Full Judgment Text
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PETITIONER:
DEVDUTTA AND ORS. ETC.
Vs.
RESPONDENT:
STATE OF M.P. AND ORS. ETC.
DATE OF JUDGMENT09/10/1990
BENCH:
OJHA, N.D. (J)
BENCH:
OJHA, N.D. (J)
SHARMA, L.M. (J)
CITATION:
1990 SCR Supl. (2) 154 1991 SCC Supl. (2) 553
1990 SCALE (2)692
ACT:
Civil Services--M. P. State--Surplus personnel of Devel-
opment Department--Absorption of as Sales Tax
Inspectors--Inter se seniority-Determination of---Open to
authority to have a rationalisation of the situation--Rules
formulated should be reasonable, just and equitable.
HEADNOTE:
A group of Block Level Extension Officers rendered
surplus in their parent department were appointed as Sales
Tax Inspectors, Class III (Executive) posts, in the respond-
ent State between 13th February, 1967 and 28th September,
1970. By an order dated 29th March, 1967, they were exempted
from the requirement of going through competitive examina-
tion for the purpose of absorption. By memorandum dated 22nd
May, 1967 it was provided that seniority of surplus Class
III ministerial employees of the development blocks on their
absorption in other departments shall be determined with
regard to the completed years of service counted for fixa-
tion of initial pay. By a subsequent memorandum dated 8th
November, 1967 this facility was also extended to employees
absorbed in Class III executive posts. Another order issued
on 19th July, 1973 on the subject maintained the provision
with regard to seniority as contained in the memorandum
dated 22nd May, 1967. Subsequently these Sales Tax Inspec-
tors were made permanent to that post retrospectively with
effect from 31st March, 1967 by an order dated 15th Febru-
ary, 1980. In the combined seniority list prepared accord-
ingly some of the directly recruited Sales Tax Inspectors
were shown junior to the absorbed Sales Tax Inspectors.
On cross petitions being filed by the existing Sales Tax
Inspectors and the absorbed Sales Tax Inspectors assailing
the seniority list the High Court quashed the order dated
15th February, 1980 and seniority was directed to be fixed
in accordance with the Recruitment Rules and general condi-
tions of Service Rules.
In these appeals by special leave, it was contended for
the existing Inspectors that the absorbed Inspectors could
not be confirmed on 15th February, 1980 retrospectively with
effect from a presumed date, namely, 31st March, 1967; that
the determination of seniority taking
155
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confirmation as the basis was erroneous as they were enti-
tled to have the entire period between their actual appoint-
ment and confirmation taken into consideration, and that the
appointment of the absorbed Inspectors was illegal having
been made not in conformity with the relevant rules and
without the recommendations of the Public Service Commis-
sion. For the absorbed Inspectors it was contended that
since they had been working in another department of the
State Government from various dates between 13th November,
1956 and the actual date of their absorption they were
entitled to have the entire period of their service in that
department taken into consideration and the fixation of
their seniority on the basis of their having been confirmed
from the presumed date of 31st March, 1967 was erroneous,
that none of the rules relied on by the existing ’Inspectors
was applicable to them, and that it was the executive in-
structions issued in this behalf particularly dated 29th
March, 1967, 22nd May, 1967, 8th November, 1967 which ap-
plied to their absorption.
Allowing the appeals, the Court,
HELD: 1. The order of the State Government dated 15th
February, 1980 giving retrospective confirmation to the
absorbed Sales tax Inspectors from a presumed date and
determination of inter se seniority on the basis of the
dates of confirmation was valid. [159H]
2.1 Once an incumbent is appointed to a post according
to rule, his seniority shall be counted from the date of his
appointment and not according to the date of his confirma-
tion. His transfer to the same or an equivalent post in
another Government department cannot wipe out his pre-exist-
ing length of service in the parent department. [162D; 164G]
Direct Recruit Class II Engineering Officers’ Associa-
tion v. State of Maharashtra & Ors., [1990] 2 SCC 715; Wing
Commander J. Kurnar v. Union of India & Ors., [1982] 3 SCR
453 and K. Madhavan & Anr. v. Union of India & Ors. etc.,
[1988] 1 SCR 42, referred to.
2.2 It is, however, perfectly within the power of the
Government to have a rationalisation of the entire situation
and determine with objectivity and fairness what rules
should govern the inter se seniority and ranking of the
personnel working in the concerned department. The Courts
will only insist that the rules so formulated should be
reasonable, just and equitable. [165E; 166E]
R.S. Makashi v. I.M. Menon, [1982] 1 SCC 379; K.C. Vasudeva
156
JUDGMENT:
S.G. Jai Singhghani v. Union of India, [1967] 2 SCR 703,
referred to.
2.3 In the instant case, if the period between the dates
of appointment and confirmation of the existing Inspectors
was counted for fixing their seniority but the period during
which absorbed Inspectors worked in their parent department
was ignored, the former would have obviously been placed on
a more advantageous position but only to the prejudice of
the latter as it would have amounted to sacrificing their
interest. If, on the other hand, the periods of continuous
service of both the sets of Inspectors was taken into ac-
count it would have resulted in granting benefit to the
absorbed Inspectors at the cost of existing ones and presum-
ably including those who had already been promoted as As-
sistant Sales Tax Officers, even prior to 22nd May, 1967,
inasmuch as the period during which they had served in their
parent department was much longer than the period of offici-
ation of existing Inspectors. This was the situation with
which the State Government was faced and it was its duty to
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evolve some policy or equitable formula which did justice,
as far as possible, to the competing claims of both the sets
of officers. The decision taken by the Government in the
peculiar facts and circumstances of the case could not be
said to be either arbitrary or discriminatory. No statutory
rule has been brought to Court’s notice which could run
counter to it. [165H; 166A-D]
3. The services of the absorbed Inspectors have not been
shown to have ever been factually terminated in their parent
department. Again, though the nature of appointment of these
officers in the Sales Tax Department was temporary they were
allowed to uninterruptedly continue to hold the said post
and were subsequently not only confirmed on that post but
were also given ad hoc promotion as Assistant Sales Tax
Officers. Furthermore, no relief for the quashing of their
appointment was sought for by the direct recruits before the
High Court nor was any such relief pressed there. In fact,
even the fixation of their pay as Inspectors consequent upon
their absorption, which was done in accordance with the
executive instructions does not seem to have been ever
challenged. The validity of their appointment in the Sales
Tax Department, therefore, could not be assailed. [160G;
161A-B; C]
&
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3412-13
of 1986.
From the Judgment and Order dated 19.4.85 of the Madhya
Pradesh High Court in Misc. Petition Nos. 259 and 503 of
1982.
157
Shanti Bhushan (N.P.), B. Dutta, S.K. Jain, Pradeep
Aggarwal and Mrs. Pratibha Jain for the Appellants.
M.K. Ramamurthy, R.K. Garg, C.K. Ratnaparkhi, Arun
Madan, S.K. Agnihotri and S.V. Deshpande for the Respond-
ents.
Respondent No. 15-In-person.
The Judgment of the Court was delivered by
OJHA, J. These two civil appeals by special leave have
been preferred against the common judgment of, the Madhya
Pradesh High Court rendered in two writ petitions being
Miscellaneous Petition No. 259 of 1982 and Miscellaneous
Petition No 503 of 1982. Certain persons after being select-
ed by the Public Service Commission were appointed as
Sales-tax Inspectors in the State of Madhya Pradesh. They
shall hereinafter for the sake of convenience be referred to
as existing Sales-tax Inspectors. In another Department of
the Government of Madhya Pradesh, there were certain persons
who were working as Block Level Extension Officers. The
Government of Madhya Pradesh reorganised Blocks all over the
State as a result whereof 50% of the posts of Block Level
Extension Officers were rendered surplus. A policy decision
was taken by the State Government to absorb the surplus
employees in equivalent post in other Government Depart-
ments. A meeting was held on 30th September 1965 in the
office room of the Secretary Planning and Development De-
partment for settling principles and procedure for absorp-
tion of such surplus personnel which was attended by the
Secretaries of the various Department of the Government,
Director of Panchayat and Social Welfare, Director of Indus-
tries and Director of Public Instruction. In that meeting
general principles and procedure for absorbing the surplus
personnel were settled and it was inter alia agreed that;
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"(a) the surplus staff should be absorbed on equivalent
posts and carrying the same pay scale as far as possible.
But if they are absorbed on posts carrying slightly lower
pay scale, their present pay scale should be protected;
(b) they should be treated as having been transferred from
one post to another so that there may be no break in their
service."
A Committee consisting of the Commissioner of Sales Tax, the
Addi-
158
tional Commissioner of Sales Tax and the Deputy Commissioner
of Sales Tax, Headquarters, held an interview of such sur-
plus Block Level Extension Officers who were to be absorbed
as Sales-tax Inspectors and as a result of that interview
they were appointed to the post of Sales-tax Inspectors.
These appointments seem to have been made on various dates
between 13th February, 1967 and 28th September, 1970. The
Block Level Extension Officers who were so absorbed as
Sales-tax Inspectors shall hereinafter be referred to as the
absorbed sales-tax Inspectors. At this place it is necessary
to refer to certain orders having a bearing on the matter of
absorption as aforesaid. The first such order in the se-
quence which deserves to be noticed is a Memo dated 29th
March, 1967 issued in the name of Governor of Madhya Pra-
desh. It provided:
"The Ex-Block Development Officers and the Ex-Block Level
Extension Officers have been exempted by the Government from
the competitive examinations to be conducted by the Public
Service Commission for the purpose of absorption as Sales-
tax Inspectors. The selection of these personnel to the said
post shall be done by the departmental selection committee."
The other order which requires mention is a memorandum
dated 22nd may, 1967 issued by the Government of Madhya
Pradesh General Administration Department inter alia to all
Departments of Government. In contained certain decisions in
respect of the surplus class-III (Executive) ministerial and
Class-IV employees of the development blocks on their ab-
sorption in other Departments of Government. These decisions
inter alia were about fixation of pay and fixation of sen-
iority. With regard to fixation of seniority it was provided
that seniority should be fixed with regard to the completed
years of service counted for fixation of initial pay and the
number of increments allowed therein. This Memorandum was
also issued "By order and in the name of the Governor of
Madhya Pradesh". With reference to this Memorandum it was,
by a subsequent Memorandum dated 8th November, 1967, provid-
ed that the State Government had further decided that the
facilities granted to surplus personnel to the Development
Blocks vide G.A.D. Memo under reference may also be extended
to such employees absorbed in Class-III executive posts.
At . this place it may be mentioned that the post of Sales-
tax Inspector is a Class-III (Executive) post. Another Order
dated 19th July 1973 was issued by the Madhya Pradesh Gov-
ernment to all the Heads of the Departments regarding facil-
ities to the extra officials on being
159
absorbed in other Departments. The provision with regard to
seniority was the same as in the Memorandum dated 22nd May,
1967.
As is apparent from the seniority list dated 6th Janu-
ary, 1981 showing the position of the Sales-tax Inspectors
as on 1.4.80, the existing Sales-tax Inspectors were con-
firmed on various dates between 1st November, 1956 and 5th
October, 1968. With regard to fixation of seniority of the
absorbed Sales-tax Inspectors on decision seems to have been
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taken till 15th February 1980 when an Order of that date was
issued from the office of Sales-tax Commissioner of Madhya
Pradesh which provided that the Sales-tax Inspectors men-
tioned therein who were absorbed between 1967 and 1970 were
made permanent to that post according to the directions of
the Government with effect from 31st March, 1967 (presumed
date). The seniority list referred to above indicates that
the names of the absorbed Sales-tax Inspectors are to be
found at serial Nos. 21 to 104 having, 31st March, 1967 as
the date of confirmation of all of them. The existing
Sales-tax Inspector Soni Badri Prasad shown at serial No. 20
was confirmed on 22nd May; 1966 whereas the existing Sales-
tax Inspector Cangrade Dashreth Lal shown at serial No. 105
was confirmed on 1st April, 1967.
The existing Sales-tax Inspectors as well as the ab-
sorbed Salestax Inspectors both felt aggrieved by the con-
firmation order of the absorbed Sales-tax Inspectors with
effect from 31st March, 1967, the seniority list aforesaid
prepared on its basis as well as a subsequent seniority list
dated 15th May, 1982. The two writ petitions referred to
above were filed in the High Court, one by the existing
Sales-tax Inspectors and the other by the absorbed Sales-tax
Inspectors. Both of them were decided by a common judgment
whereby the order dated 15th February, 1980 referred to
above was quashed and seniority was directed to be fixed in
accordance with the Recruitment Rules and general conditions
of Service Rules. It is this judgment which is the subject-
matter of these two civil appeals, both having been filed by
some of the absorbed Sales-tax Inspectors.
The contention of the existing Sales-tax Inspectors is
that the absorbed Sales-tax Inspectors could not be con-
firmed on 15th February’, 1980 retrospectively with effect
from a presumed date, namely, 31st March, 1967. According to
them the determination of seniority, taking confirmation as
the basis, is erroneous as they were entitled to have the
entire period between their actual appointment and confirma-
tion taken into consideration; whereas the grievance of
160
the absorbed Sales-tax Inspectors is that since they had
been working in another department of the State Government
as Block Level Extension Officers from various dates between
13th November, 1956 and the actual date of their absorption,
they were entitled to have the entire period of their serv-
ice as Block Level Extension Officers taken into considera-
tion and the fixation of their seniority on the basis of
their having been confirmed from the presumed date of 31st
March, 1967 is erroneous.
It was also sought to be urged before us on behalf of
the existing Sales-tax Inspectors that the appointment of
the absorbed Sales-tax Inspectors as Sales-tax Inspectors
was illegal having been made not in conformity with the
relevant rules and without the recommendation of the Public
Service Commission. For the absorbed Sales-tax Inspectors on
the other hand it was urged that none of the rules relied on
by the existing Sales-tax Inspectors was applicable to the
absorption as Salestax Inspectors of the surplus Block Level
Extension Officers and that it was the executive instruc-
tions issued in this behalf particularly dated 29th March,
1967, 22nd May, 1967, 8th November, 1967 and 19th July, 1973
referred to above which applied to their absorption.
Having heard learned counsel for the parties and M.C.
Katarpanch, respondent No. 15 in C.A. No. 3412 of 1986, we
are, on the facts of the instant case, so far as this sub-
mission is concerned, of the opinion that the validity of
the absorption as Sales-tax Inspectors of the surplus Block
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Level Extension Officers does not deserve to be permitted to
be challenged in these appeals and that we have to proceed
on the basis that their appointment by absorption as Sales-
tax Inspectors was valid. It is true, as has been pointed
out on behalf of the existing Sales-tax Inspectors, that the
surplus Block Level Extension Officers when called for
interview for the purpose of being considered suitable for
absorption were required to bear themselves the travelling
expenses and that fresh letters of appointment were issued
to them after the interview. In our opinion, however, these
circumstances are of very little significance for discerning
the true nature of their absorption. In this connection it
is of significance that no material has been brought to our
notice to indicate that the services of the surplus Block
Level Extension Officers had ever been factually terminated.
Again, notwithstanding the fact that the nature of their
appointment as Salestax Inspectors after interview was
temporary, they were allowed to uninterruptedly continue to
hold the post of Sales-tax Inspector and were subsequently
not only confirmed on that post but were also given ad hoc
promotions as Assistant Sales-tax Officers. Another circums-
161
tance which is of significance in this behalf is that no
relief for the quashing of their appointments was sought for
by the existing Sales-tax Inspectors in the writ petition
flied by them before the High Court nor was, as is apparent
from the judgment appealed against, any such relief pressed
before the High Court. In fact, even the fixation of their
pay as Sales-tax Inspectors consequent upon their absorp-
tion, which was done in accordance with the executive in-
structions referred to above, does not seem to have been
ever challenged. On the other hand it is specifically stated
in the judgment appealed against: "It is not in dispute that
the respondents 4 to 88 were absorbed in the Sales-tax
Department between 13.2 1967 to 28.9.1970 although the
respondent State adds that they were in Government service
in other governmental departments and some of them right
from the year 1948 long before the petitioners were appoint-
ed as Sales-tax Inspectors." It is for these reasons that we
are of the opinion that now it is too late a stage to chal-
lenge the validity of appointment of the absorbed Sales-tax
Inspectors on that post.
Now coming to the question of seniority, the term
"absorbed" in Service Jurisprudence with reference to a post
in the very nature of things implies that an employee who
has not been holding a particular post in his own right by
virtue of either recruitment or promotion to that post but
is holding a different post in a different department is
brought to that post either on deputation or by transfer and
is subsequently absorbed in that post whereafter he becomes
a holder of that post in his own right and loses his lien on
his parent post. No one asserts that the instant one was a
case of the absorbed Sales-tax Inspectors being initially
sent on deputation from the post of Block Level Extention
Officer to the post of Sales-tax Inspector and being subse-
quently absorbed in that post. Consequently, when as pointed
out by the High Court, it was not disputed that the surplus
Block Extension Officers had been absorbed in the post of
Sales-tax Inspectors it is obvious that it was a case of
absorption by transfer. In this connection it would be
useful to recapitulate that the minutes of the meeting
referred to above held on 30th September, 1965 laying down
the principles of procedure for absorbing the surplus per-
sonnel specifically stated that the surplus staff which was
to be "absorbed" should be treated as having been trans-
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ferred from one post to another so that there may be no
break in their service."
The question as to whether the fixation of seniority by
the Government was valid or not has to be considered in the
aforesaid background. The crux of the problem, therefore, is
as to what princi-
162
pie should govern the fixation of inter se seniority of the
Sales-tax Inspectors who were directly recruited as such,
namely, the existing Sales-tax Inspectors and those who
became holders of that post by absorption on transfer from
one Government department to another, namely, the absorbed
Sales-tax Inspectors. The competing claims are, as already
indicated above, that whereas the existing Sales-tax Inspec-
tors contend that the date of confirmation alone was not
relevant and that even the period between the dates of their
actual appointment and confirmation should be counted for
fixing their seniority, the contention of the absorbed
Sales-tax Inspectors is that the entire period of their
service as Block Level Extension Officers should also be
taken into consideration while fixing their seniority.
In so far as the legal position with regard to fixation
of seniority is concerned it may be pointed out that a
Constitution Bench of this Court in Direct Recruit Class 11
Engineering Officers’ Association v. State of Maharashtra
and Others, [1990] 2 SCC 715 after a conspectus of various
earlier decisions has inter alia held:
"(A) Once an incumbent is appointed to a post according to
rule, his seniority has to be counted from the date of his
appointment and not according to the date of his confirma-
tion.
The corollary of the above rule is that where the initial
appointment is only ad hoc and not according to rules and
made as stop-gap arrangement, the officiation in such post
cannot be taken into account for considering the seniority.
(B) If the initial appointment is not made by following the
procedure laid down by the rules but the appointed continues
in the post uninterruptedly till the regularisation of his
service in accordance with the rules, the period of offici-
ating service will be counted."
On its basic there is obviously substance in the asser-
tion of the existing Sales-tax Inspectors that the period
from the respective dates of their appointments to those of
their confirmation deserve to be counted while fixing their
seniority. As regards the absorbed Sales-tax Inspectors,
even if their initial appointment as Sales-tax Inspector is,
for the sake of argument, taken to be irregular as was
sought to be urged before us on behalf of the existing
Sales-tax Inspectors, the said appointment not being only ad
hoc and they having continued in the
163
pOSt uninterruptedly till the regularisation of their serv-
ice, which event even if may be treated to have taken place
on 15th February, 1980 when they were granted retrospective
confirmation with effect from 31st March, 1967 they are
entitled to have the entire period of their service as
Sales-tax Inspector counted inasmuch as their confirmation
at any rate with effect from 15th February, 1980 cannot be
said to be in violation of any rule. The question which ,
therefore, remains to be considered is about the period
during which they worked as Block Level Extension Officers
before they were absorbed as Sales-tax Inspectors. Is the
entire period to be taken into consideration or only a part
of it and if so, what part or is the said period to be
ignored in its entirety, are questions which call for an
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answer.
In R.S. Makashi v. I.M. Menon, [1982] 1 SCC 379 the
question of seniority arose among the members of the staff
who, for maintaining a new department, had been drawn from
four different sources. It was pointed out that in such a
situation it was inevitable that some reasonable principles
had to be formulated for the determination of the inter se
seniority of the personnel appointed to work in the differ-
ent categories of posts in the new organisation. Rules for
fixation of seniority were framed by the Government, validi-
ty of some of which was challenged on the ground of being
violative of Articles 14 and 16 of the Constitution. Rule
4(a) was one such rule. A learned Single Judge of the High
Court struck down that rule. While reversing the judgment of
the High Court it was held:
"Almost the entire reasoning of the learned Single Judge is
based on an assumption that there is an invariable "normal
rule" that seniority should be determined only on the basis
of the respective dates of appointment to the post and that
any departure from the said rule will be prima facie unrea-
sonable and illegal. The said assumption is devoid of any
legal sanction. We are unable to recognise the existence of
any such rigid or inflexible rule. It is open to the rule-
making authority to take a note of the relevant circum-
stances obtaining in relation to each department and deter-
mine with objectivity and fairness what rules should govern
the inter se seniority and ranking of the personnel working
in the concerned departments and the courts will only insist
that the rules so formulated should be reasonable, just and
equitable. Judged by the said test of reasonableness and
fairness, the action taken by the Government in equating the
clerical personnel which had rendered two years’ regular
164
service in other departments with the temporary Supply
Inspectors of the CFD and in directing as per impugned Rule
4(a) that their inter se seniority shall be determined with
reference to the length of service calculated on the basis
of the said equation cannot be said to be in any way dis-
criminatory or illegal. We are unable to accept as correct
the view expressed by the learned Single Judge of the High
Court that "while fixing the seniority in the higher post,
it is not open to take into consideration any service ren-
dered in the lower post and that by itself spells out dis-
crimination." (Emphasis supplied).
Relying on the aforesaid decision it was held in Wing
Commander J. Kumar v. Union of India and Others, [1982] 3
SCR 453:
"Equally untenable is the further plea advanced by the
appellant that since the R & D is an integrated cadre, there
cannot be any further classification of the officers com-
prised therein on the basis of the length of service put in
by them in their respective parent services prior to their
permanent statement in the R & D. As pointed out by this
Court in the decision in R.S. Makashi v. I.M. Menon,
(supra), it is a just and wholesome principle commonly
applied in such situations where persons from different
sources are drafted to serve in a new service that their
pre-existing length of service in the parent department
should be respected and preserved by taking the same into
account in determining their ranking in the new service
cadre. Such a provision does not involve any discrimination
violative of Article 16 of the Constitution."
In K. Madhavan and Anr. etc. v. Union of India and Ors.
etc., [1988] 1 SCR 42 it was held that it will be against
all rules of service jurisprudence if, when a Government
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servant holding a post is transferred to the same or an
equivalent post in another Government Department, the period
of his service in the post before transfer is not taken into
consideration in computing his seniority in the post to
which he is transferred. The transfer cannot wipe out his
length of service in the post from which he has been trans-
ferred.
It is true that R.S. Makashi and Others as well as Wing
Commander J. Kumar, (supra) were cases where new service was
created in our opinion, on that ground alone the principle
enunciated
165
therein cannot be treated as to be confined only to a case
where new service was created. The observations made therein
are obviously based on equitable principles and it is those
principles which were applied in the case of K. Madhavan
(supra).
Reliance was placed by learned counsel for the absorbed
Salestax Inspectors on the decision of this Court in the
case of K.C. Vasudeva and Others v. Union of India and
Others, [1980] Suppl. SCC 341 where it was held that fixa-
tion of seniority between existing employees and those taken
over from an autonomous body after its dissolution must be
based not on mere compassion but on rational criteria having
full consideration for rights of other parties affected and
having nexus with efficiency in administration. Government
must apply its mind and give reasons for its exercise of
power to give relaxation to one class of employees. In our
opinion the said decision in clearly distinguishable. First-
ly, that was a case where employees not of another Govern-
ment Department but of an autonomous body were brought in a
Government Department and in the matter of determination of
seniority the period during which they had worked in the
autonomous body was taken into account. Emphasis was placed
in that case on this circumstance when it was pointed out
that such employees were new entrants into Government serv-
ice and even so they were given credit for their former
service in the autonomous body. Secondly, unlike the instant
case in that case credit for the entire period of Service in
the autonomous body seems to have been given. What is,
however, noteworthy is that it was specifically stated in
paragraph 5 the report of that case that "it is perfectly
within the power of the Government to have a rationalisation
of the entire situation and if it thinks fit even to give
weightage or credit for service" in the autonomous body. The
principle of giving weightage was approved by this Court in
an earlier decision also in the case of S.G. Jai Singhani v.
Union of India, [1967] 2 SCR 703 and is a well recognised
principle in the sphere of determination of seniority.
In view of the legal position enumerated above, it is
true that the claim of the existing Sales-tax Inspectors
that the period between the dates of their appointment and
confirmation should be counted seems to be justified but it
is equally true that the claim of the absorbed Sales-tax
Inspectors that the period during which they worked in their
parent Department should also be taken into account, does
not obviously appear to be off the mark. If the period
between the dates or’ appointment and confirmation of the
existing Sales-tax Inspectors was counted for fixing their
seniority but the period during which the
166
absorbed Sales-tax Inspectors worked in their parent Depart-
ment was ignored, the former would have obviously been
placed on a more advantageous position but only to the
prejudice of the latter as it would have amounted to sacri-
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ficing their interest. If, on the other hand, the periods
referred to above in case of both the sets of Sales-tax
Inspectors was taken into account, it would have resulted in
granting benefit of the absorbed Sales-tax Inspectors at the
cost of the existing ones and presumably including those who
had already been promoted as Assistant Sales-tax Officers,
even prior to 22nd May 1967, inasmuch as the period during
which they had served in their parent Department was much
longer than the period of officiation of the existing
Sales-tax Inspectors. This was the situation with which the
State Government was faced and it was its duty to evolve
some policy or equitable formula which did justice, as far
as possible, to the competing claims of both the sets of
Sales-tax Inspectors. It was apparently in search of such a
formula that the State Government appears to have given
retrospective confirmation to the absorbed Sales-tax Inspec-
tors from a presumed date and determined the seniority on
the basis of the dates of confirmation. This section can be
justified even on the well recognised principle referred to
above of giving weightage in the matter of determination of
seniority. The principle formulated in the case of R.S.
Makashi (supra) with reference to a rule of seniority namely
that "the Courts will only insist that the rules so formu-
lated should be reasonable, just and equitable" with the
result that if they meet this requirement the Court will not
interfere, would in our opinion apply even to a case of
executive action of determining seniority if the above test
is satisfied. It is also relevant to point out that no
statutory rule has been brought to our notice which may run
counter to the decision mentioned above taken by the govern-
ment. The two rules to which our attention has been invited
are (i) Madhya Pradesh Civil Services (General Conditions of
Service) Rules 1961 and (ii) Madhya Pradesh Sales-taX Subor-
dinate Class III Executive Service Recruitment Rules, 1966.
In so far as the 1966 Rules are concerned, they do not
contain any provision about seniority. The 1961 Rules, no
doubt, deal with seniority in Rule 12 but having gone
through the said Rule we are of the opinion that the case of
the absorbed Sales-tax Inspectors does not fail under any of
the categories enumerated therein.
At this place, we may mention that nothing substantial
has been brought to our notice by either party on’ the basis
of which it could safely be said that on the peculiar facts
and circumstances of this case already referred to above,
the decision of the State Government did not satisfy the
above said test and was either arbitrary or discriminatory.
167
In this view of the matter. we are of the opinion that
it was not a fit case for interference by the High Court in
exercise to its jurisdiction under Article 226 of the Con-
stitution of India with the decision of the State Govern-
ment.
In the result, these civil appeals are allowed, the
common judgment of the High Court in the two writ petitions
referred to above set aside and both the said writ petitions
are dismissed. In the circumstances of the case, however,
the parties shall bear their costs in this Court as well as
in the High Court.
P.S.S. Appeals
allowed.
168