1994 Supreme(SC) 970

SUPREME COURT OF INDIA
Kuldip Singh, B.L. Hansaria and S.B. Majmudar, JJ.
Civil Appeal Nos. 3670-71 of 1988
Decided On: 29.09.1994
Uday Pratap Singh and Ors. Appellants
Vs.
State of Bihar and Ors. Respondent
AND
D.N. Sinha and Ors. Appellants
Vs.
State of Bihar and Ors. Respondent
Counsel for the Parties
For Appellant/Petitioner/Plaintiff: Gobinda Mukhoty, Senior Adv. and K.N. Rai, Adv.
For Respondents/Defendant: P.P. Rao, Senior Adv., L.R. Singh, Sangeeta Agrawal, S.K. Bhattacharya, U.S. Prasad, R.K. Khanna and R.P. Singh, Advs.

Headnote:

Bihar Finance Service Rules, 1953 - Rules 3,5 - Constitution Of India,1950 - Articles 14,16 and 309 - Appointment of concerned incumbent - Respondents in these appeals belong to Bihar Finance Service - Bihar Service was originally consisting of two branches namely Senior Branch and Junior Branch - As per Bihar Finance Service Rules framed under Article 309 of Constitution of India seniority was to be reckoned from date of substantive appointment of concerned incumbent - Appellants herein were appointed to Junior Branch while original writ petitioners were appointed as direct recruits in senior Branch - So far as original writ petitioners respondents herein are concerned some of them were directly recruited and appointed in Senior Branch and rest of original writ petitioners were appointed as direct recruits - State Government of Bihar decided to merge different cadres existing in Civil Services Finance Service and Education Service - Accordingly by a Government Resolution issued by Finance Department State Government decided that both Senior and Junior Branches of Bihar Finance Service be merged - Merger of Junior and Senior Branches was to be effective from - It is pertinent to note that prior to aforesaid decision regarding merger of two branches Bihar Finance Service Rules which were statutory rules were framed under proviso to Article 309 of Constitution of India - Rule 3 indicated that members of Senior and Junior Branches of Bihar Finance Service shall have gazetted rank and as per Rule 5 of said rules one of sources of recruitment to Senior Branch was by promotion according to Rules in Part -IV from Junior Branch - Prior to Government Resolution of a person belonging to Junior Branch in Bihar Finance Service could aspire to reach senior Branch by way of promotion - So far as appellants are concerned by Government Notification one hundred and two officers belonging to Junior Cadre of Bihar Finance Service were appointed in Senior Branch with effect from - That was done as a result of aforesaid merger of Senior Branch and Junior Branch of Bihar Finance Service - Appellants are covered by said Government Notification - As per said Government Notification they were appointed though order appointing them was passed - They claimed seniority in merged cadre of erstwhile Junior and senior Branches - They contended that as original writ petitioners respondent herein were directly recruited to erstwhile Senior Branch respectively they have to be treated as juniors to appellants who got appointed retrospectively - Claim of appellants was tentatively accepted by State of Bihar and a provisional gradation list was issued by State of Bihar placing appellants higher to respondents in list - Objections to said provisional gradation list were also invited- Contesting respondents direct recruits of Combined Competitive Examination filed aforesaid writ petition in Patna High Court for quashing provisional gradation list - It may be mentioned at this stage that earlier Patna High Court in Writ Petitions in case of v. State decided had that on account of merger of Junior Branch and Senior Branch in Bihar Finance Service with effect from seniority of these mergees had to be reckoned from date of merger of these branches vis-a-vis direct recruits to Senior Branch who had to reckon their seniority from dates of their appointments - Against this decision a Special Leave Petition was unsuccessfully carried to this Court and same was dismissed by a non-speaking order - It is thereafter that aforesaid impugned provisional gradation list was prepared by State of Bihar came to be challenged in Writ Petition as aforesaid by direct recruits - A Division Bench of Patna High Court after hearing writ petitioners and contesting respondents came to conclusion that as direct recruits were appointed to Senior Branch of Bihar Finance Service respectively while appellants were appointed to merged cadre and as their appointments could not be made retrospectively with effect from nor could merger of two branches of two cadres be effected retrospectively from seniority of respondents had to be reckoned from respectively while seniority of appellants had to be reckoned from being date on which they were appointed to merged combined cadre of Senior Branch of Bihar Finance Service - Accordingly writ petition was allowed - Placing of Respondents who were in erstwhile Junior Branch above respondents in gradation list was to invalid and violative of Articles 14 and 16 of Constitution - Respondent-State of Bihar was directed to make necessary corrections in gradation list in light of Courts Judgment - As noted earlier it is this judgment of Division Bench of Patna High Court that is impugned in these two appeals - As both these appeals arise from same judgment counsel appearing in both these appeals for respective contesting parties addressed common arguments and accordingly these two appeals are also being disposed of by common judgment - Held, By a catena of decisions of this Court it is now well-settled that by an executive order statutory rules cannot be whittled down nor can any retrospective effect be given to such executive order so as to destroy any right which become crystallized - In this connection it is profitable to refer a decision of this Court hi and Ors v State of Haryana and Ors wherein it is that rules framed under Article 309 of Constitution cannot affect or impair vested rights unless it is specifically so provided in concerned statutory rules - It is obvious that an executive direction stands even on a much weaker footing - It is true as laid down in etc - Union of India and Ors that effect of upgradation of a post is to make incumbent occupy upgraded post with all logical benefits flowing therefrom and can be treated as promoted to post - Still it cannot be gainsaid that no retrospective effect could be given to any merger of erstwhile lower branch into higher branch in cadre so as to effect vested rights of incumbents already occupying posts in erstwhile higher branch of cadre - In present case it has to be kept in view that contesting respondents were directly recruited and appointed in Senior Branch respectively while appellants were appointed in merged cadre - It is true their order of appointment purports to give them appointment retrospectively from but such effect cannot be given so as to destroy seniority rights of writ petitioners respondents herein who were inducted as direct recruits in Senior Branch prior to - Earlier decision of Patna High Court in case of case was rightly distinguished by Division Bench in present case as in case direct recruits were inducted much after when mergees got their Junior Branchs appointments upgraded to combined merged cadre and became a part and parcel of Senior Branch earlier to these direct recruits while in present case all contesting respondents had entered Senior Branch much prior as seen above - Therefore they were entitled to be treated as seniors to appellants - It is true that against earlier decision of High Court Special Leave Petition was rejected by this Court but as it was not a speaking order it cannot be said that this Court had put its imprimatur on observations found in paragraph of judgment in Jhas case which we have referred to earlier - As in decision of this Court in Indian Oil Corporation v State of Bihar when Special Leave Petition is summarily rejected it occasions no merger of order lower court in order of Supreme Court and even such an order can be challenged in High Court - It is true that even review petition filed against decision in case was rejected by High Court - But that is neither here nor there - It is not possible to agree with observations of High Court in case made in paragraph that on account of merger erstwhile incumbents in Junior Branch became substantively appointed to merged cadre with effect from - That observation runs counter to well-established legal position that by executive fiat no such retrospective appointments can be given to any incumbent so as to destroy seniority of employees who had entered cadre much prior to their entry - Reliance placed on decision of this Court in Director Lift Irrigation Corporation Ltd and Ors and Ors for submitting that a policy decision to merge two branches of a cadre cannot be subjected to a judicial review is also of no avail to counsel for appellants for simple reason that in that case Court was not concerned with consideration about any retrospective effect of such a policy decision - Similarly decision of this Court in and Ors v State of Bihar and which laid down that in absence of any statutory rules seniority can be reckoned in common cadre considering all incumbents also cannot be of any avail to appellants as at relevant time when respondents entered cadre as direct recruits erstwhile rules were already holding field and appellants were not on scene - On other hand pursuant to merger of both these branches fresh rules were required to be framed under Article 309 of Constitution even after and which were not framed till appellants entered merged cadre - Counsel for appellants lastly placed reliance on decision of this Court in Union of India and Ors for submitting that there is no fundamental right of anyone to a particular seniority - This decision also cannot be of any assistance to appellants as in present case as rightly found by High Court if appellants who entered merged cadre of Senior Branch only are to be treated as senior to respondents who had entered Senior Branch as direct recruits prior thereto respondents would clearly get their constitutional rights guaranteed under Articles 14 and 16 violated - Appeals Dismissed