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PETITIONER: STATE OF HIMACHAL PRADESH & ANR.

       Vs.

RESPONDENT: UNION OF INDIA & ORS.  ETC.

DATE OF JUDGMENT10/04/1974

BENCH: RAY, A.N. (CJ) BENCH: RAY, A.N. (CJ) CHANDRACHUD, Y.V. KRISHNAIYER, V.R.

CITATION:  1974 AIR 1276            1974 SCR  (3) 907  1975 SCC  (3)  58  CITATOR INFO :  D          1989 SC 357  (21)

ACT: Punjab  Reorganisation Act, 1956, s. 82(6)--Punjab  officers allocated to Himachal Pradesh--Mode of integration of Punjab officers and Himachal Pradesh officers.

HEADNOTE: The appellants were upgraded from the post of Sub-Inspectors to  Inspectors of taxation in the former State of Punjab  on 1st  April,  1966.   They were allocated  to  the  State  of Himachal  Pradesh on 1st November, 1966, the  appointed  day tinder the Punjab Reorganisation Act, 1966.  The respondents were Excise SubInspectors in Himachal Pradesh on that  date. On   14th  February,  1967,  the  Central  Government   gave instructions   for  equating  posts  for  the   purpose   of integration  in the services.  On the 26th April, 1969,  the Central  Government  wrote to the State Government  that  45 posts  of  Excise  and Taxation  SubInspectors  in  Himachal Pradesh  may  be abolished and in their place  33  posts  of Excise  and Taxation Inspectors may be created.   The  State Government  gave  effect to the directions  of  the  Central Government   and  upgraded  the  Excise  Sub-Inspectors   to Inspectors,  with  effect  from 1st May,  1969.   Thus,  the upgrading  was  done  with  the  sanction  of  the   Central Government in accordance with the provisions of s. 82(6)  of the  Act.  On 29th May, 1971 the State of Himachal  Pradesh, by  an executive decision. changed the date of upgrading  of the respondents from 1st May, 1969 to 1st April, 1966. The  State prepared two seniority lists in one of which  one of  the appellants was mentioned along with the officers  of Himachal  Pradesh,  and in the other, the  other  appellants were shown as juniors to the officers of Himachal Pradesh. The  State Government also appointed four Excise  Inspectors of  Himachal  Pradesh  as  Assistant  Excise  and   Taxation Officers. The  appellants  challenged (a) the change in  the  date  of promotion of the officers of Himachal Pradesh to 1st  April, 1966, (b) the two seniority lists and (c)    the        four promotions as Assistant Excise and Taxation Officers. The  High  Court set aside the two seniority lists  and  the

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four promotions and gave the following directions  regarding the  preparation  of seniority lists, namely, (i)  that  the appellants should be equated with the Inspectors of Himachal Pradesh  that  is. that all inspectors of  Himachal  Pradesh should  be taken as Excise and Taxation Inspectors and  that their cadre should be taken as ’joint; (ii) that the date of continuous  appointment in an equated post shall govern  the seniority’  (iii)  that  specific approval  of  the  Central Government  is  to be taken under s. 82(6) if  the  date  of upgradation is to be fixed as 1st April, 1966; and (iv) that the rules of promotion to the posts of Assistant Excise  and Taxation  Officers  should  be prepared  after  getting  the approval of the Central Government. In  appeal to this Court, the appellants contended that  the directions  given  regarding the  preparation  of  seniority lists should be set aside, on the ground that the appellants were deprived of their quota of promotion under r.6 of Class 111-A   Punjab  Rules,  1956,  that  the  posts  of   Excise Inspectors  and  Taxation Inspectors belonged  to  different cadres, that the appellants belonged to the Taxation  Cadre, and  that  for  promotion under the Punjab  Rules,  3  years continuous service as Inspectors was sufficient. HELD  :  (1)  If the State Government  of  Himachal  Pradesh wished to change the date of upgradation to 1st April,  1966 the  State Government cannot do so without the  sanction  of the Central Government under s. 82(6) of the Act.  The State of Himachal Pradesh not only set at naught the direction  of the 908 Central Government, but by giving a retrospective validation to the date upgradation, changed the conditions of  services of   the  appellants  to  their  disadvantage.   Hence   the direction ’that if the State Government wanted to alter  the date  of  upgradation  of posts  of  Himachal  Pradesh  Sub- Inspectors  to 1st April, 1966, the sanction of the  Central Government  should have been obtained is correct. [912  D-E, 913 H] (2)  The  other direction given by the High Court  that  the rules  for  promotion .to. the post of Excise  and  Taxation Inspector  shall be finalised after getting the approval  of the Central Government is also correct. [913 H] (3)  If   the  State  Government  wishes  to   equate    the appellants with the Inspectors of Himachal Pradesh the State of  Himachal Pradesh will have to follow the  Provisions  of the  State Reorganisation Act in that behalf.  The date  .of continuous appointment of appellants and the respondents  in the  equated posts will also have to be in  compliance  with the  provisions of the Act.  The ,appellants were  also  not heard  regarding  equation of posts and with regard  to  the seniority  lists.   Therefore, all facts  and  circumstances affecting  the service conditions of Inspectors of both  the States will have to be placed by the State Government before the Central Government for the decision and approval of  the latter under s. 82(6). [912 E-F; 913 E-F]

JUDGMENT: CIVIL  APPELLATE JURISDICTION :-Civil Appeals Nos. 1324  and 2648 of 1972. From  the Judgment and Order dated the 10th August, 1971  of the  Himachal  Pradesh  High Court at Simla  in  Civil  Writ Petition  No. 113 of 1970. V.   C.  Mahajan and R. N. Sachthey, for the  appellant  (in C.A. 1324/72 and for respondents 1-3 (in C. A. 2648).

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S.   K.  Mehta,  K.  R.  Nagaraja,  M.  Qamuruddin  for  the respondents  12-11 (in C.A. 1324/72) and for  the  appellant (in C. A. 2648). The Judgment of the Court was delivered by- RAY,  C.  J.-These two appeals are by certificate  from  the common  judgment dated 10 August, 1971 of the High Court  of Himachal Pradesh. The  State and the Taxation Commissioner,  Himachal  Pradesh are  the appellants in Civil Appeal No. 1324 of  1972.   The ten appellants in Civil Appeal No. 2648 of 1972 are Taxation Inspectors  of  the  former  State  of  Punjab.   They  were allocated  to Himachal Pradesh because of reorganisation  of the  State  of  Punjab.  The  first  seven  appellants  were confirmed   as   Taxation  Inspectors.   The   other   three ,appellants were Taxation Inspectors but were not  confirmed in that post. The  appellants  in  the former State of  Punjab  were  Sub- Inspectors  of  Taxation.  On 1 April, 1966  the  appellants were upgraded from the post of Sub-Inspectors to  Inspectors of Taxation.  When the appellants were allocated to Himachal Pradesh  on the appointed day on 1 November, 1966 they  were Inspectors  of Taxation.  The respondents were  Excise  Sub- Inspectors  in Himachal Pradesh on the appointed day.   ’The respondents were, upgraded from the position of Excise  Ins, pectors  to Inspectors with effect from 1 May,  1969.   That upgrading 909 was  with  the  sanction and under  the  directions  of  the Central  Government  in accordance with  the  provisions  of section 82(6) of the Punjab Reorganisation Act 1966 referred to  as  the  Act.  On 29 May, 1971  the  State  of  Himachal Pradesh  by  an  executive  decision  changed  the  date  of upgrading  of the respondents from 1 May, 1969 to  1  April, 1966.   This  upgrading was done by the  State  of  Himachal Pradesh  without  sanction  and  direction  of  the  Central Government under section 82(6) of the Act. The  pre-eminent question which falls for  consideration  is whether  the  conditions of service of the  appellants  have been changed to their disadvantage by the executive decision of  the  State  of Himachal Pradesh on  29th  May,  1971  to upgrade the posts of Sub-.Inspectors of Excise Departent  of Himachal  Pradesh  to Inspectors with effect from  1  April, 1966.   The  corollary  to  this  question  is  whether  the executive  decision  of  the State of  Himachal  Pradesh  is invalid  by  reason  of noncompliance  with  the  provisions contained in section 82(6) of the Act. The appellants impeached the two seniority lists prepared by the State.  ’In one of the seniority lists appellant Jadgish Ram  has  been  mentioned along with  Excise  Inspectors  of Himachal  Pradesh.  The other appellants who were  confirmed Taxation Inspectors have been shown in the second  impeached seniority  list  as  juniors  to  several  unconfirmed  Sub- Inspectors  of  Excise and Taxation  belonging  to  Himachal Pradesh.   The appellants contend that they never worked  on the  Excise side.  They further allege that their cadre  was different from that of Taxation Inspectors.  The  appellants impugned  the second seniority list on the ground  that  the Excise  and Taxation SubInspectors of Himachal Pradesh  were treated at par with Taxation Inspectors. of the former State of Punjab.  In the second seniority list there is a note  to the  effect  that  Excise  and  Taxation  Sub-Inspectors  of Himachal  Pradesh  were being promoted  and  confirmed  with effect from 1 April, 1966, and their cases were sent to  the Ministry   of  Home  Affairs  for  necessary  orders.    The appellants  impeached this note as illegal.  The  contention

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of the appellants is that the promotion and confirmation  of Excise  Sub-Inspectors’ of Himachal Pradesh could  not  take place  with  retrospective  effect so as  to  prejudice  the rights of the appellants. The  grievance of the appellants is that the seniority  list of Taxation Inspectors should have been prepared separately. The  appellants contend that while they were in  the  former State  of Punjab they belonged to Taxation Cadre  and  there was a quota fixed in the Punjab Excise and Taxation  Service Class  III-A  Rules 1936 in their favour  for  promotion  as Excise  and Taxation Officers.  The appellants contend  that they have, been deprived of this quota benefit as they  were placed  in  a  joint list  along  with  unconfirmed  Excises Inspectors of Himachal Pradesh. The   State  of  Himachal  Pradesh  appointed  four   Excise Inspectors  as Assistant Exicse and Taxation Officers.   The appellants challenged 910 those  four appointments and contended that the  benefit  of promotion should have been given to the appellants. The  principal contention of the appellants is that  section 82(6)  of the Act prohibits any change in the conditions  of service of the appellants which are disadvantageous to  them without prior sanction of the Central Government.  The State of Himachal Pradesh after the reorganisation on 1  November, 1966  asked  for directions of the Central  Government  with regard  to upgradation of Excise and Taxation  SubInspectors of Himachal Pradesh. The Central, Government gave instructions in a letter  dated 14  February,  1967 for equating posts for  the  purpose  of integration   in  ,the  services.   The  four  factors   for determining  the equation of a post are : first, the  nature and  duties  of  a post; second,  the  responsibilities  and powers  exercised  by the officer holding the post  and  the extent   of   territorial   or   other   charge   held    or responsibilities    discharged;    third,    the     minimum qualifications,  if any, prescribed for recruitment  to  the post;  and,  fourth, the salary of the  post.   The  Central Government  in  ,the  said letter dated  14  February,  1967 further  said that two factors would be taken  into  account for  determination  of  relative seniority.   First  is  the length of continuous service whether temporary or  permanent in  the  equivalent post; this should  exclude  periods  for which  an  appointment  is  held in  a  purely  stop-gap  or fortuitous  arrangement.  Second is the age of  the  person. Other factors being equal seniority may be determined on the basis of age. It is also important to consider the letter dated 26  April, 1969  written  by  the  Central  Government  to  the   State Government.  There were 45 posts of Excise and Taxation Sub- Inspectors  in  Himachal Pradesh.   The  Central  Government stated  that  those  45 posts of  Sub  Inspectors  might  be abolished and in their place 33 posts of Excise and Taxation Inspectors  might be created.  The new posts of  Excise  and Taxation  Inspectors  were  to be offered  to  the  existing incumbents  of  the  posts  of  Excise  and  Taxation   Sub- Inspectors  in  order of seniority. The  Central  Government stated that the order would take effect from 1 May, 1969. The  State  Government by letter dated 19  July,  1969  gave effect  to  the directions of the Central  Government.   The Lieutenant  Governor was pleased to accord sanction  to  the creation  of 33 permanent posts of Excise Inspectors in  the scale  of Rs. 150-10-200/10-300 in the Excise  and  Taxation Department, Himachal Pradesh with effect from 1 May, 1969. Consequent  upon  the  abolition of 12  permanent  posts  of

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Taxation  Sub-Inspectors  under  the  Excise  and   Taxation Department, Himachal Pradesh with effect from 1 May, 1969, 8 Excise and Taxation SubInspectors were rendered surplus  and they  were  appointed  as  Taxation  Inspectors  against   8 temporary posts of Inspectors created for survey  work. 911 The Central Government directed and sanctioned that Sub-Ins- pectors   :of  Himachal  Pradesh  could:  be   promoted   as Inspectors  with  effect  from 1 May, 1969.   The  State  of Himachal  Pradesh implemented that direction of the  Central Government.    Later  on  the  State  of  Himachal   Pradesh superseded the previous order and promoted SubInspectors  of Himachal  Pradesh  as Inspectors with effect from  1  April, 1966.  The  appellants contend that the  State  of  Himachal Pradesh  thereby  not  only violated the  direction  of  the Central  Government  under section 82 of the  Act  but  also changed the conditions of service of the appellants to their disadvantage  without obtaining the sanction of the  Central Government. One  of the contentions of the appellants in the High  Court was that in Himachal Pradesh the posts of Excise  Inspectors and  Taxation Inspectors belonged to different cadres.   The appellants  contended  that in Himachal Pradesh  posts  were sanctioned  separately  for  the  Taxation  and  the  Excise Departments.   The  State on the other hand  contended  that there   was  one  common  cadre  of  Excise  and   Taxtation Inspectors.   The  High  Court found  that  the  appellants, belonged to the separate cadre of Taxation Inspectors at the time  when  they  were allocated to  Himachal  Pradesh.   In Punjab  it  is also found by the High Court as a  fact  that there  were two cadres and the appellants did not belong  to the cadre of Excise Inspectors. The appellants relied on Rule 6 of Class III-A Punjab Rules, 1956.    Under  that  rule  when  any  vacancy  occurs   the Government shall determine in what manner it shall be filled provided  that 50 per cent of the vacancies shall be  filled by  direct  appointment,  25%  by  promotion  of,   Taxation Inspectors,   12-1/2%   by  transfer  of  members   of   the ministerial   establishment  of  the  Excise  and   Taxation Department.   The  appellants, therefore, contend  that  25% promotion quota of the post of Assistant Excise and Taxation Officers should go to Taxation Inspectors and in this manner the Excise Inspectors could not be promoted. Further, the appellants contend that the date of substantive appointment   should   be  taken  into   consideration   for determination of seniority.  The Himachal Pradesh Excise and Taxation   Department   Inspectorate   Class   III   Service Recruitment,  Promotion  and certain Conditions  of  Service Rules,  1963  are relied on by the appellants.   Rule  12(2) states  that  subject  to the provisions  of  sub-rule  (3), permanent  officers of each grade shall be ranked senior  to persons  who are officiating in that grade.  Rule 9  of  the Punjab  Rules,  1943 on which the appellants  relied  stated that  the seniority of members of the services in so far  as each  class  of post specified in Appendix  ’A’  thereto  is concerned,  be determined by the date of  their  substantive appointment to a post in that class provided that if two  or more members are confirmed in that same class of-post on the same date, their seniority shall be determined by the Excise and Taxation Commissioner whose decision shall be final. 15--L84Sup.CI/75 912 The  contention  of  the  appellants  is  that  under  their conditions  of Service when they were allocated to  Himachal Pradesh  on  the appointed date 1 November, 1966  they  were

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confirmed Taxation Inspectors with effect from 1 April, 1966 in  the  former  State of Punjab.  In  accordance  with  the directions of the Central Government contained in the letter dated  14,  February, 1967 the appellants contend  that  the date  of  substantive appointment, viz., 1  April,  1966  is therefore  to  be  considered  for  seniority  as  well   as promotion.   For  promotion the  appellants  contended  that Class  111-A  Punjab Rules provided three  years  continuous service as Inspector to be sufficient.  Confirmed Inspectors would   be  senior  to  unconfirmed  Inspectors.   In   this background  the appellants contend that the  seniority  list wrongly shows that appellant No. 1 was placed along with the Excise  Inspectors  and  in the  other  seniority  list  all Inspectors  of  Punjab were equated with  Sub-Inspectors  of Himachal  Pradesh.   Further,  it  is  contended  that  Sub- Inspectors  of  Himachal Pradesh who were  unconfirmed  were made senior to the, appellants. On  behalf of the State it was contended that the  employees of  Himachal  Pradesh  could be given the  same  benefit  of Inspectors  by varying the conditions of service which  were to their benefit and the sanction of the Central  Government under  section 82(6) of the, Act would not be  required  for that  purpose.   It  is also said  that  the  conditions  of service  which govern the appellants who were  employees  of the  former  St-ate  of  Punjab were  not  varied  to  their disadvantage.   This  contention is  utterly  unsound.   The seniority list has been prepared by giving the employees  of Himachal Pradesh the benefit of the date ,of upgradation  as 1 April, 1966.  The Government of India sanctioned the  date 1  May,  1969.  The State of Himachal Pradesh  is  not  only setting   at   naught  the  direction  but   is   giving   a retrospective  validation to the date of upgradation.   That is  a matter which changes the conditions of service of  the appellants.  The appellants are deprived of their continuous period  of  service.  The appellants are deprived  of  their quota  of  promotion.  The appellants were  not  heard  with regard  to  equations  of posts  of  Excise  Inspectors  and Taxation’  Inspectors.  The appellants were not  heard  with regard to their seniority list. The   appellants,  therefore,  rightly  contend   that   the conditions   of  service  applicable  to  them  before   the appointed  day  have  been  altered  to  their  disadvantage without  the  previous approval of the  Central  Government. Again,  if  the State of Himachal Pradesh  wants  to  equate Taxation  Inspectors with Excise Inspectors the approval  of the   Central  Government  will  be  required  because   the appellants may represent their case of promotion quota under these Rules. The  High Court correctly held that if the State  Government wanted  to  alter the upgradation of the posts  of  Himachal Pradesh Sub-Inspectors with, effect from 1 April, 1966,  the sanction of the Central Government was to be obtained.   The High Court rightly set aside the executive decision changing the  date  of promotion of Himachal  Pradesh  Sub-Inspectors from 1 May, 1969 to 1 April, 1966 and the seniority lists as well as the four promotions. 913 The  Plants contended that the directions given by the  High Court  with regard to preparation of seniority lists  should be  set aside.  The directions given by the High Court  were these.    The  appellants  should  be,  equated   with   the Inspectors  of Himachal Pradesh and thereby the  High  Court held that all Inspectors of Himachal Pradesh should be taken as Excise, and Taxation Inspectors and their cadre should be taken  as point.  The second direction is that the  date  of

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continuous  appointment in an equated post shall govern  the seniority as provided in the letter dated 14 February,  1967 of  the  Central-Government.  The third  direction  is  that specific approval of the Central Government is ,to be taken, under section 82(6) of the Act if the date of promotion  ,or upgradation  from the post of Sub-Inspectors is fixed  as  1 April,  1966.   The fourth direction is that the  Rules  for promotion  to  the posts of Assistant  Excise  and  Taxation Officers  should  be  prepared  and  the  same:  shall   be, finalised   after  getting  the  approval  of  the   Central Government. The  appellants  main  contention, is that  there  were  two distinct  ,cadres of Inspectors in Himachal  Pradesh  before reorganisation,  viz., one cadre of Taxation Inspectors  and Sub-Inspectors and the other cadre of Excise Inspectors  and Sub-Inspectors.  The respondents on the other hand contended that  there was one cadre in Himachal Pradesh.  It was  also the   contention   of  the  respondents   that   there   was unification’  of  cadres  in  Himachal  Pradesh  before  the reorganisation of the State. If the State of Himachal Pradesh wishes to change the  _date of  upgradation  of  Himachal Pradesh  Sub-Inspectors  to  1 April,  1966  the  State Government  cannot  do  so  without sanction of the Central Government under section-’ 82(6)  of the  Act.   If  the State Government wishes  to  equate  the appellants with the Inspectors of Himachal Pradesh the State of  Himachal Pradesh will have, to follow the provisions  of the  States Reorganisation Act in that behalf.  The date  of continuous appointment of the appellants and the respondents in the equated post will also have to be in compliance  with the provisions of the States Reorganisation Act. All   facts   and  circumstances  affecting   the,   service conditions of Inspectors of both the States will have to  be placed by the State Government before the Central Government for  decision  of the Central Government whether  it  should give approval under section 82(6) of the Act to  upgradation of  Sub  Inspectors of Himachal Pradesh with effect  from  1 April 1966. The  direction  given  by  the High  Court  that  the  State Government  shall obtain approval of the Central  Government under  section  82(6) of the Act in regard to  the  date  of promotion  or upgradation. of SubInspectors is  correct  and upheld.   The other direction given by the High  Court  that the  Rules for promotion to the post of Excise and  Taxation Inspectors shall be finalised after getting the approval  of the Central Government is correct and upheld. 914 For these reasons the appeal of the State is dismissed.  The appeal  of the appellants is accepted in part.  Equation  of the  appellants with the Inspectors of Himachal Pradesh  and the  date of continuous appointment in equated posts can  be only  in  accordance  with  the  provisions  of  the  Punjab Reorganisation  Act.   Parties will pay and bear  their  own costs. N.P.S.                        Appeal dismissed. 915