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1968 Supreme(P&H) 25
PUNJAB & HARYANA HIGH COURT
Mehar Singh and R.S.Narula JJ.
Suresh Kumar
Versus
Union Of India
Letter Patent Appeal No. 181 of 1966,
Decided On : MARCH 6, 1968
The government does not have the power to make changes in the service conditions of its personnel with retrospective effect by mere executive instructions.
Headnote:
LETTERS PATENT APPEAL - SENIORITY - ACT SECTION LIST - SUMMARY
Fact of the Case:
The appellants, Suresh Kumar and Tara Chand Jain, were appointed as Lower Division Clerks in the Government of India in 1950 and 1951 respectively. In 1949, the Ministry of Home Affairs issued a circular directing that the seniority of all temporary and permanent Lower Division Clerks be arranged in a single list based on the length of continuous service. In 1959, the Ministry of Home Affairs issued another circular stating that the seniority of all persons appointed to the various Central Services after the date of the circular should be determined in accordance with the general principles annexed to the circular. The general principles provided that persons appointed before December 22, 1959, would retain their relative seniority and would be senior to all others in that grade, while persons appointed after that date would be ranked junior to persons who were officiating in that grade.
Finding of the Court:
The court held that the 1959 circular did not apply to the appellants because they had been appointed before December 22, 1959. The court also held that the 1949 circular continued to be in force for the appellants and that their seniority could not be affected by the 1959 circular. The court further held that the government did not have the power to make changes in the service conditions of its personnel with retrospective effect by mere executive instructions.
Issues: Whether the 1959 circular applied to the appellants.
Ratio Decidendi: The court held that the 1959 circular did not apply to the appellants because they had been appointed before December 22, 1959. The court also held that the 1949 circular continued to be in force for the appellants and that their seniority could not be affected by the 1959 circular. The court further held that the government did not have the power to make changes in the service conditions of its personnel with retrospective effect by mere executive instructions.
Final Decision: The court allowed the appeal, set aside the order of the learned Single Judge, and directed the respondents to prepare a revised seniority list restoring the appellants' original seniority.
Narula, J.
1. The relevant facts leading to the filing of this Letters Patent Appeal against the dismissal of the appellants writ petition by a learned Single Judge of this Court may first be noticed.
2. In pursuance of and in accordance with Paragraph 8 of instructions, dated June 22, 1949 (Annexure R-2) for the initial constitution of the Assistants Grade of the Central Secretariat Service, circular No. 30/49-R of the same date (Annexure A to the writ petition), was issued by the Ministry of Home Affairs, Government of India, New Delhi, to all the Ministries of the Government of India directing inter alia that the seniority of all temporary and permanent Lower Division Clerks in the Government of India and in the attached offices appointed or nominated after January, 1, 1944, shall be arranged in a single list and fixed on the basis of the length of continuous service of the incumbents concerned in the clerks grade. The other directions in the circular do not concern us for deciding this appeal.
3. Suresh Kumar appellant No. 1 and Tara Chand Jain appellant No. 2 were appointed Lower Division clerks on October 9, 1950, and November 26, 1951, respectively. They were in due course posted in the Central Government Medical Stores Depot, Karnal, under the administrative control of the Director General of Health Services New Delhi. Their names were brought in the common seniority list of Lower Division Clerks according to the circular, dated June 22, 1949 (hereinafter referred to as the 1949 Circular).
4. One O. P. Anand serving in the Medical Stores Depot, Karnal, appears to have represented against the fixation of his seniority according to mere length of service. On his representation having been forwarded to the Central Government, the following decision of the Directorate of Health Services was communicated in its memorandum, dated September 6, 1952 (Annexure C to the writ petition) for the information of Mr. Anand:-
Mr. O. P. Anand may please be informed that in accordance with the principle laid down by the Government of India that seniority in a grade should, as a general rule, be determined on the basis of length of continuous service in the grade or in an equivalent grade, it has been finally decided by this Directorate that a combined single seniority list should be maintained in respect of office clerks, store assistants and store clerks (who are drawing the same scale of pay from January 1, 1947) based on the length of continuous service in those grades. In this connection it may be stated that an identical scale for all these posts has been prescribed by the Government of India in consideration of the fact that their duties and responsibilities carry equal weight."
Respondents Nos. 4 to 13 were appointed as Lower Division Clerks on different dates between June, 1953 and November, 1959. Their seniority was fixed in terms of the 1949 circular far below that of the appellants. On a reference made by the Government Medical Stores Depot, Calcutta, regarding the confirmation of some minority community candidates in reserved posts and regarding the fixation of inter se seniority of minority and other communities employees, the New Delhi Directorate replied in its letter, dated October 15, 1959 (Annexure E to the writ petition) as under:-
"In services/grades in which seniority is fixed in accordance with the orders contained in the Government of India, Ministry of Home Affairs O. M. No. 30/44/48-Appts, dated June 22, 1949, only those persons who were appointed on a permanent or quasi-permanent basis before the 1st January, 1944, are to be treated as en bloc senior to others. Persons appointed on or after that date have to be grouped together, irrespective of any consideration whether they are permanent, quasi-permanent or temporary, and arranged the seniority list with reference to the total length of continuous service in the grade or in an equivalent grade. It would thus be clear that under the orders, dated June 22
