SURESH KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS petition under Articles 226 and 227 of the Constitution has been filed by suresh Kumar and Tara Chand Jain, employees of Government Medical Stores depot, Karnal, for quashing the instructions issued by the Director-General of health Services, New Delhi, respondent No. 2, on 19th of June 1963 and 3rd of december 1965, contained in Annexures 'g' and 'l' to the writ petition, and the seniority list, Annexure 'h/1', prepared thereunder.

(2.) PETITIONER No. 1 was appointed a clerk in the Medical Stores Depot at Karnal on 9th of October 1950 and petitioner No. 2 on 26th of November 1951. The posts against which they were appointed were temporary and they were continued on year to year basis. The posts of different categories of clerks, viz. , Store assistants/office Clerks/store Clerks, were re-designated as Lower Division Clerks in 1961 under the Government of India Ministry of Health letter, dated 8th of december 1961. When the petitioners were appointed, seniority in a grade was determined on the basis of length of service in that grade as well as service in an equivalent grade in accordance with the provisions of the Government of India, ministry of Home Affairs, Office memorandum, dated 22nd of June 1949 (Annexure 'r-2' to the return ). No instructions regarding promotion to higher grade were, however, given in this office memorandum. The order which was then in force related only to the fixation of seniority in a grade. So far as the question of promotion from the post of Lower division Clerk to the post of Upper Division Clerk was concerned, it was made on the basis of seniority subject to rejection of the unfit in accordance with the provisions of the Ministry of Home Affairs Office memoranda, dated 28th of June 1960 and 27th of August 1960. Prior to 22nd of December 1959 all the permanent and temporary employees of the Lower Division Clerks' grade were required to be arranged in a single seniority list with reference to their total length of the continuous service in the grade or in an equivalent grade in accordance with the provisions of the Government of India, Ministry of Home Affairs, Office memorandum, dated 22nd of June 1949. However, according to the return, the seniority list so arranged was required to be revised on 22nd of December 1959 placing all those confirmed in the grade, including Scheduled Caste and Scheduled Tribe candidates, en bloc senior to those not confirmed in that grade in accordance with Para. 2 of the Annexure to the government of India, Ministry of Home Affairs, Office memorandum, dated 22nd of december 1959 (Annexure 'r-6' to the return ). The petitioners, who were not confirmed in the grade of Lower Division Clerks on 22nd of December 1959 became junior to those who were already confirmed on that date. However, due to incorrect interpretation of the office memorandum, dated 22nd of December 1959, so the return says, the petitioners were treated as senior to those already confirmed on 22nd of December 1959 in the grade of Lower Division Clerks and were promoted as Upper Division Clerks on that basis. When the incorrect interpretation of this office memorandum, came to the notice of the authorities, they, according to the return, reverted the petitioners to the posts of Lower Division Clerks and instead promoted the senior persons, viz. , Sita ram, Wasti Ram and Gurdayal Singh, thus rectifying the error. According to the petitioners, on the other hand, the office memorandum, dated 22nd of December 1959, did not affect their seniority in any way. It did not purport to act retrospectively and was intended to determine the seniority of those persons who were recruited after the date of this memorandum. It was for these reasons that this memorandum, according to the petitioners, was not circulated to them or other employees of the Medical Stores Depot similarly affected. It is common ground, that in 1952 and also thereafter till such time as clarification was obtained from the Government of India, Ministry of Home Affairs, regarding the application of the Office memorandum, dated 22nd of December, 1959, the medical Stores Depots had been informed from time to time that the seniority of the employees in a grade should be determined on the basis of length of service in the grade in accordance with the provisions of Ministry of Home Affairs Office memorandum, dated 22nd of June, 1949. The petitioners were confirmed as Lower division Clerks with effect from 21st of March 1960 and some Scheduled Caste employees recruited in the depot according to the prescribed reservation for them, were confirmed from an earlier date than the petitioners, and these included Sita ram, Wasti Ram and Gurdayal Singh. It is further common ground that the petitioners and Roshan Lal Khanna, who were then permanent Lower Division Clerks, were promoted as officiating Upper division Clerks in three available vacancies with effect from 12th of September, 1962. The petitioners as well as certain other employees, not belonging to scheduled Castes/scheduled Tribes, in the Medical Stores Depot, Karnal, who were earlier treated as senior in the grade under the Ministry of Home Affairs office memorandum, dated 22nd of June, 1949, on the basis of length of service in the grade, irrespective of the dates of the confirmation were allotted lower positions in the revised seniority list prepared according to the provisions of the ministry of Home Affairs Office memorandum, dated 22nd of December, 1959, on the basis of dates of confirmation. In the revised seniority list, Annexure 'h-1' to the writ petition, which was prepared in accordance with the directions contained in the memorandum, dated 19th of June 1968 (Annexure 'g' to the writ petition), issued by respondent No. 2, to the effect that the persons confirmed before 22nd of December, 1959 should be treated en bloc senior to those confirmed after that date. Scheduled Castes/ scheduled Tribes officials confirmed prior to 22nd of December 1959 were shown as senior to all those not confirmed on that date. The petitioners thereafter represented against the revision of their seniority and asked for protection from reversion from the posts of Upper Division Clerks. This representation was, however, turned down by the Ministry of Home Affairs and this information was conveyed by respondent No. 2 with his memorandum, dated 3rd of December, 1965 (Annexure 'l' to the writ petition ). That led to the filing of the present writ petition on 8th of December 1965.

(3.) LEARNED counsel for the petitioners submitted that the seniority of the petitioners had been fixed in accordance with their length of service as mentioned in Annexure 'r-2', dated 22nd of June, 1949. This seniority list (Annexure 'h' to the writ petition) had been maintained right up to June 1963 and the petitioners had been enjoying their seniority and consequent benefits of the same for the last 14 or 15 years. The seniority once fixed could not be altered to the disadvantage of the petitioners; the same was, however, changed on the basis of Annexure 'r6', dated 12th of December, 1959, according to which seniority was to be determined from the date of confirmation. In the first place Annexure 'r-6' had saved the seniority of persons like the present petitioners and others similarly placed, who were appointed before 22nd of December, 1959, and this Annexure was not capable of the interpretation which had been placed upon it by respondent no. 2 in Annexure 'g' dated 19th of Tune, 1963. The respondents had themselves admitted that in 1952 and also thereafter, till such time as a clarification was obtained from the Government of India, Ministry of home Affairs, regarding the application of Annexure 'r-6', the Medical Stores depots had been informed from time to time that the seniority of the employees in a grade should be determined on the basis of length of service in the grade in accordance with the provisions of Annexure 'r-2'. Secondly if Annexure 'r-6' was to be interpreted as having affected the seniority of the petitioners as well, then the same was bad in law, because the seniority of the petitioners could not have been altered to their detriment after such a long time unilaterally by the government. A right having accrued to the petitioners under Annexure 'r-2' could not be taken away retrospectively by the issue of Annexure 'r-6', even if the interpretation put thereon by the Government in Annexure 'g' was taken to be correct. Moreover, such an alteration would be violative of Articles 14 and 16 of the constitution, being discriminatory. The petitioners' vested rights to promotion on the basis of their seniority in accordance with the principles laid down in Annexure 'r-2' could not be taken away arbitrarily resulting in their reversion from Upper division to Lower Division Clerks, preference being given to those who though confirmed earlier had lesser length of service to their credit. The refixation of the seniority of the petitioners in an illegal manner on the basis of Annexure 'r-6' read with Annexure 'g', according to the learned counsel, had resulted in the reversion of the petitioners, thus causing serious loss to them and other employees of the depot similarly placed. Learned counsel argued that the petitioners were promoted in accordance with the seniority fixed under Annexure 'r-2' even after the issue of Annexure 'r-6'. It was submitted that Annexure 'r-2' was 'law' as defined in Article 13 (3) (a) of the constitution and, therefore, under Article 313 it would continue to govern the petitioners till a rule under Article 309 was framed. No such rule had been made in the instant case. In any case, Annexure 'r-2' contained conditions of service of the petitioners and they could not be varied to their disadvantage.