http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: S.   N. KHARKHANIS & ORS.

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT14/03/1974

BENCH: REDDY, P. JAGANMOHAN BENCH: REDDY, P. JAGANMOHAN RAY, A.N. (CJ) DWIVEDI, S.N. GOSWAMI, P.K. SARKARIA, RANJIT SINGH

CITATION:  1974 AIR 2302            1974 SCR  (3) 589  1974 SCC  (4) 360

ACT: Constitution  of  India, Art. 309,  proviso-integrating  two Class   I  services  by  Presidential  Resolution--Date   of integration made retrospective by Government’s  letter-Legal validity of subsequent letter.

HEADNOTE: By  Presidential  resolution dated 12th  August,  1959,  the Government  of India, under the proviso to Art. 309  of  the Constitution,  combined  two  services  of  Central   Excise Service  Class  I and Indian Customs Service  Class  I  with effect  from 15th August, 1959.  AR the  petitioners  joined the  respective services with effect from 13th July,  1’959. Later  by  decision  dated 7th  April  1970  the  Government decided that a combined list of seniority of officers in the service should be prepared with reference to April 1,  1959, as  being  the date of merger.  The  petitioners  complained that  by reason of this they were excluded from the list  of officers  appointed  to  the  initial  constitution  to  the combined cadre even though they had joined the two  separate services  on 13th July, 1959, with the result  that  persons junior to them had become seniors. It  was contended that the date of 1st April, 1959 on  which the  two services were combined for the purpose of inter  se seniority  was an artificial date chosen arbitrarily and  is sought to be given effect to without any legal authority. HELD : The contention must be upheld.  The Government had no authority  to  override the Presidential resolution  by  any subsequent  decision  which lacked legal authority  and  was violative of Art. 14 of the Constitution.  The  Presidential Resolution  of  12th August, 1959 which drew  its  authority from  the proviso to Art. 309 was clear and  categorical  in that it not only showed that the question of integration  of the  Central Excise Service Class I and the  Indian  Customs Service  Class  I which was older of the  two  services  was under  consideration  of the Government of India  for  quite sometime  but  that "the President has now been  pleased  to decide  that the two services should be constituted  into  a single service with effect from 15th August, 1959" and  that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

"the services will initially be formed from amongst all  the existing class I officers of the Customs and Central  Excise Services  who will henceforth be borne on a single  combined cadre  for  all purposes".  The subsequent decision  of  the Government  conveyed in the letter of 7th April 1970 had  no legal authority as it was not purported to have been made in the name or with the authority of the President of India nor did it in any way seek to amend the Presidential  Resolution of  12th August, 1959 nor did it purport to change the  date on and from which the integration was given effect to.  [594 C; 593 B-D] Since  a  final decision was taken on 7th  April,  1970  the petitioners could not have come to this Court earlier.  [592 H]

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 286 of 1970. Under Art. 32 of Constitution of India- for the  enforcement of Fundamental rights. S.   N. Prasad, for the petitioners. G.   Das and R. N. Sachthey, for the respondents. 590                ARGUMENTS For  the Petitioners: By Presidential resolution dated  12th August,  1959  the Indian Customs Service Class  I  and  the Central Excise Service Class I were integrated with  effect. from  15th  August, 1959.  The resolution also  stated  that "the  service will initially be formed from amongst all  the existing class I officers of the Customs and Central  Excise Services, who will henceforth be borne on a single  combined cadre for all purposes." The  Government  took  a  decision to  change  the  date  of constitution  of  the cadre in 1960.  On  objections  having been  raised  by  the service associations  the  matter  was referred to the Union Public Service Commission in 1967  and on  the  basis of the recommendations of  the  Commission  a final decision was taken on 7th April, 1970.  For the  first time  in the letter of 7th April, 1970, 1st April, 1959  was taken as the date on which, the two services were merged and the  petitioners  made  representations  against  the   said arbitrary  date.   Since after this date some  juniors  were promoted, the petitioners approached this Court. As  stated in paragraph 5 of the letter- of 7th April,  1970 by  taking  the  artificial  date of  1st  April,  1959  the petitioners  have been discriminated against as  the  direct recruits of the year 1958 have been included in the  initial constitution  of  the service and the petitioners  who  were direct recruits of the year 1959 and who at the time of  the integration  of the two services were existing officers  and formed  the cadre of the combined services had not  been  so included. There cannot be any question of leaches as explained above. For  the respondent: The decision to merge the two  services was  taken  in  March 1959 and  an  official  committee  was appointed  to  determine the inter  se  seniority.   Pending finalisation of seniority list it was decided to freeze  the position as on a particular point of time.  The date  chosen was  1st April, 1959 though the formal resolution  to  merge the  two  services was published on 12th August  1959.   The seniority  list published on 6th January, 1960 was based  on the position as it was on 1st April. 1959 and the promotions made  in  the  service after that date  have  been  ignored, Direct recruits who joined the Class I service and  officers

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

promoted  after  1  st April, 1959 did  not  figure  in  the seniority  list  circulated  on  6th  January,  1959.    The petitioners  who joined Class I service in July 19  59  were rightly  not included in the combined seniority list of  6th January, 1960. The petitioners have not raised any objection regarding  the merger  from  1959 to 1970 and it was not open  to  them  to approach this Court after such long delay. The Judgment of the Court was delivered by JAGANMOHAN REDDY, J.-Six petitioners, of whom the 4th  peti- tioner  has since died. challenge the decision of the  first respondent,  the  Union of India, fixing the  principles  of seniority  of  members  of the Customs  and  Central  Excise Service  Class  I  as  if the  combined  Service  came  into existence  on April 1, 1959, instead of August 15,  1959-the date  on which the Presidential Resolution dated August  12, 1959 said that the combined Service would come into  effect. Petitioners  2,  3,  4 & 6 were  appointed  as  probationary Superintendents  of  Central Excise Class I in  the  Central Excise  Service lass  with effect from July 13, 1959 on  the result of the combined competitive 591 examination held by the second respondent, the Union  Public Service  Commission,  in  1958: (vide  notification  of  the Government  of  India (Central Excise  Establishment)  dated August 4, 1959).  Similarly, petitioners 1 & 5 were 1959, as probationary  Assistant Collectors of Customs in the  Indian Customs  Service Class I on the result  same  date,  namely, from  July 13, of the combined competitive examination  held by the second respondent in 1958: (vide notification of  the Government of India (Customs Establishment) dated August  4, 1959).    The   petitioners  say  that   contrary   to   the Presidential  Resolution  of August 12, 1959,  creating  the combined  Service of Customs and ,Central Excise,  Class  1, comprising of all the existing members of both the  Services as  from  August  15, 1959, the  impugned  decision  of  the Government  which prescribed the principles of seniority  of members  of the two individual Services as if  the  combined Service  came into existence on April 1, 1959, would  affect their seniority as they would be considered to be  appointed only after the constitution of the combined Service, when in fact  they were members of one or other of the two  Services on  the date when the combined Service was created.  As  the combined  list of seniority of Officers in the  Service  was prepared  with reference to April 1, 1959 as being the  date of  the  merger,  the petitioners complain  that  they  were excluded from the list of Officers appointed to the  initial constitution  of  the  Indian  Customs  and  Central  Excise Service  Class  1,  even  though they  had  joined  the  two separate Services   on  July 13, 1969, as a  consequence  of whichpersons who would be     juniors,      if      the principles of seniority were made applicable tothem, have become  senior and have been promoted by  overlooking  their claims.  When the impugned letter,dated April 7,  1970  gave time tilltime till May  15, 1970, calling on any member  of the  service to point out any factual mistakes or errors  in the  application  of the principles enunciated in  the  said letter, it appears all the petitioners made  representations in  which  they asserted that the integrate on  of  the  two Services  having taken place on August 15, 1959, and not  on April  1,  1959, they were entitled to be  included  in  the initial  constitution  of the combined Service  and  on  the application of the principles enunciated in the, said letter no distinction could be made between in the direct  recruits appointed  to the Indian Customs Service Class-I a  and  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

Central  Excise, Service Class I in the years 1955  to  1958 and  the direct recruits appointed to the said two  Services in  the year 1959 In their representations  the  petitioners had  claimed  that  they be placed above  respondent  3  and requested that till this matter was decided persons from the combined  seniority  list below Serial No 73 should  not  be made,  but  in spite of this request, even before  the  date calling  for  representations expired,  some  Officers  were promoted an May 11, 1970, without considering their claims. The  first respondent in its counter affidavit  stated  that the  idea  of  having a separate Class  I  Service  for  the Central  Excise Department was mooted for the first time  in 1944,  )tit the final constitution of the.   Central  Excise Service  Class  I took place only with effect from  July  1, 1955;  that after the idea of constituting a Central  Excise Service  was mooted in 1944 the first respondent  says  that training  in  central  excise work  was  given  to  Officers recruited to the Indian Customs Service and 592 even  right from 1950 the notification issued by the  second respondent for the combined I. A. S. Examination stated that the direct recruitment was to the Indian Customs and  Excise Service  even though there was no such service in  existence upto  July 1, 1955 and that even after the formation of  the Service  with  effect  from  July  1,  1955,  and  upto  its subsequent  integration with the Indian Customs  Service  in 1959 the notification issued by the second respondent stated that  the recruitment was to the Indian Customs and  Central Excise Service Class I and not to the Indian Customs Service and the Central Excise Service separately, though the actual allocation  of the candidates between the two- Services  was made by the Department of Revenue.  It was also stated  that the  order constituting the Central Excise Service  Class  I with  effect  from  July  1,  1955,  provided  that   future vacancies  in the grade of Superintendent of Central  Excise Class  I  will  be  filled  up  by  direct  recruitment  and promotion  in  the  ratio of 1:1 and  that  when  the  final decision to merge the Indian Customs Service Class I and the Central  Excise Service Class I was taken by the  Government in  March  1959, an Official Committee was set  up  to  make recommendations  regarding  the determination  of  inter  se seniority in the merged service of the officers in  position in the two constituent Services at the time of  integration. As  the finalisation of the seniority list was  expected  to take some time it was felt desirable to freeze the  position of officers in the two departments as on a particular  point of time so that changes introduced thereafter in one Service did  not  affect  the members of the  other  Service  ,on  a lasting  and  irretrievable basis.   Accordingly  the  date, April  1, 1959, was chosen though the formal  resolution  to merge  the  two Services was published only  on  August  12, 1959.  The counter of the Union of India further stated that as  the  seniority principles  enunciated  by            the Government  in their letter of January 6, 1960 had raised  a controversy,  the  Government  referred the  matter  to  the second   respondent   under  Art.  320  (3)   (b)   of   the Constitution, and ultimately the letter of April 7, 1970 was issued  accepting  not only the principles  evolved  by  the second  respondent, but also the date April 1, 1959, as  the date on which the integration of Services were to come  into effect  as  previously indicated in the  first  respondent’s letter of January 6, 1960. An objection was sought to be taken on the ground that there was  an inordinate delay in the petitioners’ presenting  the writ petition after over ten years even though the letter of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

January.  6,  1960, stated that the decision  taken  by  the Government  was  final.   The  petitioners  countered   this objection  by  pointing  out, firstly, that  the  letter  of January  6, 1960 was addressed to the Heads  of  Departments who were asked to communicate the decision to those officers whose  names figured in the list and since  the  petitioners were  appointed  after April 1, 1959, their  names  did  not appear  and  the  decision was  not  communicated  to  them, secondly, the letter of April 7, 1970, itself clearly stated that   everything  done  earlier  by  the   Government   was provisional.  It is, therefore, urged that as right from the beginning  objections  had  been  taken  by  the,    Service Associations  regarding  the principles  enunciated  in  the letter  of  January 6, 1960, and the Government  itself  had called 593 upon  the  Service Associations by its letter  of  June  20, 1961,  to enunciate the principles they considered  fair  in fixing the seniority, in compliance to which objections were being  urged,  the  petitioners  cannot  be  held  to   have committed  any  leaches.   Taking  into  consideration   the respective  contentions it appears to us that having  regard to the stand taken by the Government and the admissions made by it in the letters subsequently written that the proposals set out in the letter of January 6, 1960, were to be treated as provisional, the petitioners could not have come to  this Court  earlier  till a final decision was made on  April  7, 1970.    Accordingly  the  preliminary  objection   is   not sustainable. The  petitioners’  only  objection to the  decision  of  the Government conveyed in the letter of April 7, 1970, is  that the date, April 1, 1959, on which the two Services were said to  have been merged for the purposes of inter se  seniority was  an artificial date chosen arbitrarily and is sought  to be given effect to without any legal authority.  It  appears to us that this contention must be upheld.  The Presidential Resolution  of  August 12, 1959, which draws  its  authority from  the proviso to Art. 309 of the Constitution  is  clear and categorical in that it not only shows that the  question of integration of the Central Excise Service Class I and the Indian  Customs Service Class I which was the older  of  the two  Services was under consideration of the  Government  of India  for quite some time, but that "The President has  now been  pleased  to  decide that the two  services  should  be constituted into a single service with effect from the  15th August,  1959."  It  also  states  that  "The  Service  will initially  be formed from amongst all the existing  Class  I officers  of  the Customs and Central Excise  Services,  who will henceforth be borne on a single combined cadre for  all purposes."  (Emphasis  ours).   It is not  denied  that  the petitioners  were  members  of the  respective  services  on August  15,  1959, and consequently the  rules  relating  to seniority should be applicable to them in the same way as to those  recruited  in 1958.  The subsequent decision  of  the Government  conveyed in the letter of April 7, 1970, has  no legal validity, as it was not purported to have been made in the  name or with the authority of the President  of  India, nor  does  it  in any way seek  to  amend  the  Presidential Resolution of August 12, 1959, nor does it purport to change the date on and from which the integration was given  effect to.   On  the contrary, three days  after  the  Presidential Resolution of August 12, 1959, intimating that the President had decided that the two Services should be constituted into a single Service with effect from August 15, 1959, and  from henceforth, namely on and from August 15, 1959, all  persons

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

borne  on the respective Services will be borne on a  single combined  cadre, the Deputy Secretary to the  Government  of India,  Ministry of Finance, wrote to the President  of  all India Central Excise Officers Association and the President, Indian Customs Service Association, informing them that  the Presidential Resolution was published in the Gazette.   This letter further explained the import of that Resolution  thus :               "Since  it is the Government’s intention  that               so  far  as  possible,  the  existing   normal               expectations  of promotion of Officers in  the               cadre  posts of the two Departments should  be               secured,   it  is  proposed  to  safeguard   a               suitable number of cadre               594               posts  of  the two Departments, based  on  the               strength  of such posts on a  particular.date,               to  the  officers of such  Department,  for  a               limited period.  This Particular date. will be               the  beginning of the current financial  year,               viz.   1st  April,  1959.   What   is.   being               safeguarded   is  the  number  of   posts   of               particular status irrespective of whether they               are actually hold by the officers of a Depart-               ment  in that Department or  elsewhere.   This               safeguard  will  be  necessary  only  in   the               supervisory posts of the Deputy Collectors and               above  of each Department.  Posts  arising  in               the  two  Departments after 1st  April,  1959,               deputation posts and other ex-cadre posts  can               obviously not be the subject of any safeguard.               With the merger, the two services will  become               one and officers of the combined service, as a               whole,  will  be  co-sharers  of  the   future               Prospects  and  vicissitudes of  the  combined               service." Even in this letter, 1st April, 1959, has not been shown  as the  date on which the two Services were to  be  integrated, but  only  that it was proposed to  safeguard  a  particular number  of  posts in the Department on  a  particular  date, namely,  1st  April,  1959.  No mention has  been  made,  in supersession of the Presidential Resolution, that 1st April, 1959  will be the date of the merger of the  two,  Services. In any case it is clear that the Government has no authority to  override the Presidential Resolution by  any  subsequent decision  which  lacks legal authority and is  violative  of Art. 14 of the Constitution of India. In  this  view.  the petition is allowed  with  costs.   The Government  is directed to give effect to  the  Presidential Resolution of August 12, 1959, in respect of integration  of the  two  Services from August 15, 1959, and  to  apply  the principles  of seniority to the petitioners as if they  were members  of  the respective Services which  were  integrated after their appointment in July 1959. P.B.R. Petition allowed’ 595