Full Judgment Text
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PETITIONER:
G.P. DOVAL AND OTHERS
Vs.
RESPONDENT:
THE CHIEF SECRETARYGOVERNMENT OF U.P. AND ORS.
DATE OF JUDGMENT18/07/1984
BENCH:
DESAI, D.A.
BENCH:
DESAI, D.A.
SEN, AMARENDRA NATH (J)
CITATION:
1984 AIR 1527 1985 SCR (1) 70
1984 SCC (4) 329 1984 SCALE (2)11
CITATOR INFO :
D 1987 SC 424 (24)
RF 1987 SC2359 (17)
D 1988 SC 268 (22)
D 1989 SC 278 (18,20)
D 1990 SC1311 (7)
ACT:
Constitution of India 1950, Articles 14,16, and 32.
Seniority-Fixation of-Past service to be given credit
if stop-gap arrangement is followed by confirmation.
Khandsari Licensing Scheme-Appointment of Khandsari
Inspectors-Inter-se seniority of ad hoc appointees and
direct recruits through Public Service Commission-Fixation
of-Whether to be reckoned from date of appointment to
temporary post or from date of approval by Public Service
Commission.
Provisional Seniority List issued-Violation of
fundamental right guaranteed under Articles 14 and 16-Burden
of proof on whom lies.
Provisional Seniority List issued in 1971-Writ petition
filed in 1983-Whether liable to be dismissed on ground of
latches or delay.
Words and Phrases: ’Or from the date of the order of
the first appointment if such appointment is followed by
confirmation’-Meaning of.
HEADNOTE:
In the year 1958-59 the State Government framed the
Khandsari Licensing Scheme to regulate the supply of
sugarcane to sugar factories. Posts of Khandsari Inspectors
initially designated as Licensing Inspectors were created in
the pay-scale of Rs. 120-250. Petitioners in the writ
petitions were appointed as Khandsari Inspectors between
March and May, 1960. Thereafter some of the respondents were
recruited as Khandsari Inspectors and along with some others
who were recruited departmentally were approved by Public
Service Commission. On March, 22, 1971 the third respondent-
the Sugar Commissioner-circulated a provisional seniority
list of Khandsari Inspectors.
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The petitioners represented against the seniority list
contending that they were assigned lower place in the
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seniority list even though they were recruited earlier and
have been continuously in service. The representations
having been rejected, writ petitions were filed in this
Court.
In their writ petitions to this Court, the petitioners
contended that when recruitment was made in the year 1960,
the post of Khandsari Inspector was not within the purview
of the Public Service Commission and that they were
regularly recruited to posts which were temporarily
sanctioned but indefinitely continued and therefore, in
reckoning their seniority, they must be given the benefit of
the length of continuous officiation, and that once approval
is granted by the Public Service Commission it would relate
back to the date of their appointment and that the previous
length of service cannot be ignored or denied in computing
seniority in the absence of any statutory rule or
administrative instruction. It was further pointed out that
petitioner Nos. 4 to 8, who were recruits of 1961 had been
assigned places Nos. 30. 34, 42, 35 and 31 respectively in
the seniority list while recruits of 1963 had scored a march
over them in the provisional seniority list.
The respondents contested the writ petitions contending
that by a Government order temporary post of Licensing
Inspectors were re-designated as Khandsari Inspectors and
that the post right from inception was within the purview of
the Public Service Commission, that on the framing of the
Khandsari Licensing Scheme, it became necessary to urgently
appoint Inspectors to implement the scheme, and therefore
the third respondent-the Sugar Commissioner who was the
appointing authority pending regular selection through open
competition through Public Service Commission proceeded to
make the appointments of the petitioners as stop-gap or ad
hoc nature and that their appointment created no right to
the post. The drawing up of the tentative seniority list was
justified as being based on the recommendations of the
Public Service Commission, and it was submitted that the
service which can be taken into consideration for
determining the length of continuous officiation must
commence from the date of substantive appointment and that
the provisional seniority list had been drawn up keeping in
view the date of approval by the Public Service Commission
in respect of each candidate and that there was no error in
drawing up the seniority list. It was further contended that
promotions which were granted on the basis of the
provisional seniority list were not questioned by the
petitioners and they have acquiesced in it, and that the
petitioners had moved the Court after a long unexplained
delay and that the Court should not grant any relief.
Allowing the Writ Petitions,
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^
HELD: (1) The impugned seniority list dated March 21,
1971 in respect of Khandsari Inspectors is quashed.
Respondents 1 to 3 are directed to draw up a fresh seniority
list based on the principle of length of continuous
officiation reckoned from the date of first appointment if
the appointment is followed by confirmation i.e. selection
approval by the State Public Service Commission. [87 F]
(2) (i) The Memorandum of 1940 merely prescribed
guidelines for the departments of the Secretariat either to
frame statutory rules or executive instructions governing
conditions of service in respect of existing services if
there are no rules, or they may be modified or amended so as
to bring them generally in conformity with the 1940 Order,
and whenever a new post or a new cadre in a service is set
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up to frame rules in conformity with guidelines prescribed
in the 1940 Order. The 1940 Order does not purport to lay
down conditions of service governing any cadre either
specifically or generally. It provides a model and unless
the model is adopted it is not binding. [82 D-F]
(ii) Assuming that the model principle set out in the
1940 order has a binding effect the impugned seniority list
does not conform to the prescribed guidelines and is
invalid. [85 F]
(3) (i) A fair rule of seniority should ordinarily take
into account the past service if the stop-gap arrangement is
followed by confirmation. [86 E]
(ii) If a stop-gap appointment is made and the
appointee appears before the Public Service Commission when
the latter proceeds to select the candidates and is
selected, there is no justification for ignoring past
service. There is also no justification for two persons
selected in the same manner being differently treated. If
once a person in a stop-gap arrangement is confirmed in his
post by proper selection, his past service has to be given
credit and he has to be assigned seniority accordingly
unless a rule to the contrary is made. In the instant case,
that has not been done to all the petitioners. The error is
apparent in the case of petitioner No. 1 and respondent No.
7. [86 B-D]
(iii) When a seniority list is challenged as being
violative of the guarantee of equality enshrined in Articles
14 and 16 and prima facie it appears that those who came
into the cadre later on scored a march over those who were
already in the cadre, it would be for the authority
justifying the seniority list to plead and point out the
rule for determining seniority on the basis of which the
list is drawn up. If any such rule is pleaded it would be
for those impugning the seniority list to aver and establish
that
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the alleged seniority rule is violative of the fundamental
rights guaranteed by Articles 14 and 16. [78 G-H; 79A]
(4) (i) It is open to the Government to lay down
general conditions of service governing all services in the
State either by rules framed under Section 241 of the
Government of India Act 1935, or on the advent of the
Constitution under the proviso to Article 309 of the
Constitution. In the absence of statutory rules, conditions
of service in a particular cadre may be governed by
executive instructions issued by the Government in exercise
of its executive power. [81 C-E]
(ii) In the absence of any other rule valid for
determining seniority under Article 16, seniority being
determined by the length of continuous officiation has been
accepted as valid by the courts. [82 H; 83 A]
P.S. Mahal and Ors. v. Union of India and Ors. [1984] 3
S.C.R. 823 and Bishan Sarup Gupta v. Union of India, [1975]
1 SCR 104, referred to.
(5) Model Rule 11 suggests as guidelines two
independent principles for determining seniority; namely (1)
seniority should be reckoned from the date of substantive
appointment, and (2) from the date of the order of first
appointment if such appointment is followed by confirmation.
[84 A]
In the instant case, recitals in the appointment order
do not spell-out that the appointees were to hold stop-gap
arrangement till a candidate selected by the Public Service
Commission is made available. On the contrary, the recitals
clearly indicate that those appointees will have to face the
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approval test by the Public Service Commission. If
petitioner Nos. 1 and 2 came to be appointed in 1960 and
respondent Nos. 4, 5 and 6 came to be appointed in 1961 and
the appointment of each of them had to be approved by the
Public Service Commission, once the approval is granted the
same will relate back to the date of first appointment. That
is the meaning of the expression in Model No. 11; ’or from
the date of the order of the first appointment if such
appointment is followed by confirmation.’ [85 A-C]
(6) Where officiating appointment is followed by
confirmation unless a contrary rule is shown, the service
rendered as officiating appointment cannot be ignored for
reckoning length of continuous officiation for determining
the place in the seniority list. [86 G]
Baleshwar Dass and Ors. etc. v. State of U.P. and Ors.
etc.,[1981] 1 SCR 449, referred to.
74
In the instant case, respondents 1 to 3 have not
finalised the seniority list for a period of more than 12
years and are operating the same for further promotion to
the utter disadvantage of the petitioners. Petitioners went
on making representations after representation which did not
yield any response, reply or relief. Further, the
petitioners belong to the lower echelons of service and it
is not difficult to visualise that they may find it
extremely difficult to rush to the court. The contention
that the writ petitions should be thrown out on the ground
of delay, latches an acquiescence must therefore be
rejected. [87 C-D]
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition Nos. 5105-13 of
1983.
(Under article 32 of the Constitution of India)
M.K. Ramamurthi, Mrs. Indra Sawhney, Mrs. C. Malhotra
and M. A. Krishnamoorthy for the Petitioners.
Yogeshwar Prasad, Mrs. Rani Chabra, Gopal Subramaniam
and Mrs. Sobha Dikshit for the Respondent.
The Judgment of the Court was delivered by
DESAI, J. The petitioners in this group of petitions
under Art. 32 of the Constitution were inducted as Khandsari
Inspectors between March, 1960 and 1964. Respondents 4 to 19
were also recruited as Khandsari Inspectors on different
dates. Respondents 1 and 2 are the Chief Secretary, Govt. Of
U. P. and the Secretary, Industries respectively of the U.
P. Government and respondent No. 3 is the Sugar Commissioner
of U. P. The dispute amongst the petitioners and the
respondents 4 to 19 is about inter-se seniority between them
in the cadre of Khandsari Inspectors.
It appears that in the year 1958-59, the State
Government framed what is styled as Khandsari Licensing
Scheme’ to regulate the supply of sugarcane to sugar
factories by G.O. No. 4588 (1) XVIII-A-680/59 dated November
21, 1959. Posts of Khandsari Inspectors initially designated
as Licensing Inspectors were created in the pay-scales of
Rs. 120-250. Petitioners Nos. 1, 2 and 3 were appointed as
Khandsari Inspectors between March and May, 1960. Thereafter
some of the respondents were recruited as
75
Khandsari Inspectors and some others who were recruited
departmentally were approved by the Public Service
Commission. On March 22, 1971, the third respondent the
Sugar Commission circulated a provisional seniority list of
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Khandsari Inspectors. The grievance of the petitioners is
that some of the petitioners have been assigned lower place
in the seniority list even though they were recruited
earlier and have been continuously in service. To
illustrate, petitioners pointed out that petitioners 1 to 3
have been placed at Serial Nos 25,29 and 27, respectively
though all of them were recruits of 1960 while respondent
No. 7-J.S. Negi, who was recruited on March 23, 1961 was
assigned the place at Serial No. 15 and respondent No.4
O. N. Chaturvedi, who was recruited on March 23, 1961 was
shown at Serial No. 6. Similarly, respondent No. 9-P.N. Rai,
who was also recruited on March 23, 1961 was shown at Serial
No 17 and respondent No. 5 was shown at Serial No. 8. The
petitioners further pointed out that petitioners Nos. 4, 5,
6, 7 and 8, who were recruits of 1961 have been assigned
places Nos. 30, 34, 42, 35 and 31 respectively while
recruits of 1963 have scored a march over them in the
provisional seniority list. The petitioners assert that when
the recruitment was made in the year 1960, the post of
Khandsari Inspector was not within the purview of the Public
Service Commission and that they were regularly recruited to
posts which were temporarily sanctioned and indefinitely
continued till today and therefore, in reckoning the
seniority, they must be given the benefit of the length of
continuous officiation. They further contend that when the
post of Khandsari Inspector was later brought within the
purview of the Public Service Commission, the names of the
petitioners who were already recruited in service as also of
some of the respondents were forwarded to the Public Service
Commission for approval and except petitioner No 9 S. P.
Gupta, the names of rest of the petitioner were approved by
the Public Service Commission on September 30, 1963, the
relevant date in the case of petitioner No. 9 is April 14,
1978. The petitioners assert that even assuming that their
appointment would be regular after approval of the Public
Service Commission, yet once such approval is granted’ it
would relate back to the
76
date of appointment and the previous length of service
cannot be ignored or denied in computing their seniority in
the absence of any statutory rule or administrative
instruction which has the force of law. The petitioners
further aver that in the absence of any other statutory rule
or administrative instruction for determining seniority,
length of continuous officiation provides a valid principle
for determining seniority. Viewed from this angle,
petitioners 1 to 3 would be senior to all the respondents
and the placement of the remaining petitioners vis-a-vis the
respondents will have to be recomputed. On the circulation
of the provisional seniority list, the petitioners submitted
various representations pointing out the error in drawing-up
the provisional seniority list but till this day no reply
was given nor any final seniority list circulated nor
reasons assigned for rejecting the representations. The
petitioners further say that despite their representation,
respondents 1, 2 and 3 are operating the tentative seniority
list for making further promotions to the post of Khandsari
Officer and Assistant Sugar Commissioner and thereby they
are being denied equality of opportunity in the matter of
promotion. The petitioners accordingly questioned by these
writ petitions the validity and legality of the provisional
seniority list asserting that as the final seniority list is
not being drawn up and as the representations are being
ignored and yet the provisional seniority list is being
operated to the disadvantage of the petitioners thereby
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denying them equality of opportunity in the matter of
promotion which action of the respondents 1 to 3 is
violative of Arts. 14 and 16.
Kailash Narain Pandey, Additional Sugar Commissioner
filed affidavit in opposition. It was admitted that by the
Govt. Order dated November 21, 1959 temporary posts of
Licensing Inspectors later redesignated as Khandsari
Inspectors in the pay scale of Rs. 120-250 were created but
according to him as the maximum of the scale was over Rs.
200 right from its inception, the post was within the
purview of the Public Service Commission in view of
Regulation 5 (a) of Appointment Department Misc. No. 99/II-
B-151-60 dated January 29, 1954 issued under the Uttar
Pradesh Public Service Commission (Limitation of Func-
77
tions) Regulations, 1954. It was then stated that on the
framing of the Khandsari Licensing Scheme, it became
necessary to urgently appoint Inspectors to implement the
scheme and therefore, the third respondent-Sugar
Commissioner as Appointing Authority pending regular
selection through open competition by the Public Service
Commission proceeded to make appointments and the
appointment of the petitioners were of a stopgap or ad-hoc
nature and that it created no right to the post. It was
admitted that petitioners Nos 1 and 2 were recruited after
holding departmental competitive test on March 4, 1960.
Petitioner No. 3, who was then working as a Clerk in Cane
Union Federation Ltd., Lucknow was selected on May 24, 1960
by applying a weeding out test. Petitioners Nos. 4 to 8 were
recruited after holding qualifying test and interview on
23rd March, 1961 and Petitioner No. 9 was appointed as and
by way of stopgap arrangement. It was contended that the
petitioners were appointed on an ad-hoc and temporary basis
as a measure of stopgap arrangement. It was conceded that
all the petitioners except petitioner No. 9, were approved
by the Public Service Commission for regular appointment in
the year 1963, to be specific on 30th September, 1963 and
they have continued uninterruptedly in the posts of
Khandsari Inspectors. It was further averred that within a
period of one year and seven months from the date of
appointment of the petitioners the State Public Service
Commission selected candidates to replace the already
working unapproved Licensing Inspectors on the request of
the Department and sent a list of approved candidates on
September 14, 1961, but only 5 out of 44 such selected
candidates joined and hence the Department has to permit the
petitioners to continue though according to the third
respondent notice of termination of service were served on
some of the petitioners. It was further pointed out that
when the State Public Service Commission proceeded to
recommend candidates for the post of Khandsari Inspectors,
some of the petitioners applied for such posts, but their
applications were rejected at the stage of scrutiny. But on
a request from the Department the State Public Service
Commission entertained the applications, called the
petitioners for interview and approved them. It was admitted
that except petitioner No. 9 all the rest of the petitioners
were approved by the Public Service Commission on September
30, 1963. Justifying the drawing-up of the tentative
seniority list as being based on recommendations of Public
Service Commission, it
78
was said that the service which can be taken into
consideration for determining the length of continuous
officiation must commence from the date of substantive
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appointment and accordingly the provisional seniority list
has been drawn-up keeping in view the date of approval by
the Public service Commission in respect of each candidate.
It was averred that if this principle is valid for the
purpose of Art. 16, there is no error in drawing-up the
seniority. It was specifically stated that it was open to
the Government to ignore officiating service or service
rendered on appointment in an ad hoc or stopgap arrangement.
It was broadly stated that before a man can claim to have
his seniority determined in the cadre, he must belong to the
cadre and he can only enter the cadre on substantive
appointment.
The rival contentions would bring into focus the
controversy between the parties. The impugned provisional
seniority list dated March 22, 1971 is drawn-up on the
length of continuous officiation determined by the date of
selection/approval of each person be the State Public
Service Commission. In the process service prior to the
approval by the Public Service Commission is wholly ignored
while reckoning seniority with the result that the recruits
of 1961 have scored a march over those who were recruited
earlier in the cadre and have been uninterruptedly
officiating in the post and who at a later date were
approved by the Public Service Commission for appointment as
Khandsari Inspectors. The question is: where on account of
exigencies of service, recruitment to a post within the
purview of the Public Service Commission is made by the
appointing authority, but at a later date the Public Service
Commission puts its seal of approval on such an appointee,
whether the continuous and uninterrupted service rendered by
such appointee prior to the approval by the Public Service
Commission can and should be taken into computation while
determining seniority based on the principle of length of
continuous officiation ?
When a seniority list is challenged as being violative
of the guarantee of equality enshrined in Arts. 14 and 16
and prima facie it appears that these who came into the
cadre later on scored a march over those who were already in
the cadre, it would be for the authority justifying the
seniority list to plead and point out the rule for
determining seniority on the basis of which the list is
drawn up. If any such rule is pleaded, it would be for those
impugning the seniority list to aver and establish that the
alleged seniority
79
rule is violative of the fundamental rights guaranteed by
Arts. 14 and 16.
In the affidavit-in-opposition filed by the Additional
Sugar Commissioner on behalf of respondents 1 to 3, it was
asserted that the impugned seniority list of the Khandsari
Inspectors was drawn-up on the principle of the length of
continuous officiation reckoned from the date of
selection/approval by the Public Service Commission in
respect of each employee belonging to the cadre. It is
necessary to refer to this aspect because the averment is
vague and of a general nature and later on at the hearing of
the petitions reliance was placed on memo No. O-66/II-233-
1938 dated January 30, 1940 (’1940 Order’ for short) for
sustaining the seniority list, the affidavit being
conspicuously silent with regard to this order. There is not
a whisper of the 1940 Order in the whole of the affidavit-
in-opposition. However, if the respondents would be in a
position to justify the seniority list on any existing
statutory rule or administrative instruction which has been
invariably followed, it would not be proper to attach too
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much importance to the vagueness in drawing-up pleadings
shifting, the stand in the course of the proceedings. It
must, however, be made clear that Mr. Gopal Subramaniam,
learned counsel who appeared for respondent No. 1 to 3
attempted to reconcile the averments in the affidavit and
the oral submissions made at the hearing of the petitions by
urging that when it is said in the affidavit that the
seniority in respect of each member of the cadre was
reckoned on the principle of length of continuous
officiation commencing from the date of selection/approval
of each member by the State Public Service Commission
respondents 1 to 3 had the 1940 Order in mind.
It is therefore, necessary first to examine the nature
and character of the 1940 Order and whether it lays down
either by way of a statutory rule or administrative
instruction a binding rule of seniority for determining the
seniority in the cadre of Khandsari Inspectors. If it does,
it will have to be further ascertained whether upon its true
construction, the relevant rule excludes any service
rendered by a member of the service prior to his
approval/selection by the State Public Service Commission.
The 1940 Order styled as a Memorandum was not annexed
to the affidavit-in-opposition. A copy of it was submitted
at
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the time of hearing of the petitions. In its preamble it
proceeds to recite that in view of the ’Appointment
Department Memorandum No. 233(1)/II-38 dated July 27, 1939
the Department of Secretariat are informed that under
Section 241 (1) (B) and (2) (b) of the Government of India
Act, 1935, rules have to be framed for appointment to the
civil services and posts and conditions of services of
persons serving.’ It further proceeds to state that the
existing rules for the various provincial specialist and
subordinate services under the Government should be revised
so as to bring them to conformity with the provisions of the
Government of India Act, 1935 and new rules should also be
drawn-up for services and posts which existed prior to April
1, 1937 but for which no rules were framed, or which have
been created after that date.’ The 1940 Order further
recites that enquiries are being received as to the lines on
which either the old existing rules have to be revised or
new rules have to be framed. It then states that ’the
general principles which have been accepted by Government
are stated below’ Para 2 of the Order, clearly brings out
the nature and character of the 1940 Order, the relevant
portion of which reads as under:
"2. Among other things the rules should provide
for the following matters."
At Item No. 11, seniority is mentioned. Elaborating how
the rule about seniority should be drawn-up, the memorandum
proceeds to prescribe guidelines as under:
"Seniority in service shall generally be
determined from the date of substantive appointment to
a service, or from the date of the order of first
appointment, if such appointment is followed by
confirmation. In special cases seniority may be
determined in accordance with the conditions which may
suit a particular service."
After extensively referring to the 1940 Order, it was
urged on behalf of the respondents that the impugned
seniority list is drawn-up keeping in view the date of
appointment, the date
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of selection/approval by the Public Service Commission,
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which is the relevant date for the purpose of computing
seniority under G.O. of 1940 and the date of confirmation by
the department and date of promotion.
The first question is: does the 1940 Order lay down a
binding rule of seniority in respect of Khandsari Inspectors
? It may at once be made clear that the cadre of Khandsari
Inspectors was first formed under ’Khandsari Licensing
Scheme’ which was framed somewhere in November, 1959. It is
difficult to believe that two decades earlier, a seniority
rule for a future cadre was prescribed. It is of course open
to the Government to lay down general conditions of service
governing all services in the State either by rules framed
under Sec. 241 of the Government of India Act, 1935 or on
the advent of the Constitution under the proviso to Art. 309
of the Constitution. It must be conceded that in the absence
of statutory rules, conditions of service in a particular
cadre may be governed by executive instructions issued by
the Government in exercise of its executive power. At any
rate, 1940 Order does not purport to lay a statutory rule
framed under Sec. 241 of the Government of India Act, 1935
because the memorandum recites that in view of the
provisions contained in Sec. 241, rules have to be framed
for appointment to civil service and posts and conditions of
service of persons serving. It further recites that rules
will have to be framed in respect of services which may be
created for the first time after the advent of the
Government of India Act, 1935. The memorandum further
provides that whenever there is an occasion for framing
statutory rules or issuing executive instructions governing
conditions of service, there must be some uniformity in this
behalf and accordingly the memorandum proceeded to point out
what should generally be the contents of the rules and on
what model they should be framed. Therefore, unquestionably
the memorandum prescribes guidelines for framing rules
governing conditions of service. The memorandum is something
akin to model standing orders. At any rate it does not
purport to prescribe statutory rules or executive
instructions governing conditions of service.
82
This further becomes clear from the penultimate paragraph of
the memorandum in which it is stated that the principles set
out in the memorandum will be generally suitable for service
or posts recruitment to which is conducted through the
Public Service Commission and whenever the departure is made
the same should be justified. Directions are given by the
memorandum that the departments of the Secretariat should
proceed with the revision of the existing service rules or
frame rules for new service and posts under their control in
accordance with the principles set out in the memorandum.
The departments were directed to draw-up the draft rules and
when ready they were required to be submitted for the
scrutiny of the appointment department and should be
accompanied by a self contained note in which the important
points and deviation from the above principles should be
explained and justified. It is thus abundantly clear that
the memorandum of 1940 merely prescribed guidelines for the
departments of the Secretariat either to frame statutory
rules or executive instructions governing conditions of
service in respect of existing services, if there are no
rules or they may be modified or amended so as to bring them
generally in conformity with the 1940 Order and whenever a
new post or a new cadre in a service is set up to frame
rules in conformity with guidelines prescribed in 1940
Order. The 1940 Order does not purport to lay down
conditions of service governing any cadre either
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specifically or generally. It provides a model and unless
the model is adopted, it is commonsense to say that it is
not binding. Therefore, the contention that 1940 Order
prescribes binding conditions of service and which have been
followed in drawing-up the seniority list does not commend
to us and must be rejected.
Assuming that in the absence of any specific rule to
the contrary having not been shown to have been adopted, the
Department accepted the model as the binding one, the next
question is: whether upon its true construction it permits
previous service to be wholly ignored in reckoning
seniority.
The model set out at Item No. 11 governing seniority
merely enacts the well-known rule of seniority in Government
Service, namely, seniority being determined in accordance
with length of continuous officiation. In the absence of any
other rule valid for
83
determining seniority under Art. 16 rule or seniority being
determined by the length of continuous officiation has been
accepted as valid by the courts. In a very recent opinion of
this Court in P.S. Mahal and Ors. v. Union of India and Ors.
Bhagwati, J. after referring to Bishan Sarup Gupta v. Union
of India observed as under:
"There was no specific seniority rule to determine
inter-se seniority between the direct recruits and the
promotees appointed regularly within their respective
quota from and after 16th January, 1959 and though, in
the absence of any specific seniority rule, the Court
could have applied the residuary rule based on length
of continuous officiation, the Court did not do so
because it felt that since the old seniority rule had
ceased to operate by reason of the infringement of the
quota rule, it would be for the Government to devise "a
just and fair seniority rule as between the direct
recruits and the promotees for being given effect to
from 16th January, 1959."
Therefore, in the absence of any specific rule of
seniority governing a cadre or a service, it is well-settled
that length of continuous officiation will provide a more
objective and fair rule of seniority. And that is exactly
what the model in the memorandum prescribes. It says that
seniority in service shall generally be determined from the
date of substantive appointment to a service. If the rule
were to stop here, the question would arise: what
constitutes substantive appointment to a post within the
purview of the Public Service Commission ? But the rule does
not stop by merely saying that the seniority shall generally
be determined from the date of substantive appointment to a
service. It further provides that it may be determined
commencing from the date of the order of the first
appointment, but proceeds to qualify the last clause by
providing: ’if such appointment is followed by
confirmation’. In other words, a rule for determining
seniority may provide length of continuous officiation from
substantive appointment or from the date of the order of the
first appointment if such appointment is followed by
confirmation. In the latter case, once confirmation is made
and the service till then is uninterrupted and continuous it
relates back to the date of the order of the first
appointment.
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Now model Rule 11 suggests as guidelines two independent
principles for determining seniority, namely (1) seniority
be reckoned from the date of substantive appointment and (2)
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from the date of the order of first appointment, if such
appointment is followed by confirmation. Two different
starting points for reckoning seniority are set out in the
model and it is difficult to assume that department adopted
one and rejected the other without making a specific rule in
that behalf.
The question that can then be posed is: what
constitutes substantive appointment in a cadre which is
within the purview of the Public Service Commission. Now the
cadre of Khandsary Inspectors was formed in 1959. There is
no material to show that at that time it was within the
purview of the Public Service Commission. A vague statement
was made that under the Uttar Pradesh Public Service
Commission (Limitation of Functions) Regulations, 1954, any
post with a sanctioned scale, the maximum of which exceeds
Rs. 200/- would be within the purview of the Public Service
Commission. It was therefore, said that the post of
Khandsari Inspector was within the purview of the Public
Service Commission. It was then urged that as the ’Khandsari
Licensing Scheme’ was to be urgently implemented, the
appointing authority filled-in the posts pending recruitment
by the Public Service Commission. This statement is not
borne out by the record. On May 4, 1960, 9 persons including
petitioners Nos. 1 and 2 were temporarily appointed as
Licensing Inspectors. The appointment order does not show
that the appointment was pending selection of regular
candidates by the Public Service Commission. In fact, some
confusion in this behalf crept in because a statement was
made at the hearing of these petitions that the post of
Khandsari Inspectors came within the purview of the Public
Service Commission in 1961. Undoubtedly, the post of
Licensing Inspector was created in the first instance upto
March, 31, 1960. But it may be mentioned that it has
continued uninterruptedly till today and has become a
permanent cadre. Identical appointment orders was issued in
favour of petitioner No. 3 some of the petitioners including
petitioners Nos. 4, 5, 6, 7 and 8 and some of the
respondents including respondents Nos. 4, 5, 6, 7 and
several others came to be appointed by the Order dated
March, 23, 1961. (Annexure ’B’ to the petition). In this
appointment order it was clearly stated that ’on the result
of the qualifying test and interview held for the posts of
Khandsari Inspectors in the months of February, and March,
1961, the candidates as noted in the enclosed list are
temporarily appointed as officiating Khandsari Inspectors in
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the scale of Rs. 120-6-210-EB-10-250 plus usual dearness
allowance per month subject to final selection by Public
Service Commission at any later date.’ The recitals in the
order do not spell-out that the appointees were to hold
stop-gap arrangement till a candidate by the Public Service
Commission is made available. On the contrary, the recitals
clearly indicate that those appointees will have to face the
approval test by the Public Service Commission. Now if
petitioner Nos. 1 and 2 came to be appointed in 1960 and
respondents 4, 5 and 6 came to be appointed in 1961 and the
appointment of each of them had to be approved by the Public
Service Commission, once the approval is granted, the same
will relate back to the date of first appointment. That is
the meaning of the expression in Model No.11; ’or from the
date of the order of the first appointment, if such
appointment is followed by confirmation.’ It is not disputed
that all the petitioners except Petitioner 4 were approved
by the Public Service Commission on September, 30, 1963 and
yet respondent No. 7-J.S. Negi is shown at S. No. 17 while
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petitioner No. 1 who joined service on March, 4,1960 and
whose appointment was approved on the same day has been
assigned S. No. 27 in the seniority list. If the first
appointment is made by not following the prescribed
procedure but later on the appointee is approved making his
appointment regular, it is obvious commonsense that in the
absence of a contrary rule, the approval which means
confirmation by the authority which had the authority power
and jurisdiction to make appointment or recommend for
appointment, will relate back to the date on which first
appointment is made and the entire service will have to be
computed in reckoning the seniority according to the length
of continuous officiation. That had not been done in this
case. Therefore, assuming that the model principle set out
in the 1940 Order has a binding effect, the impugned
seniority list does not conform to the prescribed guideline
and would certainly be invalid.
Once it is shown that the 1940 Order did not prescribe
any binding rule or seniority, but it was a model prescribed
for adoption and the adoption having not been shown, it
cannot prescribe a binding rule of seniority. Assuming that
it is deemed to have been adopted the seniority list does
not conform to the model as interpreted by us.
Now if there was no binding rule of seniority it is
well-settled that length of continuous officiation
prescribes a valid principle of seniority. The question is
from what date the service is to be reckoned ?
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It was urged that any appointment of a stop-gap nature or
pending the selection by Public Service Commission cannot be
taken into account for reckoning seniority. In other words,
it was urged that to be in the cadre and to enjoy place in
the seniority list, the service rendered in a substantive
capacity can alone be taken into consideration. We find it
difficult to accept this bald and wide submission. Each case
will depend upon its facts and circumstances. If a stop-gap
appointment is made and the appointee appears before the
Public Service Commission when the latter proceeds to select
the candidates and is selected, we see no justification for
ignoring his past service. At any rate, there is no
justification for two persons selected in the same manner
being differently treated. That becomes crystal clear from
the place assigned in the seniority list to petitioner No. 1
in relation to respondent No. 7. In fact if once a person
appointed in a stop-gap arrangement is confirmed in his post
by proper selection, his past service has to be given credit
and he has to be assigned seniority accordingly unless a
rule to the contrary is made. That has not been done in the
case of all the petitioners. The error is apparent in the
case of petitioner 1 and respondent No. 7. These errors can
be multiplied but we consider it unnecessary to do so. In
fact a fair rule of seniority should ordinarily take into
account the past service in the stop-gap arrangement is
followed by confirmation. This view which we are taking is
borne out by the decision of this Court in Baleshwar Dass
and Ors. etc. v. State of U.P. and Ors. etc., wherein this
Court observed that the principle which has received the
sanction of this Court’s pronouncement is that ’officiating
service in a post for all practical purposes of seniority is
as good as service on a regular basis. It may be
permissible, within limits for government to ignore
officiating service and count only regular service when
claims of seniority come before it, provided the rules in
that regard are clear and categorical and do not admit of
any ambiguity and cruelly arbitrary cut-off of long years of
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service does not take place or there is functionally and
qualitatively, substantial difference in the service
rendered in the two types of posts.’ It was said that
service rules will have to be reasonable, fair and not
grossly unjust if they are to survive the test of Articles
14 and 16. It is thus well-settled that where officiating
appointment is followed by confirmation unless a contrary
rule is shown, the service rendered as officiating
appointment cannot be ignored for reckoning length of
continuous officiation for determining the place in the
seniority list. Admittedly, that has not been done and the
seniority list is drawn
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up from the date on which the approval/selection was made by
the Public Service Commission in respect of each member of
the service, which is clearly violative of Art. 16, and any
seniority list drawn up on this invalid basis must be
quashed.
A grievance was made that the petitioners have moved
this Court after a long unexplained delay and the Court
should not grant any relief to them. It was pointed out that
the provisional seniority list was drawn up on March, 22,
1971 and the petitions have been filed in the year 1983. The
respondents therefore submitted that the court should throw-
out the petitions on the ground of delay, latches and
acquiescence. It was said that promotions granted on the
basis of impugned seniority list were not questioned by the
petitioners and they have acquiesced into it. We are not
disposed to accede to this request because respondents 1 to
3 have not finalised the seniority list for a period of more
than 12 years and are operating the same for further
promotion to the utter disadvantage of the petitioners.
Petitioners went on making representations after
representations which did not yield any response, reply or
relief. Coupled with this is the fact that the petitioners
belong to the lower echelons of service and it is not
difficult to visualise that they may find it extremely
difficult to rush to the Court. Therefore, the contention
must be rejected.
In view of the discussion, these petitions succeed and
are allowed and a writ in the nature of certiorari is issued
quashing the impugned seniority list dated March 22, 1971 in
respect of Khandsari Inspectors. The respondents 1 to 3 are
directed to draw-up a fresh seniority list based on the
principle of length of continuous officiation reckoned from
the date of first appointment if the appointment is followed
by confirmation i.e. selection/approval by the State Public
Service Commission. We order accordingly, but in the
circumstances of the case, there will be no order as to
costs.
N.V.K. Petitions allowed.
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