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PETITIONER: BISHAN CHAND & ORS.

       Vs.

RESPONDENT: SARABJIT SINGH & ORS.

DATE OF JUDGMENT27/08/1974

BENCH: RAY, A.N. (CJ) BENCH: RAY, A.N. (CJ) MATHEW, KUTTYIL KURIEN

CITATION:  1975 AIR   73            1975 SCR  (1) 914  1975 SCC  (3) 178

ACT: Punjab  Co-operative Subordinate Service Rules, 1936,  Rules 5,  6 and 7--Passing of departmental examination  basis  for fixation    of    seniority--Reorganisation    of     Punjab State--Variation  of  condition  of  service,  if  has   the approval of the Central Govt. as required under sec.  115(7) of States Reorganisation Act.

HEADNOTE: The appellants belonged to Pepsi% Service.  On 20th October, 1956  they  held  been promoted from the  position  of  Sub- Inspectors  to  Inspectors.  On 1 Nov, 1956  there  was  the reorganisation of the State of Punjab.  Pepsu became  merged in  Punjab.   The appellants became  integrated  with  other Inspectors working in the State of Punjab.  Under the Punjab Co-operative  Subordinate Service Rules, 1936, seniority  is dependent  on the passing of departmental examination.   All the  respondents who were shown senior to the appellants  in the  gradation list dated 11 March, 1966, had  passed  their departmental examination before the appellants passed  their examination.   The  respondents were all  confirmed  earlier than the appellants.  The appellants passed the departmental examination  after the respondents had done so.   Therefore, the appellants were treated as juniors to the respondents. The appellants contended that the conditions of service have been  varied  to  their disadvantage  without  the  previous approval of the Central Govt. as required under sec.  115(7) of the States Reorganisation Act. Rejecting the appeal, HELD  :  It  follows  from  paragraphs 2  3  and  6  of  the memorandum  of the Central Govt. dated 11 May, 1957 that  as far  as  departmental examination is concerned  the  Central Govt. told the State Governments that they might, if they so desired  change  the  conditions of  service  and  for  this purpose  they  might  assume the previous  approval  of  the Central  Govt. as required by the proviso to sec. 115(7)  of the  States  Reorganisation Act.  This Court has  held  that this  memorandum  of  Central  Govt.  amounted  to  previous approval  within  the meaning of sec. 115(7) of  the  States Reorganisation Act. [917 B-D] N.   Raghavendra  Rao  v. Deputy Commissioner  South  Kanara Mangalore, (1964)7 S.C.R. 549 and Mohammad Shujat Ali & Ors.

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v. Union of India & Ors. [1975] I. C. R. 449 relied on. The   condition   of  service  in  regard  to   passing   of departmental  examination for the purpose of  promotion  is, therefore.  fully clothed with the previous approval of  the Central   Govt.   The  appellants  also  appeared   in   the examination.  They availed of the same method of  promotion. They  have  suffered no prejudice because  they  passed  the departmental examination later than the respondents. [917 F]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1452  of 1973. Appeal by Special Leave from the judgment & Order dated  the 8th  September  1971 of the Punjab & Haryana High  Court  in L.P. A.   No. 689 of 1970. V.   C.  Mahajan, M. R. Agnihotri and Urmila Sirur, for  the appellants; R.   K.  Garg,  S.  C. Agarwal, S. S. Bhatnagar  and  V.  J. Francis, for respondents Nos. 1, 3, 5, 6, 7 & 17. 915 O.P.  Sharma   for R.N. Sachthey, or respondent No. 11 T.V.S.N. Chari,   for respondent (Davinder Bahadur). The Judgment  of the Court was delivered by. RAY, C.J.-This appeal is by special leave from the  judgment dated  8  September’, 1971 of the High Court of  Punjab  and Haryana. The principal  question raised in this appeal is whether the appellants are  wrongly   shown   as   junior   to   the respondents. The  respondents  have  been treated to  be  senior  to  the appellants on the basis of the     Punjab       Co-operative Subordinate  Service Rules, 1936 hereinafter referred to  as the 1936 Rules.  Under the 1936    Rules    seniority     is dependent  on the passing of departmental examination.   The appellants  passed  the departmental examination  after  the respondents  had  done so.  Therefore,  the  appellants  are treated as junior to the respondents. The  appellants belonged to Pepsu Service.  On  20  October, 1956,  the appellants had been removed from the position  of Sub-Inspectors  to Inspectors On 1 November, 1956 there  was the  reorganization  of the State of Punjab.   Pepsu  became merged  in  Punjab.. The appellants became  integrated  with other Inspectors working in the State of Punjab. On  1  March,  1957 the appellants were  reverted  from  the position  of Inspector to Sub-Inspector.  On 11 April,  1957 the  appellants   were  promoted again to  the  position  of Inspector. The appellants contend that the 1936 Rules did not apply  to Pepsu  before the merger, and, therefore, the conditions  of service could not be varied to their disadvantage after  the integration  without  the previous approval of  the  Central Government  as  provided  by section 11 5(7  of  the  States Reorganization  Act.  The appellants also contend that  they have lost one month and eleven days on account of  reversion from  the position of Inspector to Sub-Inspector  between  1 March, 1957 and 11 April, 1957. The  gradation  list was published on 11 March.  1966.   The seniority  list  was prepared on the basis  of  1936  Rules. Rule 5 of the 1936 Rules states that all candidates for  the post  of  Inspectors  and  Sub-Inspectors  of   Co-operative industrial  Societies shall undergo such training and  shall pass such examination as the Registrar may prescribe.   Rule 6  of the 1936 Rules, inter alia, states that the  seniority

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of Inspector candidates recruited from Sub-Inspectors of Co- operative  Industrial  Societies and Sub-Inspectors  of  the Punjab  Co-operative Union will first be determined  by  the date  of  passing the departmental examination.  If  two  or more  candidates  passed the examination on the  same  date, seniority  will  be determined by the length of  service  as Sub-Inspector.   Rule  7 of the 1936 Rules states  that  the seniority of Inspectors in the 4th grade will be  determined by the date 916 of  confirmation.   In  the  third  and  higher  grades   of Inspectors,  seniority  will be determined by  the  date  of confirmation in the respective grades. On   1  November,  1956  the  appellants  as  well  as   the respondents  were all officiating Inspectors.  Some  of  the appellants passed their departmental examination in January, 1959 and some in May, 1961.  Some of the respondents  passed their  departmental  examination in February, 1957  and  the others  in March, 1958.  All the respondents who were  shown senior  to  the appellants in the gradation  list  dated  11 March, 1966 had passed their departmental examination before the appellants passed their examination. The   respondents  were  all  confirmed  earlier  than   the appellants.  The confirmation of the respondents took  place before  1964.   In  the High Court it was  conceded  by  the appellants  that the respondents had been confirmed  earlier than  the  appellants.   The  High  Court  found  that   the seniority  list was prepared on this basis. in the  case  of confirmed  Inspectors  the date of  confirmation  gives  the seniority.  In the case of Inspectors who were not confirmed the  date of passing the departmental examination was  taken to be the basis of seniority.  The position of Inspectors in the integrated seniority list of the former Punjab and Pepsu employees  as on 1 November, 1956 was kept intact.   In  the case  of  promoted  Inspectors selected in  the  same  batch seniority  on  the basis of the seniority position  as  Sub- Inspectors  was fixed.  All the respondents who  were  shown senior   to   the  appellants  passed   their   departmental examination long before the appellants did. The contention of the appellants that conditions of  service have been varied to their disadvantage without the  previous approval of the Central Government is utterly unsound. The   Central  Government  on  11  May,  1957  addressed   a memorandum No. S.O. SRDI-I-ARM-57 to all State  Governments. Paragraph  2 of the memorandum states that the  question  of protection  to be afforded in the matter of various  service conditions  to  personnel  affected  by  reorganisation  was discussed with the State representatives at conferences held with  them.   After  careful  consideration  of  the   views expressed  at these conferences, the Central Government  had decided  that  the  conditions  of  service  in  regard   to substantive  pay  of  permanent  and  temporary   employees, special  pay,  leave  rules,  pension,  provident  fund  and dearness  allowance applicable to personnel affected by  the reorganisation immediately prior to the appointed day should be protected.  But so far as conditions of service in regard to     travelling    allowances,    discipline,     control, classification, appeal, conduct, probation and  departmental promotion  were  concerned it would not  be  appropriate  to provide  any protection in the matter of  these  conditions. That is stated in paragraph 3 of the memorandum.   Paragraph 6 of the memorandum stated that in respect of conditions  of service   as  had  been  specifically  dealt  with  in   the proceeding paragraphs cf the memorandum, it would be open to the State Governments to take action in accordance with  the

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decisions  conveyed  therein  and  so  long  as  the   State Governments acted in conformity with those decisions, they 917 might assume the Central Government approval in terms of the proviso to section 115(7) of the States Reorganisation  Act. In  all  other  cases involving  condition  of  service  not specifically covered in the proceeding paragraphs, it  would be  necessary for the State Government in terms  of  section 115(7)  of the States Reorganisation Act before  any  action was  taken to vary the previous conditions of service of  an employee to his disadvantage. It  therefore  follows  from paragraphs 2, 3 and  6  of  the aforesaid  memorandum that as far as departmental  promotion is   concerned  the  Central  Government  told   the   State Governments that they might, if they so desired, change  the conditions of service and for this purpose they might assume the previous approval of the Central Government as  required by  the proviso to section 115(7) of the States  Reorganisa- tion Act. In N.A. Raghavendra Rao v. Deputy Commissioner South Kanara, Mangalore  (1)  a question arose as to  whether  the  Mysore General  Services (Revenue Subordinate  Branch)  Recruitment Rules,  1959  were made with the previous  approval  of  the Central  Government under the proviso to section  115,  sub- section  (7) of the States Reorganisation Act.  It was  held there that the memorandum of the Central Government dated 11 May,  1957 amounted to previous approval within the  meaning of  section  115(7) of the States Reorganisation  Act.   The Mysore   General  Services  (Revenue   Subordinate   Branch) Recruitment  Rules, 1959 were therefore held to  be  validly made. The decision in  Raghavendra Rao’s (1) case has been  relied on  and applied in the recent decision in writ petition  No. 385 of 1969 and other Writ Petitions : Mohammad Shujat Ali & Ors. v. Union of India & OrS. (2). The   condition   of  service  in  regard  to   passing   of departmental  examination for the purpose of  promotion  is" therefore,  fully clothed with the previous approval of  the Central  Government.   The appellants also appeared  in  the examination.  They availed of the same method of  promotion. They  have  suffered no prejudice because  they  passed  the departmental examination later than the respondents. For these reasons, we are of opinion that there is no  merit in the contention of the appellants.  They have been rightly treated  as junior to the respondents.  That is the  correct position in law as well as in the facts and circumstances of the  case.   In  view  of the fact  that  the  parties  were directed  to  bear their own costs throughout  in  the  High Court  we make a similar order that they will pay  and  bear their own costs in this, appeal. V.M.K.            Appeal dismissed. (1) [1964] 7 S.C.R. 549.      (2) [1975] 1 S.C.R. 449. 918