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PETITIONER: UNION OF INDIA AND ORS.

       Vs.

RESPONDENT: M.   RAVI VARMA AND ORS.  ETC.

DATE OF JUDGMENT04/01/1972

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ SHELAT, J.M. DUA, I.D. MITTER, G.K.

CITATION:  1972 AIR  670            1972 SCR  (2) 992  1972 SCC  (1) 379  CITATOR INFO :  F          1975 SC 483  (15)  RF         1975 SC 538  (1,3,5,7,8, TO 14,16,21, TO 27  D          1975 SC2164  (22)  RF         1977 SC1673  (1)  RF         1986 SC2086  (6,7)  F          1989 SC1071  (5)

ACT: Civil  Service-office Memorandum of Union Ministry  of  Home Affairs  ,dated June 22, 1949 laying down that seniority  of Central  Government  servants  in the same  grade  shall  be governed   by   length  of  service-subs   quaintly   Office Memorandum   dated  December  20,  1959  laying  down   that seniority   to  be  determined  on  the  basis  of   general principles  annexed to Memorandum-Memorandum of 1959 is  not retrospective--Persons  appointed before it are governed  by 1949 Memorandum.

HEADNOTE: In order to provide for the seniority of Central  Government servants displaced from Pakistan the Home Ministry by Office Memorandum dated June 22, 1949 laid down that the  seniority of  all Central Government servants in the same grade  shall be  governed by the length of their service in  that  grade. By  1959  the  object underlying that  memorandum  had  been achieved.  Accordingly by another memorandum dated  December 20,  1959  the  Home Ministry decided  that  in  respect  of persons appointed after that date the general rules  annexed to  the  memorandum  shall apply, one of  those  being  that seniority shall be governed by the date of confirmation  and not length of service. In  1957  the  Central Board of Revenue  issued  a  circular whereby  seniority  in  the  offices  under  it  was  to  be determined on the basis of date of confirmation.  In 1962  a revised seniority list of employees under the Central  Board of  Revenue was prepared on the basis of date  of  confirma- tion.   As a result respondents G and R who were  Inspectors of  Central Excise lost several positions in the  seniority. These  respondents had been appointed in 1947 and  confirmed in  1956.   They filed writ petitions in the High  Court  of

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Mysore.   The  High Court held that the memorandum  of  1949 applied to their case and their senority must be decided  on the  basis  of  length  of  service  and  not  the  date  of confirmation. S  and  T were employees under the  Directorate  General  of Health  Services,  Government  of India.   They  had  joined service  in  1950 and 1951 respectively.  In  the  seniority list,  which  had been prepared on the basis  of  length  of service  in accordance with the Office Memorandum  ,of  1949 their  positions  were 32 and 34.    Subsquently  Memorandum dated June 19 1963 was issued by the Directorate General  of Health Services in which it was stated that Scheduled Castes and  Scheduled  Tribes  candidates  who  were  confirmed  in reserved vacancies would rank senior to temporary, including quasi-permanent persons respective of their positions in the seniority  list.   As a result of  the,application  of  this principle S and T lost seniority by several positions.  They filed  writ  Petitions  in  the High  Court  of  Punjab  and Haryana.  The Single Judge dismissed their petitions but the Division   Bench  allowed  them  on  the  ground  that   the Memorandum dated June 19, 1963 issued by the Directorate  of Health  Services  was  not  in  consonance  with  the   Home Ministry’s Memoranda 1949 and 1959. Against the judgments of the High Courts the Union of  India and others appealed to this Court. Dismissing the appeals, 993   HELD: (1) The office Memorandum dated December 22, 1959 expressly  made  it  clear  that  the  general    principles embodied   in  the  annexure  thereto  were  not   to   have retrospective effect.  In order to put the matter beyond any pale  of controversy, it was mentioned that  "hereafter  the seniority  of all persons appointed in the  various  Central Services.  after  the date of these instructions  should  be determined in accordance with the General principles annexed hereto".  It was therefore, manifest. that except in certain cases with which the present appeals were not concerned laid down in the Annexure thereto could not apply to persons  ap- sions  laid down in the Annexure thereto could not apply  to persons appointed to the various central services before the date of that Memorandum. [1000 6] There  was  thus  no escape from  the  conclusion  that  the seniority  of G and respondents who were appointed prior  to December  22, 1959 would have to be determined on the  basis of  their  length of service in accordance with  the  Office Memorandum dated June 22, 1949 and not on the. basis of date of  their confirmation.  This position was confirmed by  the Central Board of Revenue in its letter dated August 27, 1971 addressed,  to  all Collectors of Central Excise.  [1002  D; 1001 E] Mervyn  Coutindo  & Ors. v. Collector of Customs,  Bombay  & Ors.,. [1966] 3 S.C.R. 600, referred to. (ii) It was no doubt true that a direction was given in  the Memoran-and  R  respondents  who  were  appointed  prior  to December  22,  1959  would and  Scheduled  Tribe  candidates confirmed  in reserved vacancies should be ranked senior  to temporary, including quasi-permanent persons irrespective of their position in the seniority list but such direction went beyond  the  rule  of  seniority  contained  in  the  office Memorandum dated.  December 22, 1959 issued by the  Ministry of Home Affairs in respect of employees appointed before the date.  It was not disputed that according to the  Government of   India  allocation  of  Business  Rules,  1961   general questions relating to recruitment promotion and seniority in Central’  services had to be dealt with by the  Ministry  of

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Home Affairs.  As S and.  T respondents were appointed prior to  December  22, 1959 their seniority was governed  by  the rule  of length of service as contained in the  Annexure  to the Memorandum dated December 22, 1959. [1003 E-H]

JUDGMENT: CIVIL  APPELLATE JURISDICTION: Civil Appeals Nos.  1845  and 1846 of 1968. Appeals by special leave from the judgment and order dated January  10,  1968 and October 20, 1967 of the  Mysore  High Court in Writ PetitiOns Nos. 1519 of 1067 and 1216 of  1965- respectively. Jagdish Swarup, Solicitor-General of India and S. P.  Nayar, for the appellants (in all the appeals). S.   S.  Javali  and M. Veerappa, for respondent No.  1  (in C.As. Nos. 184-1 and 1946 of 1968 ). S.   L. Bhatia for respondents Nos.  1 and 2 (in C.A. No. 50 of 1969. 994 S.   K.  Mehta,  K.  L. Mehta and K. R.  Nagaraja,  for  the Intervener (in C.A. No. 1845 of 1968). The Judgment of the Court was delivered by Khanna, J. Whether the criterion to determine the  seniority of  R avi  Varma and Ganapathi Kini  respondents  should  be length  of service in accordance with the Office  Memorandum dated June 22, 1949 issued by the Ministry of Home  Affairs, as claimed by the said respondents, or whether it should  be the  date of confirmation, as claimed by the appellants,  is the main question which arises for decision in civil appeals Nos.  1845  and 1846 of 1968 which have been  filed  by  the Union  of India and two others by special leave against  the judgment of Mysore High Court.  Similar question arises  in respect  of  the seniority of Suresh Kumar  and  Tara  Chand Jain,  respondents in civil appeal No. 50 of 1969 which  has been  filed  by  the  Union of India and  two  others  on  a ,certificate  granted by the Punjab and Haryana  High  Court against  the  judgment of that Court  reversing  in  Letters Patent appeal the ,decision of the single judge and  issuing a writ in favour of those respondents.  The High Court  held in  all  the  cases  that the  seniority  of  the  concerned respondents should be determined on the basis of the  length of  service in accordance with the above  ,mentioned  Office Memorandum. Before  giving  the facts of the three cases,  it  would  be pertinent  to  refer to two Office Memoranda issued  by  the Ministry  of  Home Affairs.  One of the memoranda  is  dated June 22, 1949.  It was mentioned in this memorandum that the Government of India had under consideration the question  of the fixation of seniority of ;displaced government  servants and temporary employees in the various grades.  Employees of the Central Government who were displaced from their offices in Pakistan, according to the memorandum, had been  absorbed in  offices  under the control of  the  same  administrative ministry  or  on nomination by the Transfer  Bureau  of  the Ministry  of  Home  Affairs in  other  offices.   All  those persons  had been appointed, with a few exceptions, on  tem- porary  basis.   The Ministry of ’Home  Affairs  accordingly conveyed the following decision :               "It has now been decided in consultation  with               the Federal Public Service Commission that the               question  of  seniority in each  grade  should               also  be  examined  in the  same  context  and               specific  rules  suitable  for  each   service

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             prescribed in framing those instructions.  The               question  of  seniority of Assistants  in  the               Secretariat   was   recently   examined   very               carefully   in  consultation  with   all   the               Ministries and Federal Public Service Commis-               995               sion    and   the   decisions   reached    are               incorporated   in para 8 of the  ’Instructions               for  the initial constitution of the grade  of               Assistants’  an extract of which is  attached.               It  has  been decided that  this  rule  should               generally be taken as the model in traming the               rules  of seniority for other services and  in               respect of persons employed in any  particular               grade seniority should, as a general rule,  be               determined  on  the  basis of  the  length  of               service in that Grade irrespective of  whether               the latter was under the Central or Provincial               Government of India or Pakistan.  It has  been               found  difficult  to  work  on  the  basis  of               ’comparable’ posts or grades and it has there-               fore   been  decided  that  ’Service   in   an               equivalent   Grade’,  should,   generally   be               defined  as  service on a rate of  pay  higher               than  the  minimum of the time  scale  of  the               grade  concerned.   The seniority  of  persons appoi nted  on  permanent  or  quasi-permanent               basis  before  the 1st January,  1944  should,               however not be disturbed." Direction  was  accordingly issued by the Ministry  of  Home Affairs that the principles given in the Memorandum be borne in mind in determining the seniority of ’Government servants of  various  categories  employed  under  the  Ministry   of Finance,   etc.’  On  December  22,  1959   another   Office Memorandum was issued by the Ministry of Home Affairs on the subject of the general principles for determining  seniority of  various  categories  of  persons  employed  in   Central services.  Material part of this memorandum was as under:               "The instructions contained in this Ministry’s               Office  Memorandum No. 30/44/48-Apptts,  dated               the  22nd June, 1949, were issued in order  to               safeguard    the   interests   of    displaced               Government  servants appointed to the  Central               Services  after  partition.   As  it  was  not               possible  to  regulate the seniority  of  only               displaced  Government servants by giving  them               credit for previous service, the  instructions               were  made  applicable to  all  categories  of               persons  appointed to Central  Services.   The               principles  contained in the 22nd June,  1949,               orders were extended to-               (i)   ex-Government    servants    of    Burma               appointed to Central Services; and               (ii)  the employees of former part ’B’  States               taken  over  to  the Centre  as  a  result  of               Federal Financial_ Integration.               996               The instructions contained in this  Ministry’s               Office  Memorandum No. 32/10/49-CS  dated  the               31st  March-, 1950 and No. 32/49-CS(C),  dated               the  20.h September, 1952  similarly  regulate               the  seniority of candidates with war  service               appointed to the Central Services.               2.    The question has been raised whether  it               is  necessary  to  continue to  apply  the  in

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             structions  contained in the-Office  Memoranda               cited  above.  Displaced  Government  servants               have by and large been absorbed in the various               Central Services and their seniority has  been               fixed  with reference to the previous  service               rend--red  by them.  Similarly, the  seniority               of ex-employees of the Government of Burma and               of  Part ’B’ States as we I as  of  candidates               with  war service has already been  determined               in  accordance  with  the  instructions  cited               above.  As the specific objects underlying the               instruction   is   cited above   have   been               achieved,  there  is no longer any  reason  to               apply those instructions in preference to  the               normal   principles   for   determination   of               seniority.  It has, therefore, been decided in               consultation  with  the Union  Public  Se-vice               Commission,  that hereafter the  seniority  of               all  persons appointed to the various  Central               Services after the date of these  instructions               should  be determined in accordance  with  the               General principles annexed hereto.               3.    The   instructions  contained   in   the               various  office memoranda cited in paragrah  I               above  are hereby cancelled, except in  regard               to  determination  of  seniority  of   persons               appointed  to  the  various  Central  Services               prior  to the date of this Office  Memorandum.               The revised General principles embodied in the               Annexure  will  not apply  with  retrospective               effect,  but will come into force with  effect               from  the  date  of issue  of  these  ’orders,               unless  a  different date in  respect  of  any               particulate  service/ grade from  which  these               revised  principles  are  to  be  adopted  for               purposes of determining seniority has  already               been  or  is  hereafter  agreed  to  by   this               Ministry.’,               Relevant parts of paragraphs 2, 3 and 4 of the               Annexure to this Memorandum were as under :               "2  Subject to the Provision of para 3  below,               persons   appointed   in  a   substantive   or               officiating  capacity to a grade prior to  the               issue of these general principles shall retain               the  relative  seniority already  assigned  to               them  or  such seniority as may  hereafter  be               assigned  to  them under the  existing  orders               applicable to their cases               997               and  shall en-bloc be senior to all others  in               that grade.               3.    Subject  to  the provisions  of  para  4               below, permanent officers of each grade  shall               be   ranked   senior  to   persons   who   are               officiating in that grade.               4. Direct Recruits :               Notwithstanding  the  provisions  of  para   3               above,  the relative seniority of  all  direct               recruits  shall be determined by the order  of               merit  in  which they are  selected  for  such               appointment,  on  the  recomendations  of  the               U.P.S.C. or other selecting authority, persons               appointed as a result of an earlier  selection               being senior to those appointed as a result of               a subsequent selection.

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Ravi  Varma,  respondent No. 1 in civil appeal No.  1845  of 1968.  was appointed as an Inspector in the  Central  Excise Collectors in Madras on 27-5-47 and was confirmed on 7-4-56. Ganapathi  Kini respondent No. 1 in civil appeal  No.  1846, was  appointed  as  an  inspector  in  the  Central   Excise Collectorate  in  Madras  on 28-5-47.  In view  of  the  war service rendered by Ganapathi Kini, his service for purposes of  seniority was computed with effect from 10-10-46 and  he was  confirmed  on 7-4-56.  Ganapathi Kini and  Ravi  Varma were shown at serial Nos. 115 and 141 in accordance with the length  of service in seniority list of inspectors  prepared in  1959.   Subsequently on the directions  of  the  Central Board of Revenue contained in letter dated October 19, 1962, a  revised seniority list was prepared in 1963 by  computing seniority  from the date, of conifirmation.  In the  revised list  Ganapathi  Kini and Ravi Varma were shown  at  serial, Nos.  149 and 150, junior to persons to whom they  had  been shown senior in the earlier seniority list.  Ganapathi  Kini and  Ravi Varma thereupon filed petitions under article  226 of  the  Constitution  of India  praying  for  quashing  the revised  seniority list prepared in 1963.  The  main  ground taken in the writ petitions was that the seniority should be determined according to length of service in terms of Office Memorandum  dated  June  22, 1949 of the  Ministry  of  Home Affairs.   Impleaded  in the writ petitions  as  respondents were  the Union of India, the Central Board of  Revenue  and the Collector of Central Excise as also those inspectors  of Central  Excise  who,  according to  the  petitioners,  were junior  to them but who on account of being shown senior  to the  petitioners  in the revised seniority  list,  had  been appointed as Senior Grade Inspectors of Central Excise. The  above  mentioned writ petitions were  resisted  by  the appellants.   The  learned judges of the Mysore  High  Court referred  to the memoranda dated June 22, 1949 and  December 22, 1959 -L736SupCI/72 998 and  held that the altered rule embodied in  the  Memorandum dated  December 22, 1959 for the determination of  seniority would  be inapplicable to persons appointed before June  22, 1949  like Ganapathi Kini.  Argument was advanced on  behalf of the appellants that on July 3, 1957 the Central Board  of Revenue  had  again adopted the rule that the  date  of  the confirmation  should  form the basis  for  determination  of seniority.   This  argument  did not find  favour  with  the learned judges,and it was observed               "But what is however clear is that in the case               of  a  person  like  the  petitioner  who  was               appointed  before June 22, 1949 the rule  made               by  the Ministry of Home Affairs on that  date               was   what  constituted  the  basis  for   the               determination  of seniority and not the  rule               which  was  revived by the  Central  Board  of               Revenue on July 3, 1957." Direction  was  accordingly  issued  that  Ganapathi  Kini’s seniority  should be determined on on basis of  the  formula contained  in the Office Memorandum dated June 22, 1949  and the revised seniority list be rectified accordingly. In the petition filed Ravi Varma the High Court made a short order  when,  after-’referring the decision in the  case  of Ganapathi Kini, the learned judges granted similar relief to Ravi Varma. Suresh  Kumar,  respondent No. 1 and Tara Chand  Jain,  res- pondent No’ 2 in civil appeal No. 50 of 1969 were  appointed as Lower Division Clerks in the Medical Stores Depot, Karnal

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under the Directorate General of High Services on October 9, 1950  and November 26 1951 respectively.  Both of them  were con  firmed on March 31, 1960.  In the Seniority list  which was Prepared in accordance with Office Memorandum dated June 22, 1949 Suresh Kumar and Tara-Chand Jain, respondents, were shown  at  serial Nos. 32 and 34 in  accordance  with  their length  of Service.  Subsequently Memorandum dated June  19, 1963  Was  received from the Directorate General  of  Health Services  in which there was a reference to the Ministry  of Home Affairs office Memorandum date     December  22,  1959. It was stated in the Memorandum from the Directorate General of  Health  Services that scheduled  castes’  and  scheduled tribes  candidates who were confirmed in reserved  vacancies would  rank senior to temporary,  including  quasi-permanent persons  irrespective  of their position  in  the  seniority list.  A revised seniority list was thereafter prepared  and a  number  of  scheduled  castes  candidates  who  had  been recruited  later but had been confirmed earlier than  Suresh Kumar  and Tara Chand Jain were shown senior.  Suresh  Kumar and 999 Tara Chand Jain were thus shown at serial Nos. 40 and 42  in the revised seniority list Suresh Kumar and Tara Chand  Jain thereafter filed petition tinder article 226 and 227 of  the Constitution   of  India  for  quashing   the   instructions contained  in the Memorandum dated June 19, 1963  issued  by the  Directorate General of Health Services is well its  the revised  seniority  list and  other  consequential  reliefs. Impleaded  is respondents in the petition were the Union  or India,  the Director General of Health Services, the  Deputy Assistant Director General Medical Stores, as well astoother schedule castes employees of the Medical Stores Depot Karnal  who had been shown senior to the petitioners in  the revised seniority list. The above petitions were resisted by the appellants and were dismissed  by  the learned single judge. On  Letters  Patent appeal the judgment of the single judge was reversed and  it was held thatSuresh Kumar and Tara Chand Jain having  been appointed  prior to December 22, 1959 were Governed  by  the rule  of seniority contained in the Office Memorandum  dated June 22, 1949 issued by  the  Ministry of Home  Affairs. This position, in the opinionof the learned judges, was not affected by the subsequent OfficeMemorandum issued by  the Ministry of Home Affairs. So far asthe Memorandum dated June  19, 1963 issued by the Directorate General  of  Health Services was concerned, it was found to be not in consonance with the Office Memoranda issued by the Ministry of    Home Affairs on June 22, 1949 and December 22, 1959. Assuch the  Memorandum issued by the Directorate General of  Health Services, according to the learned judges, could not  affect the  seniority of Suresh Kumar and Tara Chalid Jain. In  the result the revised seniority list was held to be invalid and theUnion  of India and two other appellants were  directed to  prepare a revised seniority list in accordance with  the original seniority of Suresh Kumar and Tara Chand Jain. The  learned Solicitor General on behalf of  the  appellants has at the outset referred to Memoranda dated June 22,  1949 and December 22, 1959 issued by the Ministry of Home Affairs and has argued that after the issue of the latter Memorandum the seniority of all Central Government employees should be determined by the date of their confirmation and not oil the basis  of  the length of  service. let this  connection,  we find,  that  the of a large number of  Government  employees After  the partition of the country from areas  now  forming part  of  Pakisthan  resulted in  a  situation  wherein  the

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Government had to review the Jules relating to seniority, As most  of  those  displaced  Government  servants  had   been employed  on temporary, basis and as it was felt  that  they should be given some weigh@age in the matter of seniority on compassionate  grounds,  the  rule  was  evolved  that   the seniority 1000 should  be determined on the basis of the length of  service in equivalent grades.  The seniority of persons appointed on permanent  basis or quasi-permanent basis before January  1, 1944 was, however, left undisturbed.  Further, as it was not possible  to  regulate  the  seniority  of  only   displaced Government  servants  by  giving them  credit  for  previous service,  the  instructions  were  made  applicable  to  all categories of persons appointed to Central services.  Office Memorandum dated June 22, 1949 was consequently issued.  The above  principles  were also extended to other  category  of Government employees, including those with war service. The matter was reviewed thereafter in 1959.  The  Government then  found  that displaced Government servants had  by  and large  been  absorbed in the various  Central  services  and their  seniority  had  been  fixed  with  reference  to  the previous service rendered by them.  Same was found to be the position of other Government servants who had been given the benefit of the principles contained in Memorandum dated June 22,.1949. As the objects underlying the instructions of June 22,  1949 had been achieved and it was no longer  considered necessary  to apply those instructions in preference to  the normal  principle  for determination of  seniority,  it  was decided  that the seniority of Central Government  employees would  henceforth  be  determined  in  accordance  with  the general  principles  contained  in Annexure  to  the  Office Memorandum  issued  by  the  Ministry  of  Home  Affairs  on December  22,  1959.   One ,of  those  principles  was  that permanent officiating of each grade would I ranked senior to persons who were, officiating in that grade.  The effect  of that,  as  submitted by the learned Solicitor  General,  was that  the  seniority  was to be determined by  the  date  of confirmation  and not on the basis of length of  service  as was  the rule contained in the Office Memorandum dated  June 22, 1949. The  Office  Memorandum dated December  22,  1959,  however, expressly made it clear that the general principles embodied in  the  Annexure thereto were not  to  have  retrospective, effect.   In  ,order to put the matter beyond  any  Pale  of controversy, it was mentioned that ’hereafter the  seniority of  all  persons appointed to the various  Central  Services after the date of these instructions should be determined in accor dance with the General principles annexed hereto’.  It is,  therefore, manifest that except in certain  cases  with which  we  are not concerned, the  Office  Memorandum  dated December  22,  1959  and the provisions  laid  down  in  the Annexure thereto could not apply to persons appointed to the various Central services before the date of that Memorandum. It  may also be mentioned that while dealing with the  above Memorandum, this Court in the case of Mervyn Coutindo & Ors. 1001 v.   Collector  of Customs, Bombay & Ors. (1) observed  that these principles were not to apply retrospectively but  were given  effect  to form the date of their issue,  subject  to certain reservations with which we are not concerned. It  has next been argued by the learned  Solicitor  General that  whatever  might be the positioned in  respect  of  the employees  in other Central services, so far as the  clerks, supervisors  and  inspectors  under  the  Central  Board  of

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Revenue  were  concerned,  a decision  was  taken  that  for purposes  of promotion, the permanent employees should  have precedence before nonpermanent employees.  Our attention  in this  connection has been invited to letter dated March  15, 1958 sent by the Central Board of Revenue to all  Collectors of Central Excise.  In this letter there was a reference  to an  earlier letter dated July 3, 1957 from the Board and  it was mentioned that the instructions contained in the earlier letter that for purposes of promotion from ministerial grade to  inspectors  grade,  permanent  clerks  would  first   be considered   before  considering  persons  who   were   non- permanent,  should be followed in respect of  promotions  to other  grades  also.   The  Solicitor  General   accordingly contends  that  the direction contained  in  the  Memorandum dated December 22, 1959 that it could not apply to employees appointed  before that date would not hold good in the  case of clerks, supervisors and inspectors functioning under  the Central  Board  of  Revenue.  It is,  in  our  opinion,  not necessary  to go into this aspect of the matter  because  we find  that the Central Board of Revenue as per letter  dated August  27,  1971  addressed to all  Collectors  of  Central Excise, gave fresh instructions regarding the principles  of seniority.   In  this letter there was a reference  to  the Office  Memorandum  dated December 22, 1959  issued  by  the Ministry of Home Affairs and it was stated :               "In supersession of all previous orders on the               subject,  it has now been decided  that-in  so               far  as the nongazetted staff in  the  Central               Excise, Customs and Narcotics Departments  and               other  subordinate offices are  conceded,  the               seniority  of  persons  appointed  to  various               posts  and  services after  receipt  of  these               orders should be regulated in accordance  with               the Ministry of Home Affairs O.Ms. referred to               above." It  would  follow  from the above that so far  as  the  non- gazetted  staff  1  in  the  Central  Excise,  Customs   and Narcotics  Departments and other subordinate offices of  the Central Board of Revenue are (1)  [1966]3 S.C.R. 600. 1002 concerned,  the  question  of seniority  would  have  to  be decided  in  accordance  with the  Office  Memorandum  dated 19-10-1959.   As the said Office Memorandum has,  except  in certain  cases with which we are not concerned, applied  the rule of seniority contained in the Annexure thereto only  to employees appointed after the date of that Memorandum, there is  no  escape  from the conclusion that  the  seniority  of Ganapathi  Kini  and  Ravi  Varma,  respondents,  who   were appointed  prior  to  December 22, 1959, would  have  to  be determined  on  the  basis of their  length  of  service  in accordance  with Office Memorandum dated Julie 22, 1949  and not on the basis of the date of their confirmation. In civil appeal No. 50 of 1969 the learned Solicitor General has  referred  to Office Memoranda dated January  28,  1952, April 20, 1961 and March 27, 1963 issued by the Ministry  of Home Affairs to show a departure from the rule of  seniority for the benefit of members of scheduled castes and scheduled tribes.   Office  Memorandum dated January  28,  1952  makes provision  for  communal  representation  in  services   for candidates to scheduled castes and scheduled tribes as  also the  Anglo Indian community.  The Memorandum gives  a  model roster  which  should be applied in filling  the  vacancies. Perusal  of  the Memorandum shows that it  relates  only  to recruitment  and  has  nothing  to  do  with  the  rule   of

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seniority. Office Memorandum dated April 20, 1961 deals with the  ques- tion  of seniority of direct recruits who were confirmed  in an  order  different  from  the  original  order  of  merit. According  to  the  Memorandum,  it  often  happens  that  a scheduled  caste  or scheduled tribe candidate  occupying  a lower position in the merit list is appointed permanently to a reserved vacancy, while candidates above him in the  merit list are not appointed at that time.  If such candidates are appointed in the following year, they are note entitled to a higher  seniority  on the ground that in the  previous  year they  had obtained a higher position in the merit list.   It is plain that the above Office Memorandum did not deal  with the question of seniority on the basis of length of  service as  contained in Office Memorandum dated June 22,  1949  but with the question a, to what would be the effect if a direct recruit scheduled caste or scheduled tribe candidate  though occupying  a lower position in the merit list, is  confirmed earlier  in a reserved vacancy.  We are in the present  case not  concerned with any merit list nor with any question  of seniority based on such a list.  As such, Office  Memorandum dated April 20, 1961 is also of not any material help to the appellants.   It  may  be stated that the  counsel  for  the appellants  in  the  High  Court  conceded  that  the  above Memorandum   had   no  direct  relevance  in   the   present controversy. 1003 The third Office Memorandum dated March 27, 1963 referred to by  the learned solicitor General deals with the subject  of maintenance of roster for giving effect to the  reservations provided  for  scheduled  castes and  scheduled  tribes’  in Central Government services.  This Memorandum has a  bearing only  on  the  question  of  recruitment  and  provides   no guidelines  for determining seniority.  We, thus, find  that none  of  the  three Office Memoranda  relied  upon  by  the Solicitor  General  is  of any material  assistance  to  the appellants. We  may  now advert to the Memorandum dated  June  19,  1963 issued  by the Directorate General of Health Services.   As? mentioned  earlier,  it  was  after  the  receipt  of   this Memorandum that the seniority list of class III employees of the Government Medical Stores Depot, Karnal was revised  and the  seniority  was determined on the basis of the  date  of confirmation and not on the basis of length of service.  The above  Memorandum  from the Directorate  General  of  Health Services  expressly  refers to the Office  Memorandum  dated December 22, 1959 issued by the Ministry of Home Affairs and seeks  implementation of that.  It is no doubt true  that  a direction  was  given in the Memorandum of  the  Directorate General   of  Health  Services  that  scheduled  caste   and scheduled  tribe candidates confirmed in reserved  vacancies should  be  ranked  senior to  temporary,  including  quasi- permanent  persons,  irrespective of their position  in  the seniority list, but such a direction went beyond the rule of seniority contained in the, Office Memorandum dated December 22,  1959 issued by the Ministry of Home Affairs in  respect of  employees  appointed  before that  date.   As  mentioned earlier  Office Memorandum dated December 22, 1959  did  not disturb  the, seniority of Central Government employees  who had  been  appointed prior to the date of  that  Memorandum, except in certain cases with which we are not concerned.  It is  not disputed that according to the Government  of  India Allocation   of  Business  Rules,  1961  general   questions relating to recruitment, promotion and seniority in  Central services  like the one with Which we are concerned, have  to

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be  dealt with by the Ministry of Home Affiars.   As  Suresh Kumar and Tara Chand Jain, respondents, were appointed prior to  December  22, 1959 their seniority was governed  by  the rule of length of service as contained in Office Memorandum 1004 dated  June 22, 1949 and not by the rule based upon date  of confirmation as contained in the Annexure to the  Memorandum dated December 22, 1959. Reference  was made by the learned Solicitor General to  the case  of Roshan Lal Tandon v. Union of India(1)  wherein  it has been laid down that the service rules may be framed  and altered  unilaterly  by  the Government.   No  occasion  for invoking  the above dictum arises in this case  because  the learned  counsel  for the contesting  respondents  have  not questioned  the right of the Government to frame and alter unilaterly the service rules. In the result, all the three appeals fail, and are dismissed with costs. One hearing fee. G.C.                         Appeals dismissed. (1) [1968] 1 S.C.R. 185. 1005