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PETITIONER: S.   K. GHOSH AND ANR.

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT: 02/04/1968

BENCH: BHARGAVA, VISHISHTHA BENCH: BHARGAVA, VISHISHTHA RAMASWAMI, V. SHELAT, J.M.

CITATION:  1968 AIR 1385            1968 SCR  (3) 631  CITATOR INFO :  D          1975 SC1269  (7)

ACT: Rules  for recruitment to the grade of Directors  of  Postal Services in Indian Postal Service, Class 1, in the Posts and Telegraphs  Department,  r. 3-Promotion as  Directors  front time  scale  of Class 1 service based on selection  and  not seniority  Revision of their seniority in the time scale  of Class  1 Service later--Seniority of Directors inter  se  if could be revised --Such revision if violative of Art. 16  of Constitution.

HEADNOTE: The    petitioners   were   promoted   from    the    Postal Superintendents Service Class II to the time scale of  Class I Service, and, respondents 3 to  7 were direct recruits  to the time scale of Class I service. On 30th   January   1957, Government  fixed  the inter se seniority  between  them  by showing  the  petitioners as senior to respondents 3  to  7. Subsequently,  the petitioners were promoted as Directors of Postal Services, and some     time later, respondents 3 to 7 were also promoted as Directors so that,     the petitioners were senior to respondents 3 to 7 even in the grade of Directors. On  5th June 1965 Government revised the seniority of  these officers  in the time scale of Class I service,  by  showing respondents 3 to    7  as senior to the petitioners, and  on 17th January 1966, their seniority in   the     grade     of Directors  was  also revised placing respondents 3 to  7  as senior to the petitioners. The  petitioners  challenged the two orders  in  a  petition under Art. 32.      The  Government justified its orders  on the grounds, that, the order of    30th  January  1957   was passed by mistake as a relevant rule, namely,     Supplementary r. 2(15) was not given effect to, and, since the revision of seniority  in  the  time  scale  of  Class  I  Service   was justified,  the consequiential revision of seniority in  the grade of Directors was also valid.      HELD  :  The  revision of seniority  in  the  grade  of Directors by order  dated 17th January 1966 was not based on any rule or applicable principle. it was therefore arbitrary and violative of Art. 16 and must be struck  down. Once that

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order was quashed, the petitioners would not be affected  by the  order  dated 5th June 1965, and therefore, it  was  not necessary to   decide on its validity. [638 E-G].      Rule  3 of the Rule,; for recruitment lo the  grade  of Directors of   Postal  Services  in Indian  Postal  Services Class 1. in the Posts and Telegraphs Department, shows  that appointment to the grade of Directors is     made         by selection  and  not on the basis of seniority  in  the  time scale. It      Must therefore be presumed that the promotion and appointment, of the  petitioners and respondents 3 to  7 as Director-, was based on merit, which      was to be taken into  account at the time of selection and not on  seniority in the time scale of Class I Service. Once a member of Class I Service      in the time scale was selected for  promotion to the grade of Directors     and   given   seniority   over another officer selected later, the seniority so  determined as a result of selection could not be made dependent on  the seniority  in the time scale. Therefore, even if  there  was justification for   revising  the seniority inter se of  the petitioners and respondents 3 to 7 in   the  time  scale  of Class  I  Service,  that  revision  could  not  in  any  way affecttheir order of seniority in the grade of Directors  to which  they  were  promoted on the  basis  of  selection  is accordance with the Rules. [637 G-H;] 638 A-C]. 632

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition No. 131 of 1966. Petition tinder Art. 32 of the Constitution of India for the enforcement of fundamental rights. A.   K. Sen and K. B. Mehta, for the petitioners. B.   Sen and R. H. Dhebar for respondents Nos. 1 and 2. B.   P. Maheshwari and S. M. Jain, for respondent No. 4. The Judgment of the Court was delivered by Bhargava, J. S. K. Ghosh and A. M. Narula, the two petition- ers  in this petition under Article 32 of the  Constitution, appeared  for  the  examination held in  October,  1945  for recruitment  to  the Indian Audit and Accounts  Service  and other  Allied Central Services.  On the basis of the  result of   the  examination,  both  of  them  were  selected   for appointment to the Postal Superintendents’ Service Class  II Petitioner No. 1, S. K. Ghosh, joined a post in that Service on  probation  with  effect  from  9th  April,  1947,  while petitioner  No. 2, A. M. Narula, joined as a probationer  on 11  th  February, 1947.  At that time there was no  Class  I Service  in the Postal Department.  In Class II Service,  to which these two petitioners were appointed, recruitment  was made  by a competitive examination to the extent of  50  per cent,  while the remaining 50 per cent posts were filled  by promotion from lower cadres of the Department. On 24th May, 1948, the Government sanctioned the creation of Indian Postal Service Class I with four grades as follows (i) Directors of    Postal Services, Grade I, (ii) Directors of Postal Services, Grade II, (iii)     Senior Time Scale, and (iv) Junior Time Scale. This  decision  of the Government was  communicated  to  the Director-General,  Posts  and Telegraphs,  by  their  letter dated  13th November, 1948, which also laid down the  manner of  recruitment to the Service and the various sources  from which recruitment was to be made.  The normal rule laid down was  that  appointment to the junior time-scale were  to  be

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made by direct recruitment against 75% of the vacancies  and the  remaining  25%  were  to  be  filled  by  promotion  by selection    of   the   best   officers   in   the    Postal Superintendents’ Service Class II, seniority being  regarded only  when all other qualifications were practically  equal. To  this  rule, however, an exception was laid down  to  the effect  that  all  initial appointments to  the  time  scale cadres of the Indian Postal Service Class I consisting of 64 posts  (23 in the senior scale and 41 in the  junior  scale) were to be made by promotion from amongst    officers     of Postal Superintendents’ Service Class II by selection.  Future recruitment was to be governed by the general rule     cited above.  Appointments to Grade IT of the Directors of  Postal Services was to be made by promotion by selection 633 of the best officers in the senior time scale of the  Indian Postal Service, Class 1, seniority being regarded only where other   qualifications   were  practically   equal.    These promotions were to be made through a Departmental  Promotion Committee  consisting  of the  Director-General,  Posts  and Telegraphs,   Senior  Deputy  Director-General,  Posts   and Telegraphs,  and  a  member of the  Federal  Public  Service Commission.  Appointments to Grade I of Directors of  Postal Services  were  to  be made by promotion from  Grade  11  of Directors  in  the order of seniority, provided  the  senior officer was considered fit for such promotion.  The  Service under these rules was, in fact, constituted with effect from 15th September, 1948, and, even in cases where  appointments were   actually  made  later,  they  were   made   effective retrospectively from 15 th September, 1948. for purposes  of confirmation.   The two petitioners were still  probationers in   Postal  Superintendents’  Service  Class  II  on   15th September,  1948; and, since only persons holding  permanent posts  in  the cadre of Class 11 were to be  considered  for appointment  to this Class I Service, the  petitioners  were not  considered at the initial stage.  Both the  petitioners completed  their probation in Class 11 Service in  the  year 1949.   According to the petitioners, petitioner No.  1  was promoted  to  Class  I Service on 2nd  December,  1949,  and petitioner No. 2 on 5th December, 1949.  They were shown  as officiating in this Service.  Subsequently, petitioner No. 1 was  confirmed in the junior time scale of Class  I  Service with effect from IIth May, 1951, while petitioner No. 2  was confirmed  with  effect from 12th February,  1952.   In  the meantime,  direct  recruitment to Class I Service  was  also made  on the basis of competitive examinations held  in  the years  1948 and 1949, and a number of direct  recruits  were selected for appointment to this Service.  Amongst them were K. Ramamurti, N. C. Talukdar, Shiv Nath, S. L. Rajan and  B. N. Dubey, respondents Nos. 3 to 7 in the petition.   Besides these,  a number of other direct recruits were  also  taken, but  it is unnecessary to take notice of them,  because  the petitioners   have   sought  relief   against   these   five respondents  only, the others having already retired by  the time this petition was filed.  These five respondents joined Class  1  Service as probationers on various  dates  falling between   16th   March,  1950  and  22nd   November,   1950. Thereafter,  the  question  of  fixing  seniority  inter  se between the direct recruits and officers promoted from Class II  Service  came up for consideration  of  the  Government. Government  communicated their final decision  through  ’the letter  dated 30th January, 1957.  The letter indicated  the considerations that led the Government to fix the  seniority of  the  various officers and to the letter was  annexed  an Appendix giving the seniority of junior time scale officers.

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In this list, the two petitioners were placed at Nos. 31 and 32, while the five respondents were placed junior to them at Nos.  33, 36, 41, 42 and 44.  In the letter, the  Government speci- 634 fically  stated  that,  in arriving at  the  decisions,  the Government   had   given  due  consideration  to   all   the representations  submitted  by officers on the  subject  and replies to these representations were not, therefore,  being sent separately.  Only one representation of A. C.  Mohamedi was    still   under   consideration;   but,    with    that representation,  we  are not concerned in the  present  writ petition.   The  Government added that  the  seniority  list along  with a copy of the memorandum was to be given to  all the  officers concerned for their information and they  were to be informed that any further representations against  the principles on the basis of which the seniority list had been prepared,  would not be entertained.  At the time when  this seniority was fixed, the principles, which, according to the petitioners,  were applicable, were those laid down  in  the Ministry of Home Affairs’ Office Memorandum dated 22nd June, 1949,  paragraph  2  of which contained  the  decision  that seniority  in respect of persons employed in any  particular grade should, as a general rule, be determined on the  basis of the length of service in that Grade as well as service in an equivalent Grade, irrespective of whether the latter  was under  the  Central  or Provincial Government  in  India  or Pakistan.   The order of seniority laid down ’by  the  order dated 30th January, 1957 continued in force for a number  of years. The  Ministry of Home Affairs subsequently issued an  Office Memorandum  on  22nd  December, 1959,  laying  down  general principles  for determining seniority of various  categories of  persons  employed  in  Central  Services.   This   Memo. referred to various earlier Office Memoranda, including  the one  dated  22nd  June, 1949 issued by  the  Home  Ministry. Paragraph  3  of  this  Office  Memo.  laid  down  that  the instructions  contained  in those various  Office  Memoranda were  thereby cancelled but made an exception 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   to  this  Memorandum  were  not  to  apply   with retrospective  effect,  but  were to come  into  force  with effect  from  the date of issue of these  orders,  unless  a different  date in respect of any  particular  service/grade from  which these revised principles were to be adopted  for purposes of determining seniority had already been or was to be thereafter agreed to by the Home Ministry.  In para. 2 of the  Annexure  it was again laid down that, 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  were  to  retain  the relative   seniority  already  assigned  to  them  or   such seniority as might thereafter be assigned to them under  the existing orders applicable to their cases and were to be  en bloc senior to all others in that grade.  It was. thus.  the case  of the petitioners that this Office Memorandum of  2nd December, 1959 did not in any way affect their seniority 635 Government  dated  30th January,  1957.   Subsequently,  the petitioners as well as respondents Nos. 3 to 7 were promoted as Directors.  The common case of both the parties was that, by  the time these promotions were made, the two  grades  of Directors  of  Postal  Services were  amalgamated  into  one

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single grade, and the promotions of the petitioners as  well as respondents Nos. 3 to 7 were to that grade.  The case  of the  petitioners  was  that respondents Nos.  3  to  7  were promoted  as  Directors after the petitioners, so  that  the petitioners  were  recognised  as seniors in  the  grade  of Directors   also.   These  promotions,  according   to   the petitioners, were made some time in the years 1961 and 1962. Subsequently, by an Order dated 5th June, 1965, the  Govern- ment  suddenly  revised  the  seniority  of  these   various officers.   The  letter dated 5th June, 1965  mentioned  the subject  as "Revision of seniority in the  erstwhile  Junior Time  Scale of the Indian Postal Service, Class 1 of  direct recruits from the combined competitive examinations held  in ’the  years  1947,  1948  and 1949." As  a  result  of  this revision of seniority in the junior time scale of the Indian Postal  Service Class 1, respondents Nos. 3 to 7 were  shown as  senior  to  the petitioners.   The  places  allotted  to respondents Nos. 3 to 7 were at Nos. 17, 20, 22, 23 and  25, while the two petitioners were placed below them at Nos.  26 and  27.   Later,  again another Order was  issued  on  17th January  1966  revising  the  seniority  in  the  grade   of Directors  of Postal Services, and, in that  revision  also, respondents  Nos. 3 to 7 were placed as seniors at Nos.  14, 15,  17, 18 and 19, while the two petitioners were shown  as junior  to  them  at  Nos.  20  and  21.   The  petitioners, consequently,  filed this petition under Article 32  of  the Constitution challenging the revision of their seniority  in the  junior time scale by the order dated 5th June, 1965  as well  as  ’the revision of their seniority in the  grade  of Directors  of  Postal  Services  by  the  order  dated  17th January, 1966. The principal -round, on which these orders were  challenged by  the  petitioners,  was that they had been  made  by  the Government  arbitrarily  in exercise of their power  to  fix seniority  and.  by  such arbitrary  action,  had  adversely affected the rights of the petitioners vis-a-vis respondents Nos. 3 to 7 in violation of Article 16 of the  Constitution. The  point  taken was that the seniority  having  once  been fixed  by the Order dated 30th January, 1957  in  accordance with  the  Rules  then in force  could  not  be  arbitrarily disturbed  by  the Government, particularly when  the  Rules were  never revised subsequently, nor were any  fresh  Rules issued  governing  the seniority of these officers  who  had been  appointed to the junior time scale of Class 1  Service prior to 30th January. 1957.  Learned counsel appearing  for the  petitioners  formulated  four  different  grounds   for challenge of the Order dated 5th June, 636 1965, all leading to the contention that that Order violated Art.  16  of  the Constitution, or was  passed  against  the principles of natural justice.  In addition, the Order dated 17th January, 1966 was challenged on one more ground,  viz., that,  even if it be held that the re-fixation of  seniority in  the junior scale of Class I Service was  justified,  the Order of the Government revising the seniority in the  grade of  Directors was in any case void and illegal.  This  point was  urged on the basis that appointment to  the  Directors’ grade was made on the basis of selection and there could not be automatic revision of seniority in that grade  consequent upon  the  revision of seniority in the time  scale  of  the Service.  The petition was opposed by respondents 1 and 2, the  Union of India, and the Director-General of Posts and  Telegraphs, as on behalf of some of the other respondents.  Most of  the facts put forward by the petitioners have been admitted, but

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the  inferences and conclusions drawn by the petitioners  as well as the submissions on their behalf in the writ petition were challenged.  The principal contention for resisting the petition  was that the order dated 30th January 1957  fixing the  seniority had been made by mistake as a result  of  the Government  having  ignored Supplementary  Rule  2(15),  the effect  of  which  was that for purposes  of  seniority  the service  of respondents 3 to 7 in junior time scale Grade  I was  wrongly  taken  as commencing from the  date  of  their confirmation  in  the Service, while, correctly,  it  should have  been  taken from the date on which  these  respondents joined  as  probationers.  It was urged that, on  a  correct interpretation of the Rules, respondents Nos. 3 to 7  should have  been  held,  even  initially,  to  be  senior  to  the petitioners  in the _junior scale of the Class  T.  Service. It  was further urged that, since the revision of  seniority in  the junior time scale of Class I Service  was  justified and  not arbitrary, the consequential revision of  seniority in the grade of Directors of Postal Services was also valid. Arguments  were addressed at length on both aspects  of  the case,  but we think that it is not necessary for us in  this case  to  decide  the first point raised on  behalf  of  the petitioners  regarding  the validity of  the  refixation  of their seniority in the junior time scale of Class I  Service by  the order dated 5th June, 1965, because the  petitioners could even obtain adequate relief on the alternative  ground that the revision of seniority in the grade of Directors  by the  order  dated 17th January, 1966 was  void.   The  peti- tioners  in  para.  4  of their  petition  made  a  definite assertion  that  respondents  3 to 7 were  all  promoted  as Directors  after  the petitioners.  This  factual  assertion made  in this paragraph has not been denied in any  counter- affidavit  filed on behalf of the various  respondents.   In the  course of arguments before us, it was urged by  learned counsel appearing for the respondents that the peti- 637 tioners  as  well as respondents 3 to 7 were only  shown  as officiating in the grade of Directors in the Civil List and, consequently  we should not base our decision on  acceptance of  the  allegation  made  ’by  the  petitioners  that   the petitioners and respondents 3 to 7 had all been promoted  as Directors.   We are unable to accept this  submission.   The entry in the Civil List is no proof that the petitioners and the  live respondents have not been promoted  in  accordance with  the Rules laid down by the Government  for  promotion. If  it was a fact that there had been no promotion  in  com- pliance  with those Rules, the assertion made on  behalf  of the   petitioners   in  the  petition   should   have   been specifically controverted. The  principles for appointment to the post of Directors  of Postal  Services  were  initially  laid  down  by  the  Home Ministry’s Memorandum dated 24th May, 1948 to which we  have already  ,referred.  As indicated earlier, it was laid  down that  appointments  to Grade It of the Directors  of  Postal Services  were to be made by promotion by selection  of  the best officers in the senior time scale of the Indian  Postal Services Class 1, seniority being regarded only where  other qualifications were practically equal.  From the very  first stage, therefore, appointments to the Posts of Directors  of Postal  Services were to be made on the basis of  merit  and not  on the basis of seniority.  Seniority was to  be  taken into account -only if other qualifications were  practically equal.  it appears that, after ’the two grades of  Directors of  Postal Services were amalgamated, some fresh rules  were promulgated.   The relevant Rules have been brought  to  our

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notice  by  placing  before  us  extracts  from  Posts   and Telegraphs  Manual Volume IV, 4th Edn., in  which  paragraph 153 mentioned that the rules for recruitment to the grade of Directors  of Postal Services in the Indian  Postal  Service Class I in the Posts and Telegraphs Department are given  in Appendix  6-A.  A copy of Appendix 6-A has also been  placed before  us.   The  Appendix bears  the  heading  "Rules  for recruitment to the grade of Directors of Postal Services  in the  Indian  Postal  Services,  Class I  in  the  Posts  and Telegraph  Department".  Rule 2 in this Appendix  lays  down the  scale  of’  pay  of the post  in  the  grade  which  is admittedly Rs. 1,300-601,600.  Rule 3 prescribes the  method of recruitment and is as Follows:-               "  Recruitment to posts in the grade shall  be               by  selection from among the officers  of  the               Senior   Time  Scale  of  the  Indian   Postal               Service, Class I,, one post being reserved for               promotion  of Presidency Postmasters,  on  the               basis of selection." This Rule also makes it clear that appointment to the  grade of Directors of Postal Services is made by selection and not on the basis of promotion in accordance with seniority.  The presumption exists that the promotion of the petitioners and respondents 638 3  to  7 to the grade of Directors must have  been  made  in accordance  with these instructions and rules, so  that  the appointment of all these concerned parties as Directors  was based  on  merit  to be taken into account at  the  time  of selection and not on seniority in the time scale of Class  I Service.   Once a member of the Class I Service in the  time scale  was selected for promotion to the grade  of  Director and given seniority over another officer selected later, the seniority  so determined as a result of selection could  not be made dependent on the seniority in the time scale.  It is clear  that,  in  these circumstances,  even  if  there  was justification  for  revising the seniority inter se  of  the petitioners  and  respondents 3 to 7 in the  time  scale  of Class I Service, that revision of seniority could not in any way  affect  their  order  of  seniority  in  the  grade  of Directors  to  which  they were promoted  on  the  basis  of selection  in accordance with the rules.  It is,  therefore, clear  that,  even  if  it be held that  the  order  of  the Government  dated 5th June, 1965 revising the  seniority  of these officers in the junior time scale was valid, the order dated 17th January, 1966 revising the seniority in the grade of Directors of Postal Services is not valid and  justified. The  seniority in the grade of Directors of Postal  Services was  not dependent on the inter se seniority in  the  junior time scale and any alteration in the seniority in the latter could not form the basis for revising ’the seniority in  the former  grade.  No other justification for the  revision  of the  seniority in the grade of Directors of Postal  Services was put forward on behalf of any of the respondents.  It is, thus,  clear that the revision of seniority in the grade  of Directors  of  Postal  Services  by  the  order  dated  17th January,  1966  was  not based on any  rule  or  appropriate principle  applicable to determination of seniority in  that grade, and must, therefore, be held to be totally arbitrary. Such  an arbitrary order, which affects the civil rights  of the  petitioners  in  respect  of  future  promotion,  must, therefore,  be  struck  down as violating  Art.  16  of  the Constitution.   Once this order dated 17th January, 1966  is quashed,  the  petitioners  will no longer  be  affected  in future by the revision of their seniority in the time  scale

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of  the  Service  by the order dated  5th  June,  1965  and, consequently, we have refrained from going into the question of  the  validity of that order.  The  petitioners  are  not claiming  any relief on the basis of the invalidity  of  the order  dated  5th June, 1965 which would give  to  them  any additional benefit over and above the relief which they  can obtain on the order dated 17th January, 1966 being quashed. As  a  result, we allow this petition and  quash  the  order dated  17th  January, 1966, revising the  seniority  of  the petitioners  and  respondents Nos. 3 to 7 in  the  grade  of Directors of Postal Services.  In the circumstances of  this case,  we  direct that the petitioners ’will  receive  their costs from respondent No. 1.’ V.P.S. Petition allowed. L7Sup.C.I./68--2,500-Sec. VI-24-4-69-GIPF.                             639