M.K. BAKSHI DEPUTY EXCISE AND TAXATION COMMISSIONER (DISTILLERIES), PUNJAB, PATIALA Vs. THE STATE OF PUNJAB AND OTHERS

JUDGEMENT

(1.) THE Petitioner M.K. Bakshi joined service in 1941 in the Excise and Taxation Department of the Punjab Government. He received various promotions and on November 12, 1964, he was appointed as an officiating Assistant Excise and Taxation Commissioner. Respondent 3, B.R. Tanwar, belongs to a scheduled caste and he was promoted to the rank of the Assistant Excise and Taxation Commissioner on March 15, 1965. In his appointment order, it was stated that he would be senior to the petitioner and Shri Daryao Singh, who were already officiating as Assistant Excise and Taxation Commissioners. Having come to know of this order, the petitioner made a representation to the Government on June 24, 1935, claiming that respondent 3 was a junior officer and was not entitled to rank senior to the petitioner in the promoted rank of Assistant Excise and Taxation Commissioner. This representation was considered by the Government along with the representation of respondent 3 dated July 31, 1J67, and it was decided that respondent 3 was senior to the petitioner as had already been decided by the Government. This order was conveyed to the Excise and Taxation Commissioner, Punjab, Patiala, by Memo No. 9255 -W2(1) 68/2348, dated May 10, 1968. The Excise and Taxation Commissioner, Punjab, informed the petitioner and respondent 3 of the decision of the Government dated May 10, 1968. by a letter dated May 27, 1968. On July 10, 1968 the petitioner filed the present petition challenging the decision of the Government dated May 10, 1968, a copy of which is Annexure 'D' to the writ petition The petition has been contested by all the respondents who have filed their written statements.

(2.) IN the returns it has been pointed out that on September 12, 1963, the Government had decided to reserve the first vacancy for a scheduled caste candidate On April 29, 1964, Shri M.L. Sondhi was promoted from the rank of Assistant Excise and Taxation Commissioner to that of the Deputy Excise and Taxation Commissioner and thus the post vacated by him was reserved for a scheduled caste officer. At that time Shri Hari Kishan, a member of a scheduled caste, was senior to respondent 3 and his case was sent to the Punjab Public Service Commission for approval. He was not approved and, therefore, respondent 3 is name was sect, to which the Punjab Public Service Commission conveyed its approval on January 30, 1965, respondent 3 was thereafter appointed as Assistant Excise and Taxation Commissioner with the approval of the Punjab Public Service Commission. It is further stated that the petitioner was promoted as officiating Assistant Excise and Taxation Commissioner without consulting the Punjab Public Service Commission and that his case was sent to that Commission after his appointment and till the date of filing the return the approval of the Public Service Commission had not been received. The return is dated December 16, I968. In the meantime, respondent 3 was confirmed as Assistant Excise and Taxation Commissioner with effect from November 1, 1966 while the petitioner has not been Confirmed to this day. It has, however, been stated by the learned counsel for the petitioner that both the petitioner and respondent 3 have been appointed as officiating Deputy Excise and Taxation Commissioner with effect from April 26, 1968 and the name of respondent 3 has been shown as senior to the petitioner. It is, therefore, submitted on behalf of the respondents that the appointment of the petitioner as officiating Assistant Excise and Taxation Commissioner on November 12, 1964, was not in order as the Public Service Commission had not been consulted, which consultation was necessary under Rule 5 of the Punjab Excise and Taxation Department (State Service Class II) Rules, 1956. In the case of respondent 3, the Public Service Commission was consulted and its approval obtained before the order of his appointment was made. It is, therefore, claimed that respondent 3 has to be deemed to have been appointed earlier than the petitioner. The reply on behalf of the petitioner is that the date of appointment to the post of Assistant Excise and Taxation Commissioner was November 12, 1984, in the case of the petitioner, and March 15, 1965 in the case of respondent 3, both the appointments were valid and legal and for the purposes of seniority length of continuous service on that post had to be seen as is provided in Rule 12 of the Service Rules as amended on February 8, 1965, and that the provision with regard to the consultation with the Punjab Public Service Commission is not mandatory but directory as the function of the Public Service Commission is advisory in nature, which advice is not even binding on the Government. I have set out the various pleas of the parties in order to show that the matter required deeper consideration at the hands of the Government when the representations of the petitioner and respondent 3 were considered and it was obligatory on the Government to pass a speaking order giving reasons for making respondent 3 senior to the petitioner in spite of the fact that the length of continuous service in the post of Assistant Excise and Taxation Commissioner was more in the case, of the petitioner as compared with that of respondent 3 By now it is well settled that the determination of sonority on representations made by the officers is a quasi -judicial function and has to be decided with a judicial approach. The fixation of seniority affects the future career of every officer in service. It has civil consequences and the matter has to be decided in a quasi -judicial manner after notice to the parties concerned, as has been held by their Lordships of the Supreme Court in State of Orissa v. Dr. (Miss) Binapani,, 1967 S.L.R. 4651 The direction with regard to seniority of respondent 3 given in his order of appointment was an administrative act of the Government against which the petitioner fell aggrieved and made a representation. It was incumbent on the Government to consider and decide that representation in a quasi -judicial manner by passing a reasoned order, which is called a speaking order. Not only that the orders should contain the reasons but those reasons have to be communicated to the officer against whom the decision is made so that he can challenge the same by filing a petition under Article 226 of the Constitution of India or making in application for special leave to the Supreme Court under Article 136 of the Constitution If the reasons in support of the decision are not conveyed to him, he will net be able to avail of that remedy in an effective manner as the grounds of the decision adverse to him are not known to him. In Sh. Pragdas Umer Vaiahya v. Union of India and Ors. C.A. 667 of 1967, decided on August 17, 1967) their Lordships of the Supreme Court held as under:

(3.) FOR the reasons given above, this petition is accepted and the order of the State Government dated May 10, 1908, rejecting the representation of the petitioner and deciding that respondent 3 is senior to the petitioner is hereby quashed, and the State Government is directed tore -decide the matter by passing a speaking order after rearing the petitioner and respondent In the circumstances of the case, I make no order as to costs.