Dhayanand
Vs. Union of India & Ors [1995] INSC 498
(13 September 1995)
B.P.
Jeevan Reddy, M.K. Mukherjee J.S. Verma. J.
ACT:
HEAD NOTE:
WITH CIVIL
APPEAL NOS. 8219-20 OF 1995 (arising out of SLP (C) Nos. 12116-17 of 1991) Mubarak
Masih., V. The Finance Secretary, Union Territory of Chandigarh & Ors.,
AND Writ Petition (C) No. 181 of 1995 Sh. B.P. Singh & Ors. V. Union of
India & Ors.
Special
leave granted in special leave petitions.
The
only question for decision in these matters is :
Whether
the benefit of earlier qualifying military service as defined in the Punjab
Government National Emergency (Concession) Rules, 1965 (hereinafter referred to
as "1965 Rules") could be given to the concerned employees appointed
after 1.11.1966 in the services of the Union Territory of Chandigarh except
Medical and Health services thereof? If it is held that the benefit of the said
rules is available also to the employees appointed in the services of the Union
Territory of Chandigarh after its formation on 1.11.1966 then the claim of each
of them has to be examined on merits in accordance with the rules. The Central
Administrative Tribunal and the High Court of Punjab and Haryana have taken the
view that these rules do not apply to appointees in the services of the Union Territory after 1.11.1966. These matters arise out of these
decisions.
The
only material fact which requires mention is that these matters relate to
employees in the services of the Union Territory of Chandigarh all of whom were
appointed subsequent to 1.11.1966. They claim benefit of the Punjab Government
National Emergency (Concession) Rules, 1965 for the purpose of increments,
seniority, promotion and pension etc. in accordance with the rules. The stand
of the Union Territory is that the benefit of the 1965 Rules is available only to
the appointees prior to 1.11.1966 since they were appointed in the State of Punjab and carry with them the benefit
which had already accrued to them. It may be mentioned that the Union Territory
Administration itself by G.O. No. 1023-1H (7)-87/5025 dated 19.3.1987 had taken
the view that the benefit of military service in accordance with these rules
would be available to ex-servicemen who joined service in the various
departments in the Union Territory of Chandigarh but subsequently this view was
altered in G.O. No. 27/1/3/92-1H (7)/10935 dated 2.6.1992 on reconsideration of
the matter. This change in the view gave rise to the claims made by the
concerned employees in the Tribunal and High Court.
In the
context of applicability of an administrative order of the Government of State
of Punjab issued prior to 1.11.1966 it was held by this Court in State of
Punjab and by virtue of Section 88 of the Punjab Reorganisation Act, 1966, an
administrative order made by the erstwhile State did not automatically lapse
and continued to be in force, effective and binding on the successor State
unless modified and repudiated. There can be no doubt that The Punjab
Government National Emergency (Concession) Rules, 1965 which fall within the
definition of "law" in Section 2 (g) of the Punjab Reorganisation
Act, 1966 continued in force and were effective in the Union Territory of Chandigarh
until and unless modified, changed or repudiated by the Union Territory
Administration. The question, therefore, is whether there was any modification,
change or repudiation of the said 1965 Rules by the Union Territory administration after 1.11.1966? It may be mentioned that
the Punjab Recruitment of Ex-servicemen Rules,
1982 repealed the Punjab Government National Emergency (Concession) Rules, 1965
but the saving clause therein preserved the rights which had accrued to any
person under the repealed rules. All the employees, in these matters were
appointed after 1.11.1966 but before the application of 1982 Rules. There is no
controversy that if the 1965 Rules continued to be in force in the Union Territory after 1.11.1966 unless repudiated or repealed, the
concerned employees in these matters, subject to fulfillment of the conditions
of eligibility under the 1965 Rules, would be entitled to its benefit. The
question for consideration, therefore, is whether the 1965 Rules were modified,
repudiated or repealed in their applicability to these employees? The answer
depends on the construction of Notification Nos. SO 3267, SO 3268 and SO 3269
all dated 1.11.1966 issued by the Government of India, Ministry of Home
Affairs, New Delhi. By Notification No. SO 3267 the powers conferred by the
proviso to Article 309 of the Constitution on the President of India were delegated
to the Administrator of the Union Territory of Chandigarh to make rules in
regard to the matters specified therein which included the method of
recruitment to Central Civil Services and posts (Class II, Class III and Class
IV) under his administrative control in connection with the affairs of the
Union Territory of Chandigarh and conditions of service of persons appointed to
such services and posts for the purposes of probation, confirmation, seniority
and promotion.
By
Notification No. SO 3268 rules were framed by the President called the
Conditions of Service of Union Territory of Chandigarh Employees Rules, 1966
(hereinafter referred to as "1966 Rules"). Rule 2 therein provided
that the conditions of service of persons appointed to the Central Civil
Services and posts Class I, Class II, Class III and Class IV under the
administrative control of the Administrator of the Union Territory of Chandigarh
subject to any other provision made by the President was to be the same as the
Conditions of Service of Persons appointed to other corresponding Central Civil
Services. The remaining part of Rule 2 is not material for the present purpose.
In short, by virtue of Rule 2 the Rules applicable to the Central Civil
Services were made applicable to regulate the conditions of service for such
employees. Rule 3 is significant. It reads as under:
"3.
Rules not to apply to matters relating to probation, confirmation, seniority
and promotion.
Nothing
contained in these rules shall apply to probation, confirmation, seniority and
promotion in respect of persons in relation to whom the administrator of the
said union territory has been authorised under the notification of the
Government of India in the Ministry of Home Affairs No. 12/1/66-CHD (I) dated
the 1st November, 1966 to make rules under the proviso to article 309 of the
Constitution." Rule 4 contains the provision for repeal relating to
matters for which provision is made in Rule 2. The net result of these rules
contained in Notification No. SO 3268 is that employees of the Union Territory
to posts in Class II, Class III and Class IV services under the administrative
control of the Administrator of the Union Territory, in respect of whom the
rule making power was delegated by the President to the Administrator of the
Union Territory were not to be governed by the rules contained in SO 3268 in
respect of matters relating to probation, confirmation, seniority and
promotion. This is the effect of the combined reading of the two notifications
and the express provision made in Rule 3 of the 1966 Rules framed by the
President by Notification No. SO 3268. In other words, by virtue of Rule 3
therein the 1966 Rules had no application to the Union Territory employees holding posts in Class
II, Class III, and Class IV services in respect of the specified matters.
None
of the concerned employees in these matters belong to Class I service to whom
alone the Central Civil Rules were made applicable by Notification No. SO 3268
in respect of matters relating to probation, confirmation, seniority and
promotion. The third Notification No. SO 3269 is to the same effect.
It is,
therefore, clear that the Punjab Government National Emergency (Concession)
Rules, 1965 continued to apply in the Union Territory of Chandigarh even after
1.11.1966 till modified, changed or repudiated by the Union Territory
Administration and they continued to apply to the employees appointed in the Union Territory after 1.11.1966 who were eligible for the benefit of those
rules. This is so because these rules relate to matters for which the Central
Civil Services Rules were not applied to employees in Class II, III & IV
posts. The contrary view taken by the Tribunal and the High Court cannot,
therefore, be upheld.
Consequently,
the appeals and the writ petition are allowed in this manner. The impugned
orders of the High Court and the Tribunal are set aside. The claim of the
concerned employees in these matters would now be considered and decided by the
Union Territory Administration in accordance with the rules.
U.T. Chandigarh
V. Natha Singh & Ors.
ORDER
Leave
granted.
We
have decided the connected matters i.e. Civil Appeal No. ........... of 1995
(arising out of SLP (C) No. 16536 of 1992), Dhayanand vs. Union of India &
Ors., [with Civil Appeal Nos. ............ of 1995 (arising out of SLP (C) Nos.
12116-17 of 1991) and Writ Petition (C) No. 181 of 1995] by a separate judgment
pronounced today, September 12, 1995. Because of the view taken in the
connected matters, this civil appeal is dismissed.
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