Bishan Chand & Ors Vs. Sarabjit
Singh & Ors [1974] INSC 158 (27 August 1974)
RAY, A.N. (CJ) RAY, A.N. (CJ) MATHEW, KUTTYIL
KURIEN
CITATION: 1975 AIR 73 1975 SCR (1) 914 1975
SCC (3) 178
ACT:
Punjab Co-operative Subordinate Service
Rules, 1936, Rules 5, 6 and 7--Passing of departmental examination basis for
fixation of seniority--Reorganisation of Punjab State--Variation of condition
of service, if has the approval of the Central Govt. as required under sec.
115(7) of States Reorganisation Act.
HEADNOTE:
The appellants belonged to Pepsi% Service. On
20th October, 1956 they held been promoted from the position of SubInspectors
to Inspectors. On 1 Nov, 1956 there was the reorganisation of the State of
Punjab. Pepsu became merged in Punjab. The appellants became integrated with
other Inspectors working in the State of Punjab. Under the Punjab Co-operative
Subordinate Service Rules, 1936, seniority is dependent on the passing of
departmental examination. All the respondents who were shown senior to the
appellants in the gradation list dated 11 March, 1966, had passed their
departmental examination before the appellants passed their examination. The
respondents were all confirmed earlier than the appellants. The appellants
passed the departmental examination after the respondents had done so.
Therefore, the appellants were treated as juniors to the respondents.
The appellants contended that the conditions
of service have been varied to their disadvantage without the previous approval
of the Central Govt. as required under sec. 115(7) of the States Reorganisation
Act.
Rejecting the appeal,
HELD : It follows from paragraphs 2 3 and 6
of the memorandum of the Central Govt. dated 11 May, 1957 that as far as
departmental examination is concerned the Central Govt. told the State
Governments that they might, if they so desired change the conditions of
service and for this purpose they might assume the previous approval of the
Central Govt. as required by the proviso to sec. 115(7) of the States
Reorganisation Act. This Court has held that this memorandum of Central Govt.
amounted to previous approval within the meaning of sec. 115(7) of the States
Reorganisation Act. [917 B-D] N. Raghavendra Rao v. Deputy Commissioner South
Kanara Mangalore, (1964)7 S.C.R. 549 and Mohammad Shujat Ali & Ors.
v. Union of India & Ors. [1975] I. C. R.
449 relied on.
The condition of service in regard to passing
of departmental examination for the purpose of promotion is, therefore. fully
clothed with the previous approval of the Central Govt. The appellants also
appeared in the examination. They availed of the same method of promotion.
They have suffered no prejudice because they
passed the departmental examination later than the respondents. [917 F]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1452 of 1973.
Appeal by Special Leave from the judgment
& Order dated the 8th September 1971 of the Punjab & Haryana High Court
in L.P. A. No. 689 of 1970.
V. C. Mahajan, M. R. Agnihotri and Urmila
Sirur, for the appellants;
R. K. Garg, S. C. Agarwal, S. S. Bhatnagar
and V. J.
Francis, for respondents Nos. 1, 3, 5, 6, 7
& 17.
915 O.P. Sharma for R.N. Sachthey, or
respondent No. 11 T.V.S.N. Chari, for respondent (Davinder Bahadur).
The Judgment of the Court was delivered by.
RAY, C.J.-This appeal is by special leave
from the judgment dated 8 September', 1971 of the High Court of Punjab and
Haryana.
The principal question raised in this appeal
is whether the appellants are wrongly shown as junior to the respondents.
The respondents have been treated to be
senior to the appellants on the basis of the Punjab Co-operative Subordinate
Service Rules, 1936 hereinafter referred to as the 1936 Rules. Under the 1936
Rules seniority is dependent on the passing of departmental examination. The
appellants passed the departmental examination after the respondents had done
so. Therefore, the appellants are treated as junior to the respondents.
The appellants belonged to Pepsu Service. On
20 October, 1956, the appellants had been removed from the position of
Sub-Inspectors to Inspectors On 1 November, 1956 there was the reorganization
of the State of Punjab. Pepsu became merged in Punjab.. The appellants became
integrated with other Inspectors working in the State of Punjab.
On 1 March, 1957 the appellants were reverted
from the position of Inspector to Sub-Inspector. On 11 April, 1957 the
appellants were promoted again to the position of Inspector.
The appellants contend that the 1936 Rules
did not apply to Pepsu before the merger, and, therefore, the conditions of
service could not be varied to their disadvantage after the integration without
the previous approval of the Central Government as provided by section 11 5(7
of the States Reorganization Act. The appellants also contend that they have
lost one month and eleven days on account of reversion from the position of
Inspector to Sub-Inspector between 1 March, 1957 and 11 April, 1957.
The gradation list was published on 11 March.
1966. The seniority list was prepared on the basis of 1936 Rules.
Rule 5 of the 1936 Rules states that all
candidates for the post of Inspectors and Sub-Inspectors of Co-operative
industrial Societies shall undergo such training and shall pass such
examination as the Registrar may prescribe. Rule 6 of the 1936 Rules, inter
alia, states that the seniority of Inspector candidates recruited from
Sub-Inspectors of Cooperative Industrial Societies and Sub-Inspectors of the
Punjab Co-operative Union will first be determined by the date of passing the
departmental examination. If two or more candidates passed the examination on
the same date, seniority will be determined by the length of service as
Sub-Inspector. Rule 7 of the 1936 Rules states that the seniority of Inspectors
in the 4th grade will be determined by the date 916 of confirmation. In the third
and higher grades of Inspectors, seniority will be determined by the date of
confirmation in the respective grades.
On 1 November, 1956 the appellants as well as
the respondents were all officiating Inspectors. Some of the appellants passed
their departmental examination in January, 1959 and some in May, 1961. Some of
the respondents passed their departmental examination in February, 1957 and the
others in March, 1958. All the respondents who were shown senior to the
appellants in the gradation list dated 11 March, 1966 had passed their
departmental examination before the appellants passed their examination.
The respondents were all confirmed earlier
than the appellants. The confirmation of the respondents took place before
1964. In the High Court it was conceded by the appellants that the respondents
had been confirmed earlier than the appellants. The High Court found that the
seniority list was prepared on this basis. in the case of confirmed Inspectors
the date of confirmation gives the seniority. In the case of Inspectors who
were not confirmed the date of passing the departmental examination was taken
to be the basis of seniority. The position of Inspectors in the integrated
seniority list of the former Punjab and Pepsu employees as on 1 November, 1956
was kept intact. In the case of promoted Inspectors selected in the same batch
seniority on the basis of the seniority position as SubInspectors was fixed.
All the respondents who were shown senior to the appellants passed their
departmental examination long before the appellants did.
The contention of the appellants that
conditions of service have been varied to their disadvantage without the
previous approval of the Central Government is utterly unsound.
The Central Government on 11 May, 1957
addressed a memorandum No. S.O. SRDI-I-ARM-57 to all State Governments.
Paragraph 2 of the memorandum states that the
question of protection to be afforded in the matter of various service
conditions to personnel affected by reorganisation was discussed with the State
representatives at conferences held with them. After careful consideration of
the views expressed at these conferences, the Central Government had decided
that the conditions of service in regard to substantive pay of permanent and
temporary employees, special pay, leave rules, pension, provident fund and
dearness allowance applicable to personnel affected by the reorganisation
immediately prior to the appointed day should be protected. But so far as
conditions of service in regard to travelling allowances, discipline, control,
classification, appeal, conduct, probation and departmental promotion were
concerned it would not be appropriate to provide any protection in the matter
of these conditions.
That is stated in paragraph 3 of the
memorandum. Paragraph 6 of the memorandum stated that in respect of conditions
of service as had been specifically dealt with in the proceeding paragraphs cf
the memorandum, it would be open to the State Governments to take action in
accordance with the decisions conveyed therein and so long as the State
Governments acted in conformity with those decisions, they 917 might assume the
Central Government approval in terms of the proviso to section 115(7) of the
States Reorganisation Act.
In all other cases involving condition of
service not specifically covered in the proceeding paragraphs, it would be
necessary for the State Government in terms of section 115(7) of the States
Reorganisation Act before any action was taken to vary the previous conditions
of service of an employee to his disadvantage.
It therefore follows from paragraphs 2, 3 and
6 of the aforesaid memorandum that as far as departmental promotion is
concerned the Central Government told the State Governments that they might, if
they so desired, change the conditions of service and for this purpose they
might assume the previous approval of the Central Government as required by the
proviso to section 115(7) of the States Reorganisation Act.
In N.A. Raghavendra Rao v. Deputy
Commissioner South Kanara, Mangalore (1) a question arose as to whether the
Mysore General Services (Revenue Subordinate Branch) Recruitment Rules, 1959
were made with the previous approval of the Central Government under the
proviso to section 115, subsection (7) of the States Reorganisation Act. It was
held there that the memorandum of the Central Government dated 11 May, 1957
amounted to previous approval within the meaning of section 115(7) of the
States Reorganisation Act. The Mysore General Services (Revenue Subordinate
Branch) Recruitment Rules, 1959 were therefore held to be validly made.
The decision in Raghavendra Rao's (1) case
has been relied on and applied in the recent decision in writ petition No.385
of 1969 and other Writ Petitions : Mohammad Shujat Ali & Ors. v. Union of
India & Ors. (2).
The condition of service in regard to passing
of departmental examination for the purpose of promotion is" therefore,
fully clothed with the previous approval of the Central Government. The
appellants also appeared in the examination. They availed of the same method of
promotion.
They have suffered no prejudice because they
passed the departmental examination later than the respondents.
For these reasons, we are of opinion that
there is no merit in the contention of the appellants. They have been rightly
treated as junior to the respondents. That is the correct position in law as
well as in the facts and circumstances of the case. In view of the fact that
the parties were directed to bear their own costs throughout in the High Court
we make a similar order that they will pay and bear their own costs in this,
appeal.
V.M.K. Appeal dismissed.
(1) [1964] 7 S.C.R. 549. (2) [1975] 1 S.C.R.
449.
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