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PETITIONER: GURCHARAN DASS VAID

       Vs.

RESPONDENT: STATE OF PUNJAB & ORS.

DATE OF JUDGMENT24/09/1971

BENCH: REDDY, P. JAGANMOHAN BENCH: REDDY, P. JAGANMOHAN VAIDYIALINGAM, C.A.

CITATION:  1972 AIR 1640            1972 SCR  (1) 896  1971 SCC  (3) 697  CITATOR INFO :  O          1974 SC1631  (18,19)

ACT: States  Reorganisation  Act,  1956, ss. 115,  117  and  127- Reorganisation  of Punjab and PEPSU-Punjab Clerical  Service Rules,  1960-No  previous approval  by  Central  Government- Applicability-Directions. given by Central Government  under s. 117--Overriding effect of.

HEADNOTE: The  appellant  was an Assistant Grade Clerk in  the  Police Department  in the State of Punjab prior  to  reorganisation and  the  4th  respondent was occupying a  similar  post  in PEPSU.  The 4th respondent was senior to the appellant.   At the time of the States reorganisation a provisional list  of persons  in service in the State of Punjab was  prepared  in 1957 and the 4th respondent was placed in a rank lower  than that of his juniors including the appellant.  The  appellant was  subsequently  promoted  and on March 1,  1962,  he  was confirmed  as  Deputy  Superintendent  (Office).   The   4th respondent’s  seniority was however rectified in  the  final list  and he was promoted as Deputy Superintendent  (Office) in  March 1960.  On April 18, 1965, the  Central  Government issued  an order under s. 117 of the  States  Reorganisation Act,  1956, directing the Government of Punjab to  determine the seniority, pay and other matters concerning the officers included in the final gradation list in accordance with  the principles set out therein.  The 4th respondent was promoted on  26th  July, 1966 as officiating Superintendent  and  was given  March 1, 1962, as the deemed date of confirmation  as Deputy  Superintendent in accordance with the  directive  of the  Central  Government.   He had thus  ’become  senior  by virtue  of  his  seniority in the  grade  of  Assistants  in accordance with r. 8 of Punjab Rules of 1933. The  appellant filed a writ petition contending  that  since the  promotion  of  4th respondent  was  overlooked  at  the beginning and since the appellant was promoted earlier  than the 4th respondent the confirmations and deemed date must be from  the date of actual promotion according to rule  10  of the Punjab Police Clerical Service (State Service Class 111) Rules,  1960.   By the time the writ petition  came  up  for hearing  the 4th respondent was given April 6, 196l  as  the

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deemed  date of promotion as Superintendent after  comparing his  record  as Deputy Superintendent with that  of  another officer  who  was senior to the appellant and who  was  also promoted  as officiating Superintendent.  On  26th  February 1969,  the  4th respondent was confirmed  as  Superintendent with effect from January 29, 1963.  The High Court dismissed the appellant’s writ petition. Dismissing the appeal to this Court, HELD,:    (1)  The Punjab Clerical Service Rules of 1960  do not  apply  to  persons governed by s.  115  of  the  States Reorganisation  Act.   They are governed only by  the  rules which immediately prior to the reorganisation governed them. In  the present case, the Punjab Rules of 1933 governed  the appellant and the PEPSU Rules of 1933 governed the 4th  res- pondent.  Those rules were identical, so that, under r. 8(d) the seniority of the members of the service holding the same posts shall be determined by the dates of their  substantive appointment  to  such posts, provided that, if two  or  more members are subsequently appointed on the same date, in 897, the  case  of the members who are both or all  recruited  by promotion   seniority  shall  be  determined  according   to seniority  in the appointments, from which the  members  are promoted. [904 E-H] (2)  The 1960 rules cannot also apply because they were  not issued with the previous approval of the Central  Government under  s. 115.  Therefore, only those directions  which  the Central Government could give under s. 117 read with s.  127 of the ’States Reorganisation Act would govern the inter  se seniority  of  the  appellant and the  4th  respondent.   It cannot also be contended that when the 1960 rules were  made by  the  Punjab  Government  they must  be  deemed  to  have received  the previous, approval of the Central  Government. The  proviso  to, s. 115(7) is clear’  and  categorical  and therefore,  previous approval must not be presumed but  must be  either  categorically  given or  the  approval  must  be unmistakably  apparent from the correspondence  between  the State and Central Governments. [905 G-H; 906 F-G] Mohammed  Bhakar v. Y. Krishna Reddy, Services Law  Reporter (Vol.  IV) 1970, 768, followed. Raghavandra  Rao  v.  Deputy  Commissioner,  South   Kanara, A.I.R.. 1956 S.C. 136, explained. (3)  In the present case, the Government of India had  given directions.  Under s. 127 of the States Reorganisation  Act, an  overriding effect is given to such directions  and  they would   prevail  against  all  other  service  rules.    The directions  show that whatever promotions were made  on  the basis  of  the  provisional gradation  list  prior  to  27th February,  1961, should not be disturbed but the  claims  of officers  for  future promotion on the  basis  of  seniority determined in accordance with the principles stated  therein was not to be prejudiced, namely, the promotions made  after 27-2-1961  on  the basis of the provisional  gradation  list would be reviewed to the extent necessary to give effect  to the  claims  of  the officers who are senior  in  the  final gradation  list to the officers who have been promoted;  and wherever  applicable,  the directions should be  treated  as being  without prejudice to the principles of  promotion  on merit.   Pursuant  to  those directions  the  Government  of Punjab  granted  to the 4th respondent the  deemed  date  of confirmation as Deputy Superintendent with effect from March 1, 1962. [900 F; 907 B-F] (4)  The  4th respondent was never superseded on  merit  and the   appellant  was  not  promoted  on  merit.    The   4th respondent’s promotion was made late due to an error in  the

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provisional   list  which  was  later  rectified’   by   the Government.    He  was  not  only  found  to  be  fit,   but subsequently, on a comparison of records, he was found to be superior to another officer who was senior to him and senior to  the appellant.  In any case among the promotees  to  the Superintendent’s  post  the 4th  respondent  was  definitely senior to the appellant. [903 B-G; 904 B-.D] (5)  The  appellant’s specific prayer in his  writ  petition that  he  should’  be  deemed  to  have  been  confirmed  as Superintendent   from   17-10-1966   having   been   granted subsequently, he was not justified in making the unfair  and unjust  claim  that the deemed date of  the  4th  respondent should  be  quashed.  No injustice had been  caused  to  the appellant  because,  he is now occupying the post  which  he would  have occupied otherwise, and future promotion  would not be determined by inter se seniority but on, a  selection basis, depending on merit. [906 H; 907 A-B, G] 898

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 83 of 1971. Appeal  by special leave from the judgment and  order  dated May 20, 1970 of the Punjab and Haryana High Court in Letters Patent Appeal No. 171 of 1970. The appellant appeared in person. H.   L. Sibbal, Advocate-General, Punjab and R. N. Sachthey, for respondents Nos. 1 to 3. The respondent No. 4 appeared in person. The Judgment of the Court was delivered by P.   Jaganmohan  Reddy, J.-This appeal is by  Special  leave against  the summary rejection of the Letters Patent  appeal challenging the Judgment of a Single Judge of the, Punjab  & Haryana  High Court.  The appellant was an  Assistant  Grade Clerk in the Police Department in the State of Punjab  prior to  its Reorganisation.  Respondent 4 was also  occupying  a similar  post  in  the Patiala & East  Punjab  States  Union (hereinafter  called  ’Pepsu’) as Head Assistant  which  was equivalent to the post of an Assistant.  At the time of  the States  reorganisation a provisional list of the persons  in this  service was prepared and published in 19.57  in  which the  4th  Respondent  was given 36th place  while  5  others namely  Prakash  Chand, Jaswant Singh, Gurcharan  Dass  Vaid (the  Appellant), Santokh Singh and Hem Raj were given  17th 18th, 19th, 20th and 21st place respectively.  Respondent  4 appealed  to  the  Govt. of India  which  under  the  States reorganisation  Act  1956  was the  competent  authority  to determine  this  question,  against  his  seniority  in  the provisional list.  While this appeal was pending  promotions were made and Prakash Chand and Jaswant Singh were  promoted as  Deputy  Superintendent  (Office) on  25-7-58  while  the Appellant  was  promoted  on 23-8-58, Hem  Raj  and  Santokh Singh.  on 6-10-58.  After these promotions were, given  the Government  of India accepted the appeal of Respondent 4  on 11-7-59 and placed him at serial No. 16 in the  provisional seniority  list i.e. over Prakash Chand.  This decision  was communicated to the Inspector General of Police on the  18th August  ’59.   The  Inspector  General  of  Police  in   the meanwhile  had  promoted  on 7th  December  ’59  five  other Persons as officiating Deputy Superintendents who were  also juniors to Respondent 4 and were in fact junior even to  the first  five  who  were  earlier  promoted.   The  respondent appealed  on 15-1-60 against the first and second  batch  of promotions  made overlooking his seniority.  It  is  alleged

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that  on  the  18th  August ’60  the  State  Government  bad examined  the service records of the 10 officials  who  were given (promotion, gave them a personal hearing and  rejected the repre-                             899 sentation  of  Respondent 4. On 9th  November  ’60,  Prakash Chand  who was at serial No. 17 and below the  seniority  of Respondent  4  as accepted by the Government  of  India  was promoted as Superintendent.  It is also alleged, though  we find  no order of the Government stating that  Respondent  4 was  not considered fit for promotion and that he  may  wait for  one  more year namely upto 18-8-1960  after  which  his fitness  or  otherwise would be determined.   The  appellant contends  that  this was a case of supersession  under  rule 6(3)  of 1933 Rules, Rule 8 of which provides that inter  se seniority   will  only  be  determined  by  the   dates   of substantive  appointment in the same post i.e. for the  pur- poses  of the same post and not for different  posts.   This averment has been made in the affidavit of the appellant but as  we  said, that since there is no specific order  of  the Government  superseding Respondent 4 we cannot  accept  this contention as valid.  This contention however is to a  large extent contradicted by the fact that soon thereafter on  the 22nd  March  1960 the Respondent was  promoted  and  assumed charge  of  his  office.  After  this  promotion  the  State Government  rejected  the appeal earlier filed by  the  Res- pondent   4  against  his  supersession.    Thereafter   the Government  on  22-1-63 confirmed Prakash  Chand  as  Deputy Superintendent  with effect from 24-12-60.   Jaswant  Singh, Gurcharan Dass Vaid the Appellant and Hem Raj were confirmed on March 1, 1962 and Santokh Singh with effect from July 17, 1952.  By another   notification dated 19-1-65 the remaining six officiatingDeputy    Superintendents      including Respondent 4 were confirmed in their    appointment     with effect from January 13, 1963. in the existing     vacancies. The Inspector General of Police in the returnfiled   by him  explained  that  the approval  of  the  Public  Service Commission  in respect of the four officials Prakash  Chand, Jaswant  Singh,  Gurcharan Dass Vaid and Santokh  Singh  was taken on a mistaken view that seniority which was determined under  the  Punjab Police Clerical  Service  (State  Service Class III) Rules 1960 (hereinafter called  ’the 1960 Rules’) which had not come into  force  in February-March  ’60  but  were  enforced  with  effect  from December 2, 1960 would govern their cases.  On this mistaken view it was said that the name of Respondent 4 was not  sent to  the  Commission  as he was considered  to  be  a  Junior Officer.  On April 18, 1965, however, the Central Government issued   an   order  under  Section  117  ’of   the   States Reorganisation  Act 1956 directing the Government of  Punjab to determine the seniority, pay and other matters concerning the  officers  included  in the  final  gradation  lists  in accordance with the principles set out below               "(1)  Promotions  made before  27th  February,               1961,   on  the  basis  of   the   provisional               gradation lists shall not be disturbed.               9 0 0               Provided  that  the  claims  of  officers  for               future  promotion  on the basis  of  seniority               determined  in accordance with the  principles               set out hereafter shall not be prejudiced.               (2)Promotions  made  after  27th  February,               1961 on the basis of the Provisional gradation               lists   shall  be  reviewed  to   the   extent               necessary  to  give  effect to  the  claim  of

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             officers who are senior in the final gradation               lists to the officers who have been promoted.               (3)The  seniority of an officer  who  would               have  been  available on  1st  November  1956,               should  be counted from the date on  which  an               officer  junior to him had started  continuous               officiation in the higher post because of  his               promotion  under  the  provisional   gradation               lists.               (4)The  pay of an officer  whose  promotion               and seniority is determined in accordance with               clauses  (2) & (3) shall be fixed at  a  stage               which he would have attained in the time-scale               of the higher post if he had been promoted to               that post on the date set out in clause (3);               Provided  that  he shall not  be  entitled  to               arrears  of pay for the period to the date  of               his actual promotion.               Action  as  aforesaid  may  be  taken  without               prejudice  to the principles of  promotion  on               merit wherever applicable". The provisions of Sec. 127 of the States Reorganisation  Act gave  an  overriding effect to the directions given  by  the Central Government which would prevail against rules of  all other services.  It appears that one Ram Narain Bahl one  of the six persons who were confirmed by the order dated  19-1- 65  alongwith  Respondent 4, made a  representation  against that  order  and the Inspector General of  Police  issued  a notification  on  27-7-66 fixing the seniority  of  the  six Deputy  Superintendents to whom the notification of  19-1-65 related, as a result of which Respondent 4 became senior  to the  other five.  Vishwanath Sharma one of the six  affected by  that  order  who  was  appointed  on  7-12-59  prior  to Respondent   4  filed  a  Writ  Petition   challenging   the notifications dated 19-1 -65 as well as the one dated  27-7- 66.  In view of the fact that when the Writ Petition came up for  hearing before the Single Judge of the High  Court  the Inspector General made a statement that the question of  the seniority  of  various officers concerned would  be  decided afresh and it was prayed that the case may be dismissed.  In that case Respondent 4 was Respondent 11 and he also  raised no objection to the Writ Petition being dismissed, 9 01 as  long as it did not affect him.  By the time  the  matter was  adjourned  and came up for hearing on 27-1-67  a  fresh notification  had been issued on 17-1-67 according to  which different  dates  of  confirmation in  the  rank  of  Deputy Superintendents  were given to the respective  persons.   In view of this, That Writ Petition was dismissed on the ground that  the  impugned  orders  had  been  superseded  by   the Government  itself  and that Vishwanath Sharma would  be  at liberty to file another Writ Petition challenging the  order dated  17-1-67  if  he  was so  advised.   It  may  here  be mentioned  that  Respondent 4 was  promoted  as  officiating Superintendent  on July 26, 1966 and he was given  March  1, 1962   as   the  deemed  date  of   confirmation   as_Deputy Superintendent  in  accordance  with the  directive  of  the Central  Government dated 18th April-’65 by an  order  dated December  7/9, 1966.  The appellant filed an appeal  against that  order on December 22, 1966.  It is unnecessary to  set out   the  various  views  which  the  several   Departments expressed  in  this  regard  while  processing  the   appeal including  that of the Chief Secretary, Legal  Rememberencer and  the  Advocate  General, as that will  not  in  any  way determine  the question raised in this appeal.  What  really

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matters  is that the appeal was rejected on  26-11-68  after the  Writ  Petition was filed by  the  Appellant.   Sometime before  the  appeal  of  this  Appellant  was  rejected  the Inspector  General on 19th October ’68 issued the  following notification  published  in the Gazette dated  1st  November 1968 :-               "Promotion     :    Subsequent    upon     the               implementation of the dir active issued by the               Government of India, Ministry of Home Affairs,               vide  their order No. 17/4/’  60-SR(S),  dated               the  18th  April,  1965, read with  No.  17  /               10/67-SR(S) dated the 24th February, 1968, the               President  of India is pleased to give  deemed               date     of    promotion    as     officiating               Superintendent  (Office) to Shri Kishan  Chand               (Respondent  4) from April 6, 1961.   He  will               got the benefit of increments from 6th  April,               1961,  but will not be entitled to arrears  of               pay for the period from April 6, 1961 to  July               25, 1966". Thereafter,   by  notification  dated  February  26,   1969, respondent  4  was confirmed as Superintendent  with  effect from  January  29, 1963, the date from which  his  immediate junior,  Jaswant  Singh had been confirmed. By  this  order Jaswant  Singh  (one  of the 1 1 persons  who  were  earlier confirmed)  was  deconfirmed with effect from  September  2, 1965, on which date a permanent vacancy occurred due to  the retirement of Shri Gurbux Singh Brar. The appellant did not however challenge these two  aforesaid notifications as they had been published after the filing of the 902 .rm60 Writ  Petition.   The  learned  Judge  who  heard  the  Writ Petition   of  the  appellant  however  decided   with   the concurrence of the Counsel on both sides, ;to adjudicate  on the  validity of both these notifications also in  order  to see whether any relief can be granted to the appellant. It  may  also  be mentioned that after the  deemed  date  of confirmation   as   Deputy  Superintendent  was   given   to Respondent  4 as March 1, 1962 with effect from  which  date Jaswant-Singh, the appellant and Hem Raj had been confirmed, it was considered that Respondent 4 had become senior to all of them by virtue of his seniority in the grade of Assistant in  accordance  with Rule 8 of 1933 rules and  in  order  to render  him justice in accordance with the directive of  the Central  Government  dated  April 18,  1965,  his  case  was reopened  so  as to consider whether he could be  given  the deemed date of promotion as Superintendent with effect  from April  6,  1961,  on  which date,  Jaswant  Singh  had  been promoted  as  officiating Superintendent.  To this  end  the record  of Respondent 4 and Jaswant Singh were compared  and the Inspector General of Police was of the opinion that  the records of Respondent 4 as officiating Deputy Superintendent was  superior  to that of Jaswant Singh.   A  reference  was thereafter made to the Public Service Commission to find out whether  Respondent  4  was fit to  be  given  promotion  as officiating  Superintendent  with effect from  6-4-61.   The records  of Respondent 4, Jaswant Singh, the Appellant,  Hem Raj  and  Santokh  Singh were sent  to  the  Public  Service Commission  which by its Memorandum dated the 14th July  ’56 informed the Inspector General of Police that the Commission considered  Respondent 4 suitable for officiating  promotion as  Superintendent (Punjab Secretariat Service) with  effect from 6-4-61.

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The  appellant claims that he should have been confirmed  as Superintendent  with effect from 17-10-66 when  a  permanent vacancy  arose.   The  Inspector General of  Police  in  his return stated that the Appellant’s case was being considered as  Superintendent  with effect from October  17,  1966  for which  the approval of the Public Service Commission has  to be obtained.  The main argument before the learned Judge  of the High Court of Punjab and Haryana as well as before us is that since the promotion of Respondent 4 was overlooked  and since  the Appellant and others were promoted  earlier  than Respondent 4, the confirmations and deemed date must be from the  date  of actual promotion according to rule 10  of  the Rules of 1960. The  chronology  of  the  various  orders,  representations, notifications  etc. with respect to the contestants in  this appeal show that 903 even  16  years  after the  States  Reorganisation  Act  the trouble  relating  to integration of services,  fixation  of seniority, promotions,. provisional lists, confirmations and deemed,  dates  etc. still continue to trouble  the  Courts, without really affording much satisfaction to the  aggrieved persons  mostly because of the confusion  and  complications which  have been the result of long and protracted  adminis- trative action and interaction.  In so far as this  petition is  concerned we find little difficulty in  simplifying  the issues  to  be  determined by  us.   These  are-(1)  whether Respondent  4  was  senior in service as  Assistant  to  the Appellant, (2) whether Respondent 4 was superseded on merits and  the  appellant  and others who  were  promoted  in  two batches  were  promoted  purely on merit,  (3)  whether  the directions  of  the  State  Government to  give  a  date  of confirmation  to the 4th Respondent both as  an  officiating Deputy  Superintendent  and officiating  Superintendent  are ultra  vires  the powers of the State Government  under  the rule or, (4) whether they were in accord with the directions of  the Government of India under the States  Reorganisation Act. Admittedly Respondent 4 is senior to the Appellant and over- some others, who are without doubt senior to the  appellant. As we, understand, the appellant wants to take advantage  of the  fortuitions  circumstance  of Respondent  4  not  being promoted at the time when others who are juniors to him were promoted  because in the provisional gradation list  he  was wrongly given a very low seniority, and which was  rectified by the Government of India.  Instead of giving effect to  it by  promoting him, the appointing authority was playing  for time probably because they wanted to avoid reversion of  the previous promotees and on that score wanted to justify their act ion in not promoting him on the ground’ that he was  not fit.   But as we have shown in the narration of  facts  even before  his  representation was rejected  Respondent  4  was promoted,  so that the main ground upon which the  appellant relies  for  his  continued seniority  over  him  cannot  be availed  of.  In so far as Respondent 4 is concerned he  was unaffected  by his representation being rejected, as he  was already  promoted, nor was his alleged unfitness appears  to be  a  valid ground because he was found subsequently  on  a comparison of the records not only fit but superior in merit to Jaswant Singh a person senior to him and hence senior  to the  Appellant.   This opinion ’was also  confirmed  by  the State Public Service Commission and Respondent 4 was given a deemed date of promotion with effect from 6-4-1961 the  date from  which  Jaswant Singh was promoted  as  an  officiating superintendent.   Jaswant  Singh  does  not  appear  to   be

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aggrieved  nor  has  he been made a  party.   The  appellant however argues that Jaswant Singh was transferred to Haryana and  so  he has no ground for complaint.   This  ’Contention cannot be valid because, 904 even if that be so the appellant should have challenged that order  of  14th July 1967, as rectified on the ground  of  a typographical error by the letter of 2nd July 1968,  because as  long  as that order is valid he cannot  claim  seniority over Respondent 4. It cannot be that Respondent 4 is  senior to Jaswant Singh a person admittedly senior to the Appellant and yet he considered junior to the appellant, which will be the effect, if the aforesaid order remains in force. Apart  from  this defect, as we have pointed  out  the  main basis of the appellant’s attack against Respondent 4 who  is decidedly  senior and admitted by him to be so, was that  he was not found fit but when that is found to be untenable the entire   force   of   the   appellant’s   arguments   looses significance.   Yet another ground of attack  is-that  under the  seniority  rules  as  he  was  confirmed  earlier  than Respondent 4 in the post of Deputy Superintendent he will be considered  senior, but this contention is again  devoid  of merit  because Respondent 4’s case was under  consideration, that  he  was  not superseded at any time  except  that  his promotion  was made late due to an error in the  provisional list  and  that  in  any case among  the  promotees  to  the Superintendent’s post, Respondent 4 is definitely senior  to the appellant by virtue of the orders of 14th July 1967  and 2nd July 1968. The appellant has referred to rule 10 of the Punjab Clerical Services  Rules  of  1960 and contends  that  his  seniority should  be  determined from the date when he  commenced  his probation as against a person who started on probation later and  that under rule 11 of the said rule inter se  seniority should  be  determined  by  the  date  of  their  respective appointments.  It. may however be mentioned that these rules do  not apply to the persons governed by Section 115 of  the States  Reorganisation  Act but only by  those  rules  which immediately  prior to the reorganisation governed them.   In this case the Punjab Rules of 1933 will govern the appellant and  the--  Pepsu rules of 1933 will  govern  Respondent  4. These  rules are identical so that under rule 8  and  clause (d)  of  the proviso to these rules, the  seniority  of  the members  of  the  service holding the same  posts  shall  be determined by the dates of their substantive appointment  to such  posts  provided  that  if  two  or  more  members  are subsequently  appointed  on the same date, in  the  case  of members  who  are  both  or  all  recruited  by   promotion, seniority shall be determined according to seniority in  the appointments  from  which the members are promoted.   It  is contended  that these rules are re-pealed but in so  far  as the  services which are to be governed by the provisions  of the  States Reorganisation Act their conditions  of  service are  subject  to the directions of the Government  of  India which determine their inter se seniority.  Such  directions, as we have noticed, had been given by the Government 905 of India more particularly those dated the 18th April  1,965 contained  in Annexure G. The relevant directions  contained in paragraph, (1) and (2) are as follows :               "  In  exercise  of the  powers  conferred  by               Section  117 of the States Reorganisation  Act               1956  (Act 37 of 1956) the Central  Government               hereby  directs  the Government of  Punjab  lo               determine the seniority, pay and other matters

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             concerning the officers included in the  Final               Gradation   Lists  in  accordance   with   the               principles set out below               (1)Promotions  made before  27th  February,               1961,   on  the  basis  of   the   Provisional               Gradation Lists shall not be disturbed.               PROVIDED  THAT  THE  claims  of  officers  for               future  promotion  on the basis  of  seniority               determined  in accordance with the  principles               set out hereafter shall not be prejudiced.               (2)Promotions made after 27th February 1961               on  the  basis of  the  provisional  gradation               lists   shall  be  reviewed  to   the   extent               necessary  to  give effect to  the  claims  of               officers who are senior in the Final Gradation               Lists to the officers who have been promoted.               Action  as  aforesaid  may  be  taken  without               prejudice  ,to the principles of promotion  on               merit wherever applicable". Pursuant to this the Government of Punjab by its order dated 9th December 1966 (Annexure ’H’) granted to Respondent 4 the deemed   date  of  confirmation  as  Deputy   Superintendent (Office) with effect from 1-3-1962 the date from which  Shri Jaswant Singh officiating Deputy Superintendent (Office) was confirmed in his appointment.  We have already discussed the position of the Appellant vis-a-vis the seniority of Jaswant Singh in the post of officiating Superintendent and the same reasoning will apply equally to the position relating to his promotion   to  the  Deputy  Superintendents   post.    When confronted with this situation the Appellant takes his stand on the 1960 rules.,. which however whatever be the merits of the  contention thereunder, cannot apply because  they  were not  issued  with  the  previous  approval  of  the  Central Government under Section 115 and only those directions which the Central Government can give under Sec. 117 read with  c. 127  of  the  Reorganisation Act will govern  the  inter  se seniority  of the Appellant and Respondent 4. The  Appellant says that in Raghavendra Rao v. Deputy Commissioner South 906 Kanara(1) this Court had observed that the previous approval will  be presumed.  This construction would be a  misleading of the judgment because. in that case the Central Government had   already  in  a  Memorandum  addressed  to  all   State Governments after examining the various aspects agreed  with the  view  of  State  Governments  that  it  would  not   be appropriate  to  provide  any protection in  the  matter  of travelling  allowance, discipline, control,  classification, appeal,  conduct, probation and departmental  promotion;  in other  words it means that the State Governments  might,  if they  so  desire, change service rules as indicated  in  the Memorandum, which would amount to ’previous approval’ within the proviso to Sec., 1 1 5 (7 ) to the making of the  Mysore General  Services( Revenue Subordinate  Branch)  Recruitment Rules 1959, so as to make them valid.  The circumstances  in which  such a direction was given justified this Court  from coming to the conclusion that ’previous approval’ was  given to  the  making of the rules.  In any case in  a  subsequent decision of this Court in Mohammed Bhakar & Ors. v.  Krishna Reddy & Ors.(2), it was explained that generally the remarks like that contained in Raghavendra Rao’s case were not meant to  lay down the proposition contended for namely  that  the previous approval of the Central Government was not required for prescribing departmental examinations as a qualification for  promotion.  Any rule which affects the promotion  of  a person  relates  to his condition of service  and  therefore

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unless  there be the approval of the Central  Government  in terms  of proviso to sub-sec. (7) of Sec. 115, a rule  which lays down the passing of certain departmental examination as a condition for promotion of a person who was an allottee to the  new State of Mysore would be in violation  of  sub-sec. (7) of Sec. 115. There is in our view no force in the contention urged by the Appellant  before  us  that the rules of 1960  made  by  the Punjab  Government  must  be deemed  to  have  received  the previous approval of the Central Government.  The proviso to sub-sec.  (7)  of  Sec. 115 is  clear  and  categorical  and therefore previous approval must not be presumed but must be either   categorically  given  or  that   approval   becomes unmistakably  apparent from the correspondence  between  the State Governments and the Central Government. One  other ground upon which the petitioner’s case does  not merit  acceptance  is that his specific prayer in  the  Writ Petition was that under the rules he be deemed to have  been confirmed  as  Superintendent from  17-10-66.   The  learned Advocate  General for the State of Punjab has stated  before us that since the Judgment of the High Court and  Government has granted the prayer (1) AIR 1965 SC 136. (2) Services Law Reporter (Vol.  IV) 1970 p. 768. 907 of  the  Appellant and has confirmed him  as  Superintendent from  17-10-66  The appellant however is not  satisfied  and wants  the  orders giving the Respondent 4 the  deemed  date quashed.   Apart  from this claim being  unfair  and  unjust particularly having regard to the fact that the appellant is trying  to canvass all kinds of technical contentions  which art-,  unwarranted  in order to project his  seniority  over Respondent 4 who is admittedly senior to him, the  direction of the Central Government and those of the State  Government in   implementation  of  those  directions,  establish   the seniority  of  the 4th Respondent over the  Appellant.   The directions  to  which we have referred  show  that  whatever promotions  were  made, have been made on the basis  of  the provisional  gradation list prior to 27-2-6 1.  Though  they should  not be disturbed, the claims of officers for  future promotion on the basis of seniority determined in accordance with the principles stated therein was not to be prejudiced; namely  that promotions made after 27-2-61 on the  basis  of the  provisional  gradation list would be  reviewed  to  the extent necessary to give effect to the claim of officers who are  senior in the final gradation list to the officers  who have been promoted and wherever applicable these  directions should  be  treated  as  being  without  prejudice  to   the principles  of  promotion on merit.  We have  already  dealt with  the  contentions  that the  Respondent  4  was  denied promotion  because  he  was found unfit  and  therefore  the appellant  and others must be deemed to be promoted  out  of seniority  because  of their merit.  There is  therefore  no validity in the submission that Respondent 4 cannot be given a   deemed   date  of  confirmation  either  as   a   Deputy Superintendent or as officiating Superintendent.  In fact we are  informed  by the learned Advocate General that  no  in- justice  has  been done to the Appellant  because  even  his grouse  that if he had got his seniority he would have  been attached  to  the Inspector General and would have  got  Rs. 50/-  as allowance or special pay is no longer available  to him  because  he  is now occupying that post.   It  is  also pointed  out  to  us that the  highest  promotion  that  the Appellant or Respondent 4 can expect to have in the  service is, the post of Superintendent which both he-and

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Respondent 4 are occupying.  If either of them aspire to any post  in  a higher service that will not  be  determined  by their  inter se but on a selection basis depending upon  the respective  merits.  We only refer to this to indicate  that even  the sense of injustice which the Appellant appears  to suffer from has no justification.  The appeal is accordingly dismissed but in the circumstances without costs. V.P.S.                                                Appeal dismissed. 908