1. Challenge to the constitutionality of an order computing seniority for amalgamated clerical services — discrimination between former extra temporary and temporary establishment personnel. (Para 1 , 4 , 5 , 6 , 7 , 11 )
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1962 Supreme(SC) 151
SUPREME COURT OF INDIA
11th April, 1962
B.P. SINHA, C.J.I., K. SUBBA RAO, N. RAJAGOPALA AYYANGAR, J.R. MUDHOLKAR AND T.L. VENKATARAMA AYYAR, JJ.
Kunj Behari Lal Agarwal, Petitioner
Versus
Union of India, Respondent.
1. Khem Singh 2. Jagatpati Dass and 3. Gurbaksh Singh, Interveners.
Petition No. 264 of 1961 with petition for Special Leave to Appeal (Civil) No. 786 of 1961.
Advocates appeared
Mr. A.V. Viswanatha Sastri Sr. Advocate (M. R. Gopalakrishinan, Advocate with him) for Petitioner & Intervener No. 3; Mr. C.K Daphtary, Solicitor General of India (M/s. R. Ganpathy Iyer and P. D. Menon, Advocates, with him), for Respondent; Mr. C.K. Daphtary, Solicitor General of India (Mr. Naunit Lal, Advocate with him), for Intervener No. 1; Mr. A. S. R. Chari, Sr. Advocate (Mr. K. R. Chaudhuri Advocate with him) for Intervener No.2.
Important Points
Constitutional guarantees under Articles 14 and 16(1) cannot challenge pre-constitutional orders that settled service rights. Seniority for ad hoc employees integrated into a regular establishment is reckoned from the date of regularization unless an express provision provides for a different basis.
Subject
Constitutional Law - Service Law
Act Referred
Headnote
(A) Constitution of India - Articles 14 and 16(1) - Seniority in Government Service - Amalgamation of separate cadres - Computation of seniority - Whether granting only partial credit for previous ad hoc service when integrated into a regular establishment violates the right to equality and equal opportunity in employment - If the employees were originally recruited on different bases, with different conditions of service, and the ad hoc group was only regularized on a specific date, seniority in the amalgamated regular establishment is reckoned from the date of regularization unless expressly provided otherwise (Paras 11, 21).
(B) Constitution of India - Retrospective Application - Rights settled prior to the commencement of the Constitution - Constitutional guarantees under Part III cannot be invoked to challenge the legality of government orders passed before the Constitution if the rights of the employees had already become settled by those orders (Para 16).
(C) Service Law - Seniority - When two parallel services are merged, the absence of an express provision for a common basis of seniority implies that those brought from an ad hoc or temporary status into a regular establishment start their seniority from the date of such regularization (Paras 21 and 22).
Facts of the case:
Clerks recruited as ad hoc employees were later brought into a regular establishment along with another group of clerks who had been recruited against sanctioned posts. A dispute arose regarding the computation of seniority in the amalgamated roll. An order was passed providing that only half of the continuous service rendered by the ad hoc clerks prior to their regularization date would count toward their seniority. The petitioner challenged this order, contending that since both groups performed identical duties and possessed similar qualifications, the failure to count the full length of service was discriminatory and violated Articles 14 and 16(1) of the Constitution.
Findings of Court:
The court found that the two groups of clerks had different origins, recruitment bases, and initial conditions of service. An earlier attempt to amalgamate the rolls had been formally cancelled. The ad hoc employees only became part of the regular establishment from a specific date in 1949. Therefore, in the absence of an express rule to the contrary, their seniority in the regular establishment began from that date. The subsequent order granting half-credit for previous service was a beneficial modification and not a deprivation of a pre-existing right.
Issues: Whether the government order computing seniority by granting only partial credit for previous ad hoc service upon regularization was discriminatory and violative of the fundamental rights guaranteed under Articles 14 and 16(1) of the Constitution.
Ratio Decidendi: The Constitution is not retrospective; thus, settled pre-constitutional service arrangements cannot be challenged using Part III guarantees. Since the ad hoc employees were not part of the regular establishment until their regularization date, they could not claim seniority from their initial date of entry into ad hoc service unless the government specifically provided for it. The regularization date serves as the starting point for seniority in the common roll.
Result: Petition dismissed.
(B) Constitution of India - Retrospective Application - Rights settled prior to the commencement of the Constitution - Constitutional guarantees under Part III cannot be invoked to challenge the legality of government orders passed before the Constitution if the rights of the employees had already become settled by those orders (Para 16).
(C) Service Law - Seniority - When two parallel services are merged, the absence of an express provision for a common basis of seniority implies that those brought from an ad hoc or temporary status into a regular establishment start their seniority from the date of such regularization (Paras 21 and 22).
Facts of the case:
Clerks recruited as ad hoc employees were later brought into a regular establishment along with another group of clerks who had been recruited against sanctioned posts. A dispute arose regarding the computation of seniority in the amalgamated roll. An order was passed providing that only half of the continuous service rendered by the ad hoc clerks prior to their regularization date would count toward their seniority. The petitioner challenged this order, contending that since both groups performed identical duties and possessed similar qualifications, the failure to count the full length of service was discriminatory and violated Articles 14 and 16(1) of the Constitution.
Findings of Court:
The court found that the two groups of clerks had different origins, recruitment bases, and initial conditions of service. An earlier attempt to amalgamate the rolls had been formally cancelled. The ad hoc employees only became part of the regular establishment from a specific date in 1949. Therefore, in the absence of an express rule to the contrary, their seniority in the regular establishment began from that date. The subsequent order granting half-credit for previous service was a beneficial modification and not a deprivation of a pre-existing right.
Issues: Whether the government order computing seniority by granting only partial credit for previous ad hoc service upon regularization was discriminatory and violative of the fundamental rights guaranteed under Articles 14 and 16(1) of the Constitution.
Ratio Decidendi: The Constitution is not retrospective; thus, settled pre-constitutional service arrangements cannot be challenged using Part III guarantees. Since the ad hoc employees were not part of the regular establishment until their regularization date, they could not claim seniority from their initial date of entry into ad hoc service unless the government specifically provided for it. The regularization date serves as the starting point for seniority in the common roll.
Result: Petition dismissed.
Legal Category Hierarchy
Advocates:
A.S.R.CHARI, A.V.VISHWANATHA SASTRI, C.K.DAFTARY, K.R.CHAUDHARY, NAUNIT LAL, P.D.MENON, R.Ganapathy Iyer, R.GOPAL KRISHNAN
A.S.R.CHARI, A.V.VISHWANATHA SASTRI, C.K.DAFTARY, K.R.CHAUDHARY, NAUNIT LAL, P.D.MENON, R.Ganapathy Iyer, R.GOPAL KRISHNAN
Table of Contents
2. Differential seniority computation for amalgamated services violates equal protection and equal opportunity for employment under Articles 14 and 16(1) of the Constitution. (Para 12 , 13 , 14 , 15 )
3. The services were originally distinct with different recruitment bases; the amalgamation did not automatically create a common seniority roll based on original entry dates. (Para 16 , 17 , 18 , 19 , 20 , 21 , 22 )
4. Constitutional guarantees under Part III are not retrospective and cannot be invoked to challenge the legality of service conditions settled before the Constitution's commencement. (Para 16 , 23 )
5. Petition dismissed — the order computing seniority was held not to violate constitutional guarantees. (Para 23 )
6. Can constitutional guarantees under Part III be used to challenge the legality of government orders passed before the Constitution came into force?
No, the Constitution is not retrospective. If rights were settled by government orders before January 26, 1950, the constitutional guarantees under Part III cannot be invoked to challenge the legality of those prior orders. (Para 16 )
7. In the absence of express provisions, does the amalgamation of two distinct services into one regular establishment automatically imply a common seniority roll based on original entry dates?
Not necessarily. If services had different origins, recruitment bases, and conditions, and no express rule for inter se seniority was provided during amalgamation, seniority in the unified service is reckoned from the date of amalgamation. (Para 21 )
8. How should a subsequent clarification of a government order be treated in determining service conditions?
A clarification issued to resolve ambiguities in the interpretation of an order should be deemed part and parcel of the original order and read in conjunction with it. (Para 22 )
Judgment
AYYANGAR, J. : The question raised in Writ Petition No. 264 of 1961 relates to the constitutionality of an order passed on April 20, 1955 by the Ministry of Defence by which, in modification of certain orders passed previously thereto, certain rules were laid down for the computation of the seniority of Clerks falling within the category of Extra Temporary Establishment Service. The petitioner was employed by the Ministry of Defence (Army Ordnance Corps) on February 6, 1942 as an Extra Temporary Establishment Clerk. The nature of this service and its history are the matters which arise for consideration in the petition. It is the case of the petitioner that by reason of certain orders of Government which would be referred to in due course, there was an amalgamation of the service known as the non-industrial staff in the Extra Temporary Establishment with those in another parallel service known as the Temporary Establishment and that as a result seniority in both these services had to be reckoned on the same basis, viz, the date when any employee entered service. The Union Government, however, it is alleged, illegally discriminated against the Clerical personnel which were originally known as the Extra Temporary Establishment of which the petitioner was formerly a member by the order now impugned, with the consequence that persons much junior to him have superseded him and, in fact, 610 Clerks who belonged to the former Temporary Establishment had thus gain seniority over him. He has accordingly filed this petition impugning the constitutional validity of this order of Government and for a direction that his seniority be computed without reference to this order.
2. It will thus be seen that though the petitioner seeks relief for himself, the points involved in the Petition affect the entire personnel of the Extra Temporary Establishment who would be governed by the impugned order and these are said to number nearly 6,000. It is only necessary to add that a petition for intervention seeking to support the petitioner has been allowed and we have heard Mr, Chari on behalf of the intervener. The number of employees who would be adversely affected if the impugned order was set aside is also stated to be considerable-variously estimated from 600 to one thousand and one of this group has also intervened to resist the petition. We are stating these matters for pointing out that the question raised in the petition and its result would affect a very large number of employees of Government.
3. To understand the grievance of the petitioner it is necessary to set out in detail the history of the Extra Temporary Establishment Clerks in the Defence Services.
4. As early as 1925 Temporary Clerks came to be recruited in the Defence Establishment of the Army Ordnance Corps but the temporary hands were recruited as against sanctioned posts. The control of this service was central and they were borne on the records of the A.O.C. (Army Ordnance Corps) records at Jubbalpore (now transferred to Secunderabad). This state of affairs continued till about 1933 when a need was felt for recruiting a much larger establishment including Clerks than could be accommodated in the sanctioned posts. Special provision was made for enabling this additional recruitment to be effected by making rules under the Financial Regulations of India (referred to generally as FRI) by which this special recruitment was to be effected. Personnel so recruited were known as the Extra Temporary Establishment. In regard to the Service of which the petitioner was a member, the concerned clerical personnel could be recruited in the Ordnance factories under FRI Part 1, Para 25 of 1933 on a pay not exceeding Rs. 250/- p.m. and for a period not exceeding one year. As regards them there was no central office where their records were maintained as the case of the Temporary Establishment, but their records were maintained unit wise- in the office of the Director who recruited them. All
