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1972 Supreme(Pat) 94
HIGH COURT OF PATNA
Shambhu Prasad Singh & Shiveshwar Prasad Sinha, JJ.
GAYA PRASAD PANDEY & ANOTHER - Petitioners
VERSUS
THE STATE OF BIHAR & OTHERS - Respondents
C. W. J. C. No. 96 of 1972 and M. J. C. No.1 of 1972
Decided On : 18th May, 1972
Messrs Basudeva Prasad, K. N. Keshav and Shyam Kishore Prasad No.2 for the Petitioners; Messrs Lal Narain Sinha, Rana Pratap Singh No.2, Sarojendu Mukherji and Nagendra Prasad Singh and Shreenath Singh for the State in C.W. J. C. No. 96 of 1972 and Mr. K. P. Verma (Govt. Advocate) for the State in M. J. C. No. 1 of 1962.
Retrospective amendment of service rules affecting seniority of government servants can be violative of Article 16 of the Constitution of India if it discriminates between employees and affects their civil rights, such as the right to be considered for future promotion based on seniority.
Headnote:
BIHAR FINANCE SERVICE RULES - Amendment of Rule 39 - Retrospective operation - Violation of Article 16 of the Constitution of India - Seniority of officers appointed to the service - Determination - Legality.
Fact of the Case:
The petitioners, directly recruited to and members of the junior branch of the Bihar Finance Service, challenged the amendment of Rule 39 of the Bihar Finance Service Rules, 1953, which retrospectively affected their seniority vis-à-vis respondents 2 to 19, who were appointed on promotion.
Finding of the Court:
The Court held that the impugned amendment of Rule 39, insofar as it affected the petitioners' right of being considered before respondents 2 to 19 for future promotion, was discriminative in nature and thus violative of Article 16 of the Constitution of India.
Issues: 1. Whether the amendment of Rule 39 of the Bihar Finance Service Rules, 1953, was valid and constitutional? 2. Whether the retrospective operation of the amended rule violated Article 16 of the Constitution of India?
Ratio Decidendi: 1. The Governor of a State has legislative competence and can make rules regulating the recruitment and conditions of service of employees of the State, including retrospective rules, under Article 309 of the Constitution of India. 2. The retrospective amendment of Rule 39 violated Article 16 of the Constitution of India as it affected the civil rights of the petitioners in respect of future promotion by conferring seniority on respondents 2 to 19, who were junior to the petitioners.
Final Decision: The Court allowed the writ petition and quashed the impugned amendment of Rule 39 to the extent it affected the seniority of the petitioners retrospectively. Respondent no. 1 was directed to obey the mandate issued to it in Civil Writ Jurisdiction Case No. 4 of 1968.
Shambhu Prasad Singh, J.
The petitioners who were directly recruited to and are members of the junior branch of the Bihar Finance Service (hereinafter I called as 'the Service') have filed this application for quashing Annexure 6 to the petition whereby on 30th of December, 1971, the State of Bihar, respondent no.1, amended Rules 6 and 39 of the Bihar Finance Service Rules, 1953 (hereinafter referred to as 'the Rules') and added a new Rule 39A to the Rules. Respondent nos. 2 to 19 are also members of the junior branch of the service, but they were appointed on promotion. As it appeared from the arguments advanced by learned counsel for the parties, the real contest was as to the amendment of Rule 39 only. Before the amendment Rule 39 read as follows :
"39. Seniority-Seniority of officers appointed to the Service shall be determined in accordance with the date of their substantive appointment to the service;
Provided that if more than one officer is substantively appointed at the same time-
(i) to either branch of the service by direct recruitment, their seniority inter se shall be determined by the ORDER :of preference assigned to them by the Public Service Commission in the list of their recommendations;
(ii) to the Senior branch of the Service by promotion, their relative seniority shall be their ORDER :of seniority inter se in the Junior branch of the Service;
(iii) to the Junior branch of the Service by promotion, their seniority, inter se shall be determined by the ORDER :of preference assigned to them by the Public Service Commission, except that where more than one officer is promoted from the same service or cadre, their seniority shall be determined by the ORDER :of their position inter se in the service or cadre from which they are promoted; and
(iv) to either branch of the service both by direct recruitment and promotion, the officer promoted shall rank senior to the officer recruited direct."
The rule after amendment reads as follows:
“39. Seniority-Notwithstanding anything to the contrary contained in any law or contract or any JUDGMENT :, decree or ORDER :of any court, tribunal or authority, seniority of the officer appointed to either branch of the service shall be determined with reference to the year of vacancies declared under Rule 6, against which they are appointed on probation. If more than one officer is appointed against vacancy of a particular year-
(i) to either branch of the service by direct recruitment, their seniority inter se shall be fixed according to the ORDER :of merit assigned by the Public Service Commission;
(ii) to either branch of the service by promotion and by direct recruitment, the officer promoted shall take precedence over the officer recruited direct;
(iii) to the Senior branch of the service by promotion, their inter se seniority shall be the same which they held in the junior branch of the service;
(iv) to the Junior branch of the service by promotion from different gazetted services and non-gazetted ranks, their seniority inter se shall be determined by the ORDER :of preference assigned to them by the Public Service Commission, except that where more than one officer is promoted from the same service or cadre, their seniority shall be determined by the ORDER :of their position inter se in the service or cadre from which they were promoted;
Provided that in the case where officers are promoted both from gazetted and non-gazetted posts, officers promoted from gazetted post shall rank senior to those promoted from non-gazetted posts."
2. The petitioners were appointed on probation to the junior branch of service by the notification dated 2nd of February, 1957 (Annexure 1 to the petition) on the basis of a competitive examination held in the month of December, 1955. Respondents 2 to 7 were temporarily appointed to the junior branch of the Service by notification dated 12th of April, 1956 (Annexure 3 to the petition). The petitioners were confirmed in the junior branch of the Service
