Skip to content


T.P. Thomas Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberW.P. No. 7695 of 1976
Judge
Reported inILR1977KAR1114; 1977(1)KarLJ325; (1978)ILLJ191Kant
ActsConstitution of India - Articles 226 and 309
AppellantT.P. Thomas
RespondentUnion of India and ors.
Excerpt:
- limitation act (36 of 1963)article 110: [k.ramanna,j] partition - suit by a person excluded from joint family property limitation partition of joint family property took place 50 years back father of plaintiff remained excluded from said partition - no suit filed by him in his lifetime challenging said exclusion, although he had objected same and demanded fresh partition by convening panchayat held, since no suit was filed within 12 years in spite of being aware of exclusion, suit by plaintiff is barred by limitation. [k. ramanna, j.] (a) code of civil procedure, 1908 - section 100 -regular second appeal - suit for partition and separate possession - decretal of - appeal against - dismissal of so as jarred by limitation - pleaded against . second appeal, he ld, courts below..........dated 1-6-1963 which are quoted in the course of the writ petition are instruction 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 1963.6. the only question for decision is, whether the petitioner is entitled to the benefit of 17 years of combatant service for the purpose of seniority.7. the determination of this question depends upon the interpretation of ext. 'b', and the ministry of defence memo no. 10(1) 63/6039/d (appts dated 1-6-1963 addressed to all concerned in the defence headquarters. in order.....
Judgment:
ORDER

1. In the above writ petition under Art. 226 of the Constitution of India, the petitioner has sought for quashing the Communication No. 85860/Person RD-21 (c) LRDE/5702/D (R & D) dt. 24-6-1976 at Ext. 'E' by the 1st respondent to the 2nd respondent 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 India Army on November 17, 1947 and was discharged from Army Service on the 6th October 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 on 11th February 1967. In December, 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 Personons 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 Ext. '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 for determination of the seniority on the basis of the order of Govt. of India dt., 4th December, 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 post and for all consequential benefits that he may be entitled to Six months time was granted, which expired in September 1975. On the 18th September 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. The 1st respondent sent a communication marked as Ext. 'E' to the 2nd respondent stating that according to the provisions of the Ministry's Memo No. 10 (1) 63/6039/D (Appts) dated 1-6-1963, the formula of equivalence of duties stated in Ministry's Memo No. 13034/D (Appts) dated 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 respondent at Ext. 'D' and the latest communication dated 24th June, 1976 at Ext. 'E' are both illegal and liable to the quashed and that he is entitled to the seniority by virtue of his 17 years of combatant service.

3. The respondents have not chosen to file their statement of objections.

4. Mr. G. S. Ullal, learned advocate for the petitioner, firstly contended that the petitioner who is an ex-serviceman on re-employment is entitled to the benefit of his combatant service of 17 years for purposes of seniority, in view of Ext. 'B' dated 11th December, 1959 issued by the Government of India. Secondly, he contended that the stand taken by the 1st respondent in Ext. 'E' dated 24-6-1976 stating that the Memo No. 10(1) 63/6039/D (Appts) dated 1-6-1963, comes in the way of the petitioner getting the benefit is wholly wrong and illegal.

5. Mr. U. L. Narayana Rao, learned advocate for respondents, contended that the communication at Ext. 'B' dated 4-12-1959 and the Memo dated 1-6-1963 which are quoted in the course of the writ petition are instruction 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.

6. The only question for decision is, whether the petitioner is entitled to the benefit of 17 years of combatant service for the purpose of seniority.

7. The determination of this question depends upon the interpretation of Ext. 'B', and the Ministry of Defence Memo No. 10(1) 63/6039/D (Appts dated 1-6-1963 addressed to all concerned in the defence headquarters. In order to determine this question, it is necessary to reproduce these two communications.

8. The copy of the Government of India, Ministry of Defence letter No. 13034/D (Appts) dated 4-12-1959 reads thus :

'In amplification of the provision of the provision of AI 241/50 and corresponding orders on the Air Force and Navy sides, it has been decided in consultation with the Ministry of Home Affairs that in determining seniority of Government Servants on appointment in civil posts, benefit of all previous service rendered in the same or equivalent posts (including service rendered in combatant capacity) should be given and for this purpose the posts should be treated as equivalent if the nature and duties attached to them are similar, irrespective of the rate of pay drawn in the previous posts'

9. The copy of the Ministry of Defence Memo No. 10(1) 63/6039/D (Appts) dated 1-6-1963 addressed to all concerned in the Ministry of Defence headquarters reads thus :

'In clarification of the provisions of this Ministry's No. 13034/D (Appts) dt. 4th December, 1959 on the above, it has decided that persons, who were employed in clerical duties in combatant posts and may be re-employed in civil posts under this Ministry in clerical capacity may be given benefit of their combatant services for seniority in the civil post irrespective of the rates of pay drawn by them in combatant posts.

The formula of equivalence of duties, is, however, not to be applied in the case of ex-servicemen re-employed as LDCs. or in other grads who had rendered service in posts/grads other than clerical.

These orders will not have any retrospective effect and promotion/confirmations already made will not be disturbed.'

10. On a careful reading of the communication marked at Ext. 'B', which was issued in modification of the Ministry of Defence letter No. 13034/D (Appts) dated 4th December, 1959, it is clear that in determining the seniority of Government servants on appointment in civil posts, benefit of previous service rendered in the same or equivalent posts including service rendered in the combatant capacity should be given and for that purpose the posts should be treated as equivalent if the nature of duties attached to them are similar, irrespective of the rate of pay drawn in the previous posts.

11. Further, a careful reading of the second communication quoted above, it is clear that the persons who were employed in clerical duties in combatant posts and re-employed in civil posts in clerical capacities are to be given the benefit of their combatant service, irrespective of the rates of pay drawn by them, thus, laying down the formula of equivalence of duties. The second para states that the formula of equivalence of duties should not 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 true meaning of what is stated above is that where the ex-servicemen who were employed in any clerical posts during the combatant service are employed as LDCs. or in any other clerical grade, they shall not be subjected to the application of the formula equivalence. In other words, the equivalence of duties stated in para No. 1 of the communication second cited is not to be applied to ex-servicemen re-employed as LDCs. or in any other grade. The benefit of their combatant service for the purpose of seniority is governed by Ext. 'B' dated 4th December, 1959. Both the communication thus understood render the stand taken by the respondents at Ext. 'E' untenable and invalid. The formula of equivalence of duties is to be applied only to persons who were employed in clerical duties in combatant posts and latter on re-employed in civil posts. But the formula of equivalence of duties does not apply to ex-servicemen who were not employed in clerical duties in combatant posts, but were re-employed as LDCs. or in the grades other than clerical posts or grades. The communication placed a wrong interpretation of the import of the communication of the Ext. 'B' dated 4-12-1959 and the communication of 1963. Therefore, the contention urged on behalf of the respondents that the petitioner is not entitled to the benefit, of 17 years of combatant service for the purpose of seniority on his re-employment in civil post is untenable and cannot be accepted. The petitioner was in the combatant service for 17 years before he was discharged from service in the year 1964. He was appointed as an Electrician (B. Group tradesman) in July, 1965 in the Electronics and Radar Development Establishment, Bangalore. Since he was not holding any clerical post when he was in combatant service the formula of equivalence of duties does not apply to him and he is straight away entitled to the benefit of 17 years for the purpose of counting his seniority.

12. However, Mr. Narayana Rao, contended that the communication of 1959 at Ext. 'B' and of 1963 are administrative instructions issued by the Ministry of Defence and they did not form conditions of service, since they lack the force of legislation or rule issued under Art. 309 of the constitution. Alternatively, he urged that those communications gave no vested right to the petitioner as such and that any benefit given under Ext. 'B' was modified under a communication of 1963. The alternative contention of Mr. Narayana Rao, cannot be accepted, in view of what has been stated above. The 1963 communication has not modified the right vested in the petitioner under the communication Ext. 'B'. Therefore, the other contention, viz., that those two communications are administrative instructions which laid down the conditions of service requires to be examined.

13. It is not disputed that these three communications are issued by the Ministry of Defence.

14. Mr. G. S. Ullal contended that the Ministry of Defence Memo at Ext. 'B' laid down the conditions of service for ex-servicemen on re-employment entitling them to the benefit of their combatant service for purpose of seniority. The second communication of the Ministry of Defence dated 1-6-1963 merely clarified the provisions of the Defence Ministry's Memo dated 4th December, 1959 at Ext. 'B'. Reliance is placed upon the decision of this Court in G. V. B. Naidu v. State of Mysore (1970) 2 K.L.J. 296 and a decision of the Supreme Court in Ex-Major N. C. Singhal v. Director General, Armed Forces, Medical Services, New Delhi [1972-I L.L.J. 249]; A.I.R. 1972 S.C. 629.

15. In the first cited decision, this Court held thus :

'What was done by the Govt. order on 2-3-62 was not a mere adjustment of seniority on an examination of previous acquired rights, but the act of determination of a service condition by fixing a proportion between the promotees and the direct recruits in the cadre of Asst. Directors and laying down a rule for the first time, for determination of relative seniority between promotees and direct recruits and Govt. could not thereafter take away that right by a mere executive order. The second order could not be regarded as one laying down a condition of service'.

16. Further in the second cited decision of the Supreme Court, the elucidation of law is as follows :

'The appellant submitted that his conditions of service were governed by the Army Instruction No. I/S of 1954 and according to para 13 thereof the whole of his previous full pay commissioned service must count for pay, and that Army Instruction No. 176 which came into force with retrospective effect from October 26, 1962, in the case of AMC. Reserve Officers called to colour service during emergency in the matter of 'ante-date' for promotion, TA, leave and pay, cannot affect his conditions of service which were governed in this behalf by para 13 of Army Instruction No. I/S of 1954.

We think that the appellant's conditions of service were governed by para 13 of Army Instruction No. I/S of 1954 and his previous full pay commissioned service should be taken in the matter of 'ante-date' for the purpose of his pay. The condition of service in this regard was not liable to be altered or modified to the prejudice of the appellant by a subsequent administrative (Army) instruction which was given retrospective effect from October 26, 1962.'

17. It is clear from the elucidation of law by the Supreme Court that conditions of service of ex-Army men are governed by the Army instructions and they are not mere administrative instructions as contended by Mr. Narayana Rao, for respondents. Therefore, the letter No. 13034/D (Appts) dated 4-12-1959 of the Ministry of Defence, Government of India, governed the petitioner's condition of service and it was not liable to be altered or modified to the prejudice of the petitioner by any subsequent administrative instructions. In the light of the decision of this Court cited above, the letter of the Defence Ministry referred to above is not merely administrative instruction governing the seniority, but it gave a vested right to the petitioner for counting the 17 years of combatant service for the purpose of seniority on re-employment in the civil post.

18. However, Mr. U. L. Narayana Rao, relied upon the decision of the Supreme Court in Roshan Lal Tandon v. Union of India, : (1968)ILLJ576SC and contended that under Arts. 309, 310 and 311 of the Constitution of India, the terms of service can be altered unilaterally by the Government and there is no vested right for service. He further urged that 1963 Defence Ministry's letter unilaterally altered the conditions of service and it cannot be challenged by the petitioner. The ratio of this decision does not in any way assist the respondents. Firstly, this decision lays down that the legal position of Government service is more one of status than of contract. The hall-mark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement by the parties. The duties of status are fixed by the law and in the enforcement of these duties society has an interest. In the language of jurisprudence status is a condition of membership of a group of which powers and duties are exclusively determined by law and not by an agreement between the parties concerned. Secondly, as already stated above, the letter No. 85860 (Person) RD-21 (C)/LRDE/5702/D (R & D) issued by the Ministry of Defence, Government of India, merely clarified what was stated in Ext. 'B' dated 4-12-1959. It did not alter the rights vested in an ex-serviceman on re-employment to the civil post. Therefore, the contention of Mr. U. L. Narayana Rao, for respondents that those were administrative instructions issued by the Ministry of Defence and that they did not form conditions of service is without force. Therefore, this contention fails.

19. In view of what has been discussed above, it is clear, that the petitioner is entitled to the benefit of 17 years of combatant service for the purpose of seniority on re-employment in the civil post and he is entitled to the relief as prayed for in the writ petition. In view of the above finding the communication of the respondents in No. 85860 (Person)/RD-21(C)/LRDE/5702/D (R & D) dated 24-6-1976 marked at Ext. 'E' interpreting the previous memos of the Defence Ministry is illegal and invalid and it is liable to be quashed. Accordingly, Ext. 'E' is quashed and the writ petition allowed.

20. Issue a mandamus to 2nd respondent to refix the seniority of the petitioner after counting his 17 years combatant service in the civil post and grant him all promotional and monetary benefits and other reliefs, if any. Time one months. No costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //