I D GARG Vs. UNION OF INDIA

JUDGEMENT

(1.) The principal question that this petition under Article 226 of the Constitution of India by 8 Assistant Directors /Assistant Executive Engineers of Central Water & Power Commission (Water Wing), Government of India, raises is as to whether the seniority of the petitioners vis-a-vis respondents 4 to 232 could be legitimately determined on the basis of their respective length of service, as claimed by the Union of India or in accordance with the date of their confirmation in service, as contended on behalf of the petitioners. The petition raises certain subsidiary questions as well.

(2.) It is a common case of the parties that, even though the said respondents were appointed against temporary posts of Assistant Directors/Assistant Executive Engineers in the Central Water & Power Commission earlier in point of time than the petitioners, the petitioners were confirmed against permanent posts earlier than the said respondents, some of whom still continue to work against temporary posts. Parties are also agreed that prior to October 15. 1965, there were no statutory Rules governing the service; that it was only on the said date that the Central Water Engineering (Class 1) Service, to which the parties belong, was constituted by the President under the provisions of Article 309 of the Constitution by the Central Water Engineering (Class 1) Service Rules, 1965; (for short the Rules of 1965); and that the said Rules do not make any provision with regard to the principles for the determination of seniority. There is also no dispute between the parties that ordinarily seniority is to be reckoned on the basis of confirmation in a post; that with a view to safeguard the interests of thousands of displaced Government servants, who were appointed to Central Services after the partition of India, a departure was made from the normal rule in regard to the determination of seniority; that the Ministry of Home Affairs, the authority competent to decide questions of policy with regard to the service, issued instructions contained in their Memorandum of June 22, 1949 (for short, the 49 Memorandum) which visualises that seniority in a grade was to be governed as a general rule on the basis of continuous length of service in a grade; that the aforesaid instructions were eventually extended to other categories of persons who were appointed to Central Services; and that the instructions contained in the 49 Memorandum continued to govern the determination of seniority of the Central Government employees until the policy was reversed and normal rule was restored with the Ministry of Home Aflairs Memorandum of December 22, 1959 (for short, the December 59 Memorandum), being a sequal to the realisation by the Government that in course of time the displaced Government servants, whose peculiar problem had led to the departure from the normal rule had, by and large, been absorbed in the various Central Services and their seniority had been fixed with reference to the length of service rendered by them making the continuance of the departure unnecessary. It is also a common case of the parties that in terms of the December 59 Memorandum permanent Government servants would rank senior to those holding temporary posts and that if the said Memorandum were to be applied to the case of the petitioners and the said respondents the petitioners would be senior to the respondents and would be entitled to be treated accordingly. There is also no dispute that even though in accordance with the Allocation of Business Rules the Ministry of Home Affairs, and subsequently the Cabinet Secretariat, were the competent authorities to lay down principles in regard to various matters relating to service under the Union, the seniority of the petitioners vis-a-vis the said respondents was determined, initially in the year 1968, and thereafter not on the basis of the nature of their respective tenure or the dates of their respective confirmation but on the basis of their entire length of service in derogation of the principles id down in the December 59 Memorandum by virtue of the provisions of the Office Memorandum of September 11, 1959, of the Ministry of Irrigation and Power (for short, the September 59 Memorandum), which recognised the entire length of seice as the basis of seniority.

(3.) On the basis of the aforesaid admitted hypothesis the petitioners contend that in terms of the Rules of Business framed under Article 77(3) of the Constitution of India for the allocation of Government business the broad policy laid down from time to time by the Ministry of Home Affairs, and more recently by its counterpart the Department of Personnel in the Cabinet Secretariat, with regard to the method of recruitment in the services, promotions etc. and matters connected therewith, is binding on all Ministries and that on the restoration of the normal rule with regard to seniority by the December 59 Memorandum the September 59 Memorandum, providing for determination of seniority on the basis of the length of service, stood impliedly repealed and could not, therefore, be given effect to or be legitimately made a basis for the determination of seniority of the petitioners and the said respondents. The petitioners, therefore, claim superior seniority on the basis of the December 59 Memorandum on the ground that, having been confirmed against permanent posts prior in time to the said respondents, the petitioners were entitled to rank senior to the said respondents not with sanding the fact that the respondents had joined service earlier than the petitioners, though in a temporary capacity.