02 May 1996
Supreme Court


Case number: Appeal Civil 1894 of 1991






DATE OF JUDGMENT:       02/05/1996


CITATION:  JT 1996 (5)   393        1996 SCALE  (4)259



JUDGMENT:                       J U D G M E N T Punchhi. J.      This is  an angular service dispute between Dr. Ram Raj Ram (hereafter  referred to as to "Dr. Ram") on one side and Dr.  Radheyshyam  Sharma  (hereafter  referred  to  as  "Dr. Sharma") on  the other. Civil Writ Jurisdiction Case No.6230 of 1989 preferred by Dr. Sharma was allowed by a Division Bench of  the Patna High Court on December 19, 1990 granting to him  the sought  for  reliefs  which  affected  Dr.  Ram. Similarly,  on   the  same  day,  the  same  Division  Bench dismissed Civil  Writ  Jurisdiction  Case  No.6620  of  1989 preferred by  Dr. Ram  denying to him the mandamus sought on whatever achieved before-hand. Civil Appeal No. 1894 of 1991 has arisen  from the former case and Civil Appeal No.1895 of 1991 from  the latter;  Dr. Ram  being the  common appellant herein; Dr. Sharma being a respondent common to both. Thus disposal of these appeals by a common judgment.      On April  11, 1935,  the Government of Bihar and Orissa made Rules  known as the Bihar and Orissa Veterinary Service Class-I,  to   regulate  the  conditions  of  service,  pay, allowances and  pension of  members of the Service. A member of service was to mean a person appointed in substantive or officiating capacity  under the provisions of the rules to a post in  the cadre of service, but not including a member of the Indian Veterinary Service. Rule 16 thereof provided that the post of the Director of Veterinary Services shall remain outside the  cadre of  service but subject to the provisions of Rule  17, it may be filled at the discretion of the local government by  a member  of the Service. Rule 17 (with which we are  not concerned  presently) provides  that a member of the Indian  Veterinary Service  borne on  the cadre of Bihar and Orissa  shall normally  be appointed to the post  of the Director, but if none is available, assistance of the Government of  India  was  to  be  sought  with  a  view  to procuring a suitable selection from among the members of the



Indian Veterinary  Service in  other  provinces  before  any other person was to be appointed to the post Thus in a given situation, the  post  of  the  Director  of  the  Veterinary Services could  be filled  by a  member of  the Service; the post all  the  same  remaining  outside  the  cadre  of  the Service. That  was the  mandate of the Rule. Recognizing the relevance of seniority in the context, Rule 14 provided that seniority in  the service shall be determined by the date of the  officer’s   substantive  appointment   to  the  service irrespective of the pay drawn by him.      The Rules  above mentioned acquired, if not recognized, statutory character  by exercise  of the  legislative  power vested in the Governor by Government Notification reproduced hereafter:            APPOINTMENT DEPARTMENT       APPOINTMENT File No.3LS-27 of 1960      Rules  under  Article  309  of  the      Constitution of India, 1949.      Notification    No.3L-27/50-3555-A,      dated the  15th April, 1959, by the      Government  of  Bihar,  Appointment      Deptt.           In  exercise   of  the  powers      conferred by the proviso to Article      309 of  the Constitution  of India,      the Governor  of   Bihar is pleased      to   make   the   following   rule,      namely:-           All  enactments,   rules   and      orders,  whether   made  under  any      enactment   or   otherwise,   which      regulated   the   recruitment   and      conditions of  service  of  persons      appointed  to  public  service  and      posts  in   connection   with   the      affairs which  are now  the affairs      of the  State of  Bihar  and  which      were in  force  immediately  before      the 26th January, 1950, shall until      provision is  made by  or under  an      act of  the  State  Legislature  to      regulate   such   recruitment   and      conditions of  service, be in force      as if  they had been made by virtue      of the  powers made  under the said      proviso.                 By order of the Governor                         of Bihar                           sd/                       L.P. Singh,                  Chief Secretary, Bihar"      Dr. Sharma  was appointed in the Bihar Animal Husbandry Service Class-I  (hereafter referred to as the "Service") by a Notification  dated 6-7-1966  issued by  the Department of Animal Husbandry.  On the  other hand,  Dr. Ram, in the year 1972, was  appointed in  a  Class-III  post  in  the  Animal Husbandry  Service.  On  7-6-1975,  gradation  list  of  the officers in  the Service  was notified  in which the name of Dr. Sharma  figured at  serial no.37. Since on that date Dr. Ram was  working in  Animal Husbandry Service Class-III, his name could  not and  did not  figure in  the said  gradation list. Dr. Ram was successful in obtaining in the year 1976 a reserved post in the Bihar Animal Husbandry Class-II Service on the recommendation of the Bihar Public Service Commission (hereafter referred to as the "Commission"). On June 1,1977,



an advertisement  was published  by the  Commission inviting applications from  eligible scheduled  caste candidates  for appointment against  the temporary  post of Special Officer, Intensive Cattle  Development Block  in  the  pay  scale  of Rs.1060-1580 in  the Bihar  Animal Husbandry Service Class-I (Special) (hereafter  referred to as the "Special Service"). Dr. Ram  competed and  emerged successful  in obtaining that post as a direct appointee on 8-1-19?8, which post he joined on 11-1-1978 .      Before-hand the  Government of  Bihar had constituted a Committee of  senior officers  with a  view  to  assess  the problem of stagnation and for evolving methods to remove the same and  affording opportunity  for promotion.  The Finance Department of  Government of  Bihar, taking into account the recommendations of  the aforesaid  Committee, published  the decisions  of   the  State  Government  on  April  11,  1977 relatable to  many Services,  to pave the path of promotion. In so  far as  Bihar Animal Husbandry Service was concerned, it was  decided that out of the sanctioned strength of cadre posts in  the Service,  promotional posts  shall be  (i) 15% posts in  the pay  scale of  Rs.620-1415; (ii) 3% in the pay scale of  Rs.1060-1580; and  (iii) 2% posts in the pay scale of  Rs.1340-1870   including  the   post  of  Director.  The Government  decision   further  was  to  make  the  decision effective in the Service from January 1, 1977, i.e. about 3- 1/2 months  prior to  the announcement. Since numerical have been supplied by us to the promotional posts, we may leave a mark here  to say  that Dr.  Ram’s special  post having  pay scale of  Rs.1060-1580  was  comparable,  if  at  all,  with classification (ii) posts carrying the same pay scale.      Since  Dr.   Sharma  was  continuing  in  Bihar  Animal Husbandry Service  Class-I  since  the  year  1966,  he  was recorded as  promoted on  21-11-1985  for  senior  selection grade (classification iii) in the pay scale of Rs. 1575-2300 (as  enhanced)   with  effect   from  1-1-1977,   with   the concurrence of the Bihar Public Service Commission. Later by another Notification of 3-12-1987, the date of promotion was changed from  1-1-1977 to 1-2-1983. Yet another Notification was issued  on 8-1-1988  changing the date of promotion from 1-2-1983  to   1-4-1981.  These  changes  had  ramifications because in  the meantime  service prospects  of Dr. Ram were parallely being  nurtured and  fostered in  the corridors of the bureaucracy.      Dr. Ram,  as said  before, was  appointed  on  9-1-1978 against the  post advertised  described as  in  the  Special Service when  neither any  service  of  the  name  or  cadre existed at  the time,  or any  time thereafter. According to Dr. Ram this post was created which had a high scale of pay, i.e., of  Rs.1060-1580 (classification ii), its effect being to create  an intermediate stage between Class-I officers of the regular  Service on one side and that of the Director on the other. The disparity in pay of Class I being Rs.620-1415 (for classification  i), and  for the  special  class  being Rs.1060-1580, was brought to focus to assert his qualitative difference and  hence superiority/seniority.  Since Dr.  Ram was appointed  on 9-1-1978  in the  Special Service  and Dr. Sharma had  been brought  in the selection grade/promotional post in  the regular Service with effect from 1-1-1977 which date was  later changed  to dates beyond 1978, it is in this arena that  the bureaucracy  of the State played an activist role by  first ordering that the Special Service be known as the basic  cadre in  which shall amalgamate the Service, and secondly in  this manner  when Dr. Ram was appointed on 8-1- 1978 he  be graded  as the senior-most in the department and to be  in a  position to  stake claim  to the  post  of  the



Director; Dr. Sharma’s induction in the promotional level of the Service being of 1-4-1981 and not on 1-1-1977.      As a  step towards  amalgamation, on November 21, 1985, by means of a Notification, Dr. Sharma and a few others were declared to  be promoted  to the Special Service with effect from 1-1-1977. Dr. Ram who had regarded himself as senior to Dr. Sharma  challenged the  retrospective promotion  of  Dr. Sharma as  violating his  seniority claim  before  the  High Court of Patna. On 2-12-1986, his writ petition was disposed of by  the High  Court with  certain directions,  primary of which was  to finalize  the gradation  list and the class to which Dr. Ram belonged, within three months from the date of the order.  Since that  direction was not complied with, Dr. Ram moved  the High  Court by  way of  a Contempt  Petition. There the Government put forth the plea that final seniority list dated  3-12-1987 had been published whereby Dr. Ram was shown at  serial no.  1  and  Dr.  Sharma  at  serial  no.2. Challenging the  final  gradation  list  of  3-12-1987,  Dr. Sharma approached  the High  Court and  sought the relief of declaration that  there was  no service  by the  name  Bihar Animal Husbandry Service Class-I (Special) and that it could not change places to be the ‘basic service’ and further that order dated 3-12-1987 changing the gradation list was beyond the powers  of the  Government and  its bureaucracy when the Commission had  held him  entitled to promotion on 1-1-1977. The High Court on the pleadings of the parties and the stand taken by  the Government  opined that when no separate cadre known as Animal Husbandry Service Class-I (Special) had been created which  is said  to be  superior to the regular Bihar Animal Husbandry  Service Class-I,  then the  appointment of Dr. Ram  on 9-1-1978  shall be  taken to  have been  made in Bihar Animal  Husbandry Service Class-I, in which Dr. Sharma had been  appointed as early as on 6-7-1966 and consequently there could  be no question of Dr. Ram being shown senior to Dr.  Sharma   in  the  purported  exercise  of  notifying  a gradation list  of officers  in the  newly created  cadre of Special Service. Emphasis was also laid by the High Court on the fact  situation that  Dr.  Sharma  had  only  been  held entitled to  selection  grade  (in  classification  iii)  as concurred to  by the  Commission vide order dated 21-11-1985 effective  from  1-1-1977,  which  date  was  later  wrongly changed to  1-2-1983 and  then brought back to 1-4-1981. The Commission, as  is evident, had found Dr. Sharma entitled to selection grade  with effect  from 1-1-1977  and there could thus  be   no  justification  to  change  the  date  of  his entitlement   to    selection   grades    of    the    three classifications; be  they called promotions or otherwise. It is for  such view taken that the High Court allowed the writ petition of  Dr. Sharma  and on that basis denied the prayer of mandamus of Dr. Ram seeking his appointment as Director.      There is no need to burden this judgment by elaborating the shifting  stands adopted  by the bureaucracy who had one line of  thinking when one set of officers were in chair and another when  came the  other set.  It only needs to be said that this  tossing disclosed  indeed loyalties  to sectarian interests and  not to  law. Before  the High Court, to begin with, the  affidavit of  the State put forward was to oppose the claim of Dr, Sharma but later the same was withdrawn and a fresh  affidavit filed  by another  officer who  gave  out details to  show how  that  Special  Service  was  illegally created and  how directions  had  been  issued  to  have  it subsequently withdrawn.  It is the later affidavit which was accepted and made use of extensively by the High Court while allowing writ  petition of  Dr. Sharma  in quoting  passages therefrom in  its judgment,  absolving itself from examining



the question  as to  whether there  ever existed  a cadre of Bihar Animal  Husbandry Service  Class-I (Special), in which Dr. Ram was appointed by process of direct recruitment on 9- 1-1978, and  whether Dr. Sharma was promoted to that service with effect  from 1-4-1981. Despite that the matter does not seem to  rest, because  in the  affidavits received from the State Government  in the  special leave  petition, the stand originally adopted,  i.e., to oppose the claim of Dr. Sharma has been  resorted to.  It would  rather if not for anything else, be  better for the sake of prudence to leave aside the affidavits of  the State  given from  time  to  time  unless direly required,  because of  the bureaucracy  shifting  its loyalties and  stances depending  on the weather. Dr. Sharma in his  additional affidavit  dated 1-2-1992  has attributed malafide to  a certain politician in power for promoting the cause of  Dr. Ram, in whatever station of life he was in the past  before  being  in  such  position,  during  which  the controversy kept brewed in government quarters. It would not be worth its while to go into this question and pronounce on the issue.  It would  be better  to go  to the  worth of the government documents whichever have appeared on the record.      But for  the  operating  Bihar  and  Orissa  Veterinary Service Class-I  Rules, no  other Rules  are claimed  to  be existing governing  the Service conditions of the members of the Service.  lt is otherwise not denied that the Department of Animal Husbandry is covered under the Veterinary Service. Since when Service in the Animal Husbandry Department got to be known  as Bihar  Animal Husbandry Service Class-I is left to obscurity  except  that  when  Dr.  Sharma  joined,  this Service was  existing in  the year  1966. The  appearance of Special Service is known to be born in January 1978 when its advertised  post   was  filled.   In  the  original  counter affidavit filed  by the  State before  the High  Court,  the Under Secretary  to the  Department of  Animal  Husbandry  & Fisheries stated  that Special  Service cannot  be meant  to indicate that  it was not a part of the Service and that the word ‘Special’  was used  as a  suffix to  indicate a higher scale of  pay in  the Service itself. The word ‘Special’ was then explained  to mean to identify the scale of pay. It was then not  denied that  all the posts in the Service, whether within or  without the  cadre, were  Class-I posts under the Bihar Service  Code. In  the supplementary  affidavit of the State, it  was highlighted  contrarily chat  the  Bihar  and Orissa Veterinary  Service Class-I  Recruitment Rules,  1935 were still applicable to the Animal Husbandry Department and that there was no provision in the said Rules to declare the Special Service  as a basic cadre, and thus its constitution was not in accordance with the Rules, It was complained that its creation  was rather  rusted through  without  obtaining concurrence of  the  Personnel  and  Administrative  Reforms Department, the  Finance Department  or even the approval of council of  ministers. In  view of this State of affairs, it would thus  be safe  to proceed  on the  basis that  the old Rules of  1935 are the only statutory Rules available on the subject  and   that  those   Rules  are  applicable  in  the Department of  Animal Husbandry.  Those Rules  permitting no such course  a new  service could  not be  established.  The special post  created in  the Special  Service proceeds on a fait accompli  towards establishing such Service, clearly in violation of  the Rules when regular service was existing in the  Department  in  consonance  with  the  Rules.  Rule  14 specifically says  that seniority  in the  Service shall  be determined  by   the  date   of  the  officer’s  substantive appointment to  the Service irrespective of the pay drawn by him. When  the Government’s  stand initially,  in  the  High



Court has  been ,  as also  here, that  Special Service  was nothing but  a species  of the  regular Service  and Special only in  the sense  to indicate a selection grade, it cannot for a  moment then  be swallowed that the latter of the two; i.e. the  special service, was the basic cadre, to be put at the pedestal  of superiority  The game  of that  section  of bureaucracy  which   wanted  to   help   Dr.   Ram   towards Directorship of  the Department  was firstly  to  create  an artificial and  separate service,  and  if  not  meaning  to create one  then to  create a  post which  would  fetch  the promotional pay  scale as  due to  Class-1 officers and then claim seniority for Dr. ram on two grounds namely, he was on the date of his appointment in  higher scale of pay than Dr. Sharma, and  apart from that he was otherwise on the date of his appointment  to the  Service senior  to him  because Or. Sharma got  the promotional  scale in the year 1981, and not in the year 1977. The argument conveniently forgets that the Service is  one and the artificiality created by the Special Service is of no consequence, more so when both the versions of  the  bureaucracy  of  the  State  do  not  maintain  the distinction, even  though later a basic cadre was carved for the Special  Service. The  demarcation  again  was  given  a floating lesson  for the  future. If the Service is one then the date  of entry  into the service in substantive capacity is the  determining factor  for  seniority  irrespective  of scale of  pay, as envisaged by Rule 14. But if there are two Services as  has been  taken and  hit by the High Court, the creation of  the Special  Service to  plug in  Dr. Ram at an advantageous position  was a  measure of naked manipulation, an unfair  act, utterly  unreasonable, in  abuse  of  power, without resort  to law and in the teeth of the Rules. It can never be  said that  Dr. Sharma  on attaining  of  selection grade entered  into a  new  service  so  as  to  subordinate himself to  Dr. Ram  who was  allegedly an  earlier  entrant (though not  holding so)  to the  service on  the fortuitous circumstance of  a side  entry. Thus  it becomes evident and bare that  the entire  game was played throwing to winds all sense of propriety and making the Rule of law a mockery.      Attention must  now be  diverted to  notification dated November 21,  1986, issued  by the  Special Secretary to the Government to  the Director,  Animal  Husbandry  Department, Bihar, Patna  which has  been quashed  by the High Court. It says "In  relation to this Department’s letter No.9043 dated 31-8-1978 on the subject mentioned above as directed, I have to state  that the  Government has taken a decision that the seniority list of the Bihar Animal Husbandry Service Class-1 (Special) be  prepared separately.  Simultaneously  treating the Bihar  Animal Husbandry Service Class-I Special as basic cadre, action  may be  taken to confirmation of the officers promoted from  the lower  scale and  the officers  appointed directly. This would be necessary for the future promotion." The Special  Service by  stroke of pen has been made a basic cadre, giving  go-bye to  the statutory  Veterinary Services Class-I Rules  1935  which  are  applicable  in  the  Animal Husbandry Department,  Animal Husbandry as its progeny being a species  of the Veterinary Services. We fail to appreciate how a  service/cadre could  be a  basic cadre when it itself was born  in 1978.  How could  rights created in the regular service/cadre in  the Animal  Husbandry Service  Class-I  be done away  with or  be trampled  upon by  the newly  created service/cadre. And  how could  it apply retrospectively when the State  itself made  the  policy  applicable  for  future promotions  being  due  after  November  21,  1986.  Earlier promotions were  in any  case protected.  All the  dates  of promotion attributed  to the  cause of Dr. Sharma were prior



to November  21, 1986  and  on  which  dates  there  was  no question of  any basis  cadre coming  on the  scene to  cast shadow thereon  by an  executive fiat.  And yet notification dated 3-12-87,  also quashed  by the  High  Court,  followed showing Dr.  Ram to be the seniormost and Dr. Sharma next to him. Vested  rights of Dr. Sharma could not be taken away in this manner,  he being  in the service from 1966 entitled to selection  grade  with  effect  from  1-1-1977  in  his  own service/cadre, as held by the High Court. There was no basis or  occasion   for  Dr.  Sharma’s  cadre  being  treated  as subsidiary or  secondary to  a newly  created  cadre  termed basic cadre.  We, therefore, do not see any infirmity in the High Court’s order      Thus  the   views  above   expressed,  added  to  views expressed by the High Court, leads to the conclusion that no relief is  due to  the appellant  in these two appeals. They are consequently dismissed without any order as to costs.