Pursuant to the notice issued by this Court (Coram: S. L. Talati, J. on December 23, 1981, appearance was filed on behalf of the State Government, though no reply affidavit was filed opposing the admission of the petition. The petition was, therefore, admitted and Rule nisi was issued by this Court (Coram : S. L. Talati, J.) by its order of January 22, 1982.