S K SHARMA Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition under Article 226 of Constitution of India challenges the seniority list of Grade IV of the General cadre of the Indian Foreign Service Branch 'B' (hereinafter referred to as Indian Forest Service (B) issued by the Respondent 1n the gazette dated 30th April, 1965, attached as annexure 'C' to the petition.

(2.) The petitioner was a permanent Upper Division Assistant in the Uttar Pradesh Secretariat in the year 1954. In the year 1956 the formation of LF.S. (B) was approved by the Union of India and it was declared as deemed to have come into existence on 1-8-1956. The Rules for the constitution of it were called Initial Consttution Indian Foreign Service Branch 'B' 1956', (hereinafter to be called as Rules of 1956) and were approved laying down the general conditions of eligibility for recruitment, method of recruitment, seniority and other terms and conditions of service. The Government of Uttar Pradesh issued a circular letter dated 28-1-1957, informing their employees of the formation of the Indian Forest Service (B) and intimating them that the Government of India had invited applications for the appointment in different grades. In response to the said circular the petitioner submitted his application in February, 1957 as a candidate for one of the posts in grade IV. The petitioner was interviewed by the Selection Board in April, 1958 and was selected. The petitioner joined the Indian Forest Service (B) on 21-7-1958 in grade IV. The petition further alleges that the Ministry of External Affairs issued a seniority list under its Memorandum No. 7(13)-FSB/57 (EA159/7), dated the 13th February, 1959. It is alleged that in the said seniority list the petitioner was shown junior to many persons who according to him had been illegally appointed, it is also alleged that the said seniority list is illegal. The petition further states that the Ministry of External Affairs has again issued a seniority list under its memorandum dated 30-4-1965 of grade IV as on 31-5-1964. It is alleged that this list is in contravention of Rules of 1956 and is ultra, vires. It is alleged that in the said seniority list while fixing seniority in the case of recruits from the State Governments like the petitioner a deduction of 6 years has been made from their period of serivce while no such deduction has been made in the case of other recruits. It is also alleged that some four categories of persons who were not eligible to be recruited have been shown senior to the petitioner. It is stated that if the seniority was fixed treating the permanent non-Central Secretariat service people at par with the permanent Central Secretariat persons the petitioner will come up by about 350 places in the seniority list and ought to have been promoted in the year 1961. It is also alleged in the petition that if the seniority was fixed in accordance with Rule 8(11) of Rules of 1956 and the non-eligible persons irregularly recruited are placed below the petitioner, he would go above 150 persons. It is further alleged that by Notification dated 6th May, 1964 the Ministry of External Affairs has framed rules known as the Indian Foreign Service Branch 'B' (Recruitment, Cadre, Seniority and Promotion Rules, 1964, hereinafter to be called as 'Rules of 1964') and the said Rules came into force with effect from 1st June, 1964. It is alleged in the petition that the petitioner is not governed by Rules of 1964 in the matter of seniority though this position was specifically given up by Mr. Sanghi counsel for the petitioner during the arguments. It was further stated that the petitioner was transferred to Kandahar in January, 1961, where he remained posted upto March, 1963. Thereafter he came back and worked as a Circle Rationing Officer with the Delhi Administration where his services had beer. placed on deputation. and he worked as such since 26-11-1965. It is in the end prayed that Rule 8(11) of the Rules of 1956 be declared void and that the impugned seniority list issued by the respondent be quashed.

(3.) It may be mentioned that the Rules of 1956, were not issued under the proviso to Article 309 of the Constitution of India. What happened was that the Government of India, Ministry of External Affairs having decided to constitute Indian Forest Service (B) issued a memorandum prescribing the mode in which the service was to be constituted. It was specifically stated in the said memorandum that the future maintenance of the service will be in accordance with the Rules to be promulgated by the Central Government in due course. No objection can be found to the issue of this memorandum as it is now well settled that it is not essential under the proviso to Article 309 of the Constitution to make Rules of recruitment before a service can be constituted and that the State or the Union Government has executive powers in relations to all matters with respects which the legislature of a State or Union has power to make laws. The said memorandum laying down the instructions by which recruitment was to be done to the Indian Forest Service (B) service was, therefore, validly issued. The relevant Rule to which a reference has been made is Rule 5 which provides for the general conditions of eligibility for appointment in tile Service at the initial constitution. Clause (b) of Rule 5 provides as under:-