1996 Supreme(SC) 902

1998(5) Supreme 188
Supreme Court of India
A.M. Ahmadi, C.J.I., Madan Mohan Punchhi and K. Ramaswamy, JJ.
Dr. Ram Raj Ram -Appellant
versus
State of Bihar & Ors. -Respondents
Civil Appeal No. 1894 of 1991
With
Civil Appeal No. 1895 of 1991
Both Decided on 2-5-1996

Headnote:Service Law-Bihar and Orissa Veterinary Service Class-I Rules, 1935-Rules 14 to 17-Animal Husbandry Department-Rules of 1935 are only statutory Rules applicable in the Department-Date of entry into the ser­vice in substantive capacity is deter­mining factor for senior­ity irres­pective of scale of pay-Creation of Special Service in violation of Rules to accomodate a candidate at an advantageous position-Unfair act and is abuse of power-No basis for already existing cadre being treated as subsidiary or secondary to a newly created cadre termed basic cadre-No relief to be granted to appellant.

       Held 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-I officers and then claim senior for Dr. Ram on two grounds, namely, he was on the date of his appointment in a 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 Dr. 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. (Para 10)

       Further held, 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-I (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 basic cadre coming on the scene to cast shadow thereon by an executive fiat. And yet notification dated 3.12.1987, 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. (Para 11)