T P THOMAS Vs. UNION OF INDIA

JUDGEMENT

(1.) In the above writ petition under Art.226 of the Constitution of India, the petitioner has sought for quashing the Communication No.85860/Pers/RD-21(c) LRDE/5702/ D(R & D) dt.24-6-1976 at Ext.'E' by the 1st Respt to the 2nd Respt denying the petitioner his seniority by the omission to count his 17 years of combatant service.

(2.) Briefly facts are: The petitioner joined service in the Indian Army On Novr 17, 1947 and was discharged from Army Service on the 6th Octr, 1964 on which date he was holding the post of 'Nayak'. Thereafter he was appointed as an Electrician (Group B Tradesman) on July 7, 1965 in the Electronics and Radar Development Establishment, Bangalore. Later on he was promoted as Instrument Mechanic Group A Tradesman pn 11th Febry 1967.- In Deer 1970, he was permitted to appear for the Trade Test for earning eligibility for appointment to the post of Supervisor Group 2/Precision Mechanic. The case of the petitioner is that he secured more than 40 per cent of the marks at the said test and secured a pass. Along with him 15 persons who passed the test were given appointment in May, 1971. His complaint is that if his seniority was properly determined by counting his 17 years in the combatant service he would have been in the cadre of Supervisor Group-2 or equivalent cadre in May 1971. He claimed this benefit under Exhibit 'B'. Earlier to the filing of this writ petition he had approached this Court with a writ petition No.173 of 1973 claiming the . same benefit. This Court partly allowed the writ petition and issued a writ of mandamus directing respondents therein to examine the claim of the petitioner foi determination of the seniority on the basis of the order of Govt of India dt.4th Dec. 1959 marked at Ext.'B'. Further, this Court observed that if the petitioner was accorded a higher rank than the one assigned to him now on the basis of fresh determination of his seniority, Respt-3 therein shall further consider his claim for promotion to higher pest and for all consequential benefits that he may be entitled to. Six months time was granted, which expired in Sept 1975. On l&th Sept 1975 the petitioner's Advocate sent a legal notice to the respondents requesting that determination of the seniority of the petitioner should be made in pursuance of this Hon'ble Court's order. Thereafter the petitioner had received a communication marked at Ext.'D' rejecting his claim. The petitioner made a further representation to the Ministry of Defence of June 24, 1976. Tht 1st Respt sent a communication marked as Ext.'E' to the 2nd Respt stating that according to the provisions of the Ministry's Memo No. 10(1)630639/D (Appts) dt. 1-6-1963. the formula of equivalence Of duties stated in Ministry's Memo No.13034/D (Appts) dt.4-12-1959 marked at Ext'B', is not to be applied in the cases of ex-servicemen re- employed as LDCs or in other grades who had rendered service in posts grades other than clerical. The petitioner submits that the 'Ruling' of the 1st Respt at Ext.'D' and the lalest communication dt.24th June 1976 at Ext. 'E' are both illegal and liable to be quashed and that he is entitled to the seniority by virtue of his 17 years of combatant service.

(3.) The respondents have net chosen to file their statement of objections. Mr. G.S.Ullal, learned Advocate for the petitioner, firstly contended that the petitioner who is an ex-service man on re-employment is entitled to the benefit of his combatant service of 17 years for purposes of seniority, in view of Ext.'B' dt.4th Dec. 1959 issued by the Govt. of India. Secondly, he contended that the stand taken by the 1st Respt in Ext.'E' dt.24-6-1976 stating that the Memo NO. 10(1) 63/6039/D (Appts) dt.1-6-1963, comes in the way of the petitioner getting the benefit is wholly wrong and illegal. Mr.U.L.Narayana Rao, learned Advocate for respondents, contended that the communication at Ext.'B' dt.4-12-1959 and the Memo dt. 1-6-1963 which are quoted in the course of the writ petition are instructions issued by the Defence Ministry and they did not form conditions of service under Art.309 of the Constitution. Secondly, he contended that assuming that those communications laid down conditions of service there is no vested right in the petitioner as such and that any benefit given under Ext.'B' was modified by the communication of 1963.