Narayana Pai, J.
1. The principal question in these two writ petitions is one of seniority as between G. V. B. Naidu, the petitioner in both the Writ petitions on the one hand, and respondents 2 to 10 in Writ petition 2505 of 1970 on the other. The petitions came to be filed in the following circumstances.
2. The petitioner and the nine respondents, mentioned above are officers serving in the Department of Agriculture of the State Government. The respondents were directly recruited on 30th August, 1950 for appointment as Assistant Directors of Agriculture. After completion of the probationary period they were appointed as Assistant Directors of Agriculture on 26th June, 1952. It is stated that though the said respondents have been declared to have satisfactorily completed their probation, there is no specific order of confirmation. These respondents will hereinafter be referred to as direct recruits or probationers.
3. The petitioner was already in service in the agriculture Department. Early in 1950 he was working as Agricultural Botanist. By an order dated 9th February, 1930 he was first placed in charge of the duties of the Assistant Director of agriculture. By a subsequent order dated 7th April, 1950 he was appointed as Acting Assistant Director of agriculture in what is described as an existing vacancy. Later, as from 3rd May, 1950, bis status was described by the term 'sub pro tem' which, according to the Mysore Service Regulations then prevalent, meant only an officiating status. Although this practice of appointing persons sub pro tem was abolished or given up, so far as the present cases are concerned, it is enough to note that throughout the period relevant for discussion, the petitioner was officiating in the promotional post of Assistant Director of agriculture.
4. In the provisional Inter State Seniority List of the Department he was shown as a junior to the probationers. Thereupon be moved the State Government for bis seniority being counted from his first promotion to the cadre of Assistant Directors and that he be therefore shown as senior to the probationers who were recruited subsequent to the date of his said promotion. On 2nd March, 1962, the State Government passed an order bearing No. AF 396 AEA 59 that the petitioner and two other persons similarly promoted before the recruitment of the probationers shall be treated and always bo deemed to have been treated as seniors to the said probationers.
5. The probationers, who felt aggrieved by the said order, presented Writ Petitions 823, 824 and 825 of 1962 impugning tha said order. Those petitions were, however, withdrawn with permission of the Court on 31st January, 1964. The withdrawal is said to have been made upon a representation on behalf of the State Government that they would hear both the parties and take a decision on the matter,
6. The Government took a very long time to come to any decision. In the mean-while, other events took place.
7. The first of the events was publication of the Final Inter State Seniority List in which the probationers continued to be shown as seniors to the petitioner. Thereupon, the petitioner filed Writ Petition No. 1571 of 1964. When the said Writ Petition was taken up for hearing on 16th November, 1966, there had been reported the decision of this Court in what is called Shankaraiah's case in 1965 (2) Mysore Law Journal 40, holding that what is published by the State Government as a Final Inter State Seniority List is no more than a proposal to the 'Central Government and that an actual effective Final List could only be made and published by the Central Government. Having regard to the said pronouncement, this court disposed of Writ Petition 1571 of 1964 with a direction to the Central Government to make a final list and also recording an observation that in determining the seniority of the petitioner, the opinion expressed by the State Government be borne in mind by the Central Government.
8. No such Final List appears to have been yet published. In the meanwhile, an occasion arose for making promotions from the cadre of Deputy Directors to the position of Joint Director. One S. K. Patil imp leaded as the 2nd respondent in Writ Petition 3880 of 1968 was promoted as Joint Director. Thereupon the petitioner filed the said Writ Petition 3880 of 1968 praying for the issue of an appropriate writ for maintaining the seniority of the petitioner as determined by the State Government's order dated 2nd March, 1962 and for a direction to consider his case for promotion retrospectively from the date the 2nd respondent had been promoted as Joint Director. The basis for the 2nd prayer appears to be that if an adjustment of seniority is made in terms of the order of 2nd March, 1962, the petitioner is likely to be ranked higher than Patil because of the earlier commencement of his officiation in the cadre of Deputy Directors.
9. When Writ Petition 3880 of 1968 was taken up for hearing on 15th June, 1970, it was represented on behalf of the State Government that they had already passed an order in terms of the representation made in Writ Petition 823 of 1962 and connected cases, in consequence whereof the complexion of the controversy in this Writ Petition, would change considerably. When the matter was taken up again for hearing on 29th June, 1970, it was reported that the Government had passed such an order on 17th June, 1970 and that a copy thereof had been served on Mr. S. K. Venkataranga Iyengar, learned counsel for the petitioner, on the same day. By the said order the Government have accepted the contention of the probationers for seniority above the petitioner and set aside their previous order of 2nd March, 1962 in favour of the petitioner.
10. The petitioner then filed two applications, -- one for amendment of the prayer by the addition of a prayer for quashing the later order of 17th June, 1970 and another for impleading the probationers. As we considered it better and more proper for the petitioner to file a separate Writ Petition seeking the said reliefs, we directed him to do so. The petitioner having done so, we formally admitted the Writ Petition on the following day, viz., 80th June, 1970, and gave necessary directions for expeditious service of notice and early hearing of both the Writ Petitions. After completion of service both the petitions were heard together on 28th and 29th July, 1970.
11. Although the matter has been argued at some considerable length before us by the learned counsel for the petitioner, for the probationers and the Government Pleader on behalf of the State, the settlement of the controversy as to relative seniority between the petitioner on the one hand and the probationers on the other, now turns upon the simple question which of the two orders of the State Government mentioned above, viz., those of 2nd March, 1962 and 17th June, 1970, is an effective order. The effectiveness of the order depends upon the answer to a further question whether the orders are merely in the nature of an adjudication of a controversy as to seniority between two Government servants or two set of Government servants or one of them, and if so which of them, is or amounts to laying down an enforceable condition of service.
12. It will facilitate the discussion if we quote the entire text of the order of 2nd March, 1962, which we do below;
'PROCEEDINGS OF THE GOVERNMENT OF MYSORE
Sub :-- Inter so Seniority of Officers of old Mysore in agriculture Department --Sri G. V. B. Naidu, District Agricultural Officer.
Read : Correspondence resting with Letter No. Est. 1/GO/91.795/59-60 dated 29-9-1961 from the Director of agriculture in Mysore, Bangalore.
Order No. AF. 390 AEA 59, Bangalore dated 2nd March, 1962, Phalguna 11th Saka 1883.
Sri G. V. B. Naidu, District Agricultural Officer has represented that when certain probationers were taken in the agriculture Department in 1952 he was SPT District Agricultural Officer, but still in the Inter se Seniority as also in the Inter-State Seniority list he has been shown as junior to the said probationers. It is further pointed out by him that on a previous occasion the probationers subsequently recruited were shown as juniors to promo tees i. e., Shri M. L. Subbanna and Shri H. A. Abdur Rub. The Director of agriculture who was consulted mentions that recruitment of probationers was not a regular feature and there were no definite rules in old Mysore to govern the seniority of probationers vis-a-vis- promotees in Agricultural Department. It is also stated that no ratio was laid down for promotees and probationers. It is, however, admitted that Shri M. L. Subbanna and Shri H. A. Abdur Rub were confirmed with effect from 6-12-1947 and 13-2-1948 respectively as seniors to probationers.
In the above circumstances, Government consider that the practice followed in respect of Shri M. L. Subbanna and Shri IT. A. Abdur Rub should apply to this case as well and accordingly are pleased to direct that Shri C. Ramaiah, Shri G. V. B. Naidu and Shri K. Basavaraj Urs (since retired) who were promoted to Gazetted cadre before recruitment of probationers shall be treated and always be deemed to have been treated as seniors to the following 10 probationers appointed in 1952:
1. Shri G. N. Alasingrachar,
2. Shri Y. Chandrashekhar,
3. Shri B. P. Venkataramaiah,
4. Shri N. Narasimhaiah,
5. Shri P. Basavaiah,
6. Shri H. V. Puttanaik,
7. Shri R. Dwarkinath,
8. Shri B. J. Nanjundappa,
9. Shri C. Gopalakrishna,
10. Shri R. Mahadevaiah (since deceased) The Director of agriculture is requested to take necessary action immediately to give effect to this order.
By Order and in the name
of the Governor of Mysore.
J. N. Radhakrishnan,
Under Secretary to Government
of Mysore, agriculture and
This order was communicated to the Director of agriculture as Head of the Department, the Accountant General, the petitioner, the probationers and other Government Departments concerned.
13. The later Government Order No. AF. 323 AEG 62 dated 17th June, 1970 is in the form of a long judgment discussing the facts and the arguments of the petitioner and the probationers in support of and against the previous order.
14. The facts as summarised in the second order are these : In May, 1948 the Director of agriculture reported to the Government that on account of retirement of some officers and deputation of others to other duties and the all-round increase in the activities of the Department, it was desirable to recruit six probationers. On that report, the Government decided in March, 1949 to advertise only five posts and to fill them by appointing thereto probationers after training as Assistant Directors of agriculture. Subsequently, however, the Government modified their decision and thought of recruiting ten probationers. Accordingly ten persons were selected and appointed as probationers on 30th August, 1950. Out of them, one died subsequently (as noted in the order of 2nd March, 1962 copied above), and the remaining nine are the contesting respondents. The order regarding the appointment of probationers was, according to usual practice, to the effect that persons selected are to be appointed to vacancies as they arise.
15. The main line of reasoning contained in the order in support of the ultimate conclusion in favour of the probationers is this: According to Article 65 of the Mysore Service Regulation then prevalent, a probationer was defined as a Government servant employed on probation or against a substantive vacancy in any cadre of the Department. This definition is interpreted as involving an intention to provide substantive posts to the recruits appointed on probation, so that they may not be displaced or their services dispensed with, in ordinary circumstances. The order also cites an opinion of the Assistant Accountant-General to the effect that probationers are ordinarily recruited against existing substantive vacancies or such vacancies as are anticipated to arise by the time their period of probation is completed. The order then states that only three of the ten probationers came to be appointed in what are called the clear permanent vacancies and the rest treated as officiating to be absorbed in permanent vacancies to occur in future. The order then states:--
'It is therefore amply clear from the above that it was obligatory to provide these probationers with permanent vacancies for being absorbed as Assistant Directors immediately after completion of the probationary period.'
The order then proceeds to point out that the petitioner was throughout merely officiating in the promotional post of Assistant Director, and states the inference that because he was in the first instance placed in charge of the duties of the Assistant Director of agriculture and then promoted as Officiating Assistant Director in a vacancy that existed, the implication is that the vacancy may be temporary or long standing. After stating that substantive vacancies having been reserved for probationers to be recruited, the remaining vacancies alone could be made available to others, i. e., promotees, the order states the inference that the petitioner could not have been appointed in a clear vacancy and that his appointment was only a stopgap arrangement to run the day-to-day administration of the Department. Regarding the reference in the previous order to the cases of M. L. Subbanna and H. A. Abdur Rub, the second order states that the same cannot serve as any precedent at all in favour of the petitioner because both Subbanna and Abdur Rub had been actually confirmed in the promotional posts before a direct recruitment was made.
16. From the summary given above, it becomes clear that the earlier order of the Government dated 2nd March 1962 was treated in the second order merely as a decision determining a controversy on the basis of the existing rules and the rights, if any, acquired by the contestants on the basis of those rules. Upon the merits of such controversy, the second order proceeds upon the footing that there was such an obligation incurred by the Government in favour of the probationers as to invest them with a right to secure certain vacancies and that it is only after providing them with such vacancies that the promotees can expect to occupy what may be called the surplus vacancies.
17. It appears to us that both these assumptions are unsustainable and indefensible.
18. The order of 2nd March 1962 makes it perfectly clear that at the relevant time, there were no definite rules laying down the strength of cadres or the ratio in any promotional cadre between posts to be filled by promotion and posts to be filled by direct recruitment, or providing for the determination of relative seniority between promotees and direct recruits in the same promotional order.
19. In such a situation, the principles that govern are those enunciated by the Supreme Court in the case of Nagarajan v. State of Mysore, : (1967)ILLJ698SC . That was a case in which some appointments made on the basis of rules made under the proviso to Article 309 of the Constitution with retrospective effect were struck down by this Court on the ground that the power under the said proviso did not comprise the power to make rules with retrospective or retroactive operation. The Supreme Court left that question open but assuming that such retrospective rules may be invalid and that therefore there were no rules governing the position, held that in such a situation the State Government can in exercise of its executive power under Article 162 of the Constitution make appointments and determine the conditions of service of the appointees by an executive order.
In that case, there were no specific executive orders of the State Government dealing with the situation but only advertisements or notifications issued by the Public Service Commissioner setting out the terms for recruitment and conditions of service along with certain correspondence which passed between the State Government and the Public Service Commission, on the basis of which it was inferred that the terms and conditions set out in the advertisements had the implied authority of the State Government itself. On that finding the Supreme Court upheld the validity of the appointments. The said decision was cited by the Supreme Court in a subsequent case, viz., Sant Ram v. State of Rajasthan, : (1968)IILLJ830SC , and the same position reiterated.
20. Now, if these principles are borne in mind and the legal status or legal value of the order of the Government dated 2nd March, 1962 assessed, there can be little doubt in our opinion, that the order was an executive order made in exercise of the executive power of the State Government under Article 162 of the Constitution, determining and laying down, for the first time, certain conditions of service, the position in regard to which was in doubt and remained uncovered by any previous rules laying down or regulating the conditions of service.
It is seen that the Government expressly referred to the absence of rules in regard to two matters, viz., the ratio between promotional vacancies and direct recruitment vacancies in a promotional cadre and the determination of relative seniority between promotees and direct recruits. The reason for the absence of such rules is also indicated viz., that direct recruitment of probationers was not a regular feature in the department in question.
When, therefore, the Government declared that the petitioner G. V. B. Naidu and two others Ramaiah and Basavaraja Urs, who were promotees from lower cadres to the cadre of Assistant Directors, shall be treated and always be deemed to have been treated as seniors to the probationers, they decided simultaneously both the ratio as well as the relative seniority. The ratio was settled by holding that the promotees must be deemed to have been correctly promoted and the seniority was settled by the priority in the matter of appointment, whether it be by way of promotion or by way of direct recruitment.
The reference to the previous cases of M. L. Subbanna and Abdur Rub in connection with the previous recruitment was not in our opinion, influenced by the fact that the said two promotees had been confirmed in the promotional posts before recruitment. What is of importance was the relative seniority which was determined by the Government by taking into account the date of appointment. Further the very idea of competition for a vacancy between a promote and a direct recruit cannot arise unless there is a total absence of allocation of posts between promotees and direct recruits.
Once the allocation is made, the idea of such competition is completely out of the way. The allocation results in the reservation of some vacancies for promotees and the reservation of remaining vacancies for direct recruits. When such an allocation and separate reservation has been made, the question of confirmation becomes irrelevant, because both the petitioner and the probationers were officiating in their respective posts without confirmation.
21. The entire fallacy in the second order of the Government dated 17th June, 1970 consists in the assumption that there was an obligation on the part of the Government in favour of the direct recruits and that the direct recruits acquired a right to be appointed to what the order calls permanent vacancies. The normal rule is that direct recruitment is done by a process of selection through an independent body like the Central Recruitment Board functioning in the erstwhile State of Mysore and the Public Service Commission now functioning, and the appointing authority makes appointment out of the list of selected persons prepared by such selecting body; in the matter of such appointments the normal rule is that the selecting body should arrange the selected persons in the order of merit and that the appointing authority should make appointments in that order to vacancies as they arise, viz., the first named being appointed to the first available vacancy, the second named to the next vacancy, and so on.
If the relevant rules provide that the list of selected persons shall be in force until the same is exhausted by the appointment of all the persons named therein, then no fresh selection is possible until the list is exhausted; if, however, there is no such rule or the currency of the list is limited to a specified period, then the appointing authority may ask for a fresh selection to be made even if the list is not exhausted, after the period of currency has expired where such a period is specified, or at any time if no such period is specified. This means that the right of selected persons is to get appointed in a given order if the vacancies arise and not to ask for creation of vacancies for them or to dislodge others from any vacancy in order that they may be provided in the said vacancies.
22. The other fallacy which is more fundamental is regarding the previous order as merely a decision upon a controversy between two Government servants or two sets of Government servants. The controversy as to rights can arise only if the contestants can claim acquisition of a certain right. If the contestants are Government servants and the contest is in respect of rights connected with their services, then there must be rules or practice having the force of law under which or by force of which they may claim that they have acquired a certain right in the shape of an enforceable condition of service. When, as stated in the order of the Government dated 2nd March, 1962, there were no rules at all nor any practice whereby the controversy in question could have been settled, the order must be regarded as, for the first time, creating those rights and not deciding a controversy about pre-existing competing rights.
23. We have no hesitation, therefore, in holding that the order of the Government dated 2nd March, 1962 was not a decision on a controversy relating to pre-existing rights but an order made in exercise of the executive power of the State under Article 162 of the Constitution laying down certain conditions of service of the petitioner and the probationers by settling the ratio between the promotional vacancies and direct recruitment vacancies in the cadre of Assistant Directors and also laying down a rule for determining their relative seniority.
24. We may also point out in this connection that the well-established principles for determining seniority are that seniority is ordinarily related to the points of time at which persons whose seniority is considered were appointed, that such comparison is capable of being made only as between equals or persons regarded as equals in accordance with the rules and that a specific rule is called for only in cases where several appointments are made on the same day. The precedence generally given in favour of direct recruits over the promotees is applicable when the direct recruits and the promotees are appointed on the same date to the posts in promotional cadre (see the principle in Rule 3 of the Mysore Government Servants Seniority Rules, 1957).
25. The exercise of the executive power in the manner stated above by the State Government will not interfere with or impede the exercise of the Central Government's power of integrating services under Section 115 of the States Reorganisation Act. It will be seen that both the petitioner as well as the probationers were already in regular service of Government, the former having been in the department for some years before the probationers were recruited and the probationers having been recruited in accordance with the prevalent rules for recruitment.
There was an advertisement and a selection before they were taken in as probationers. The service of both of them therefore was regular and of such a character as to acquire the normal attribute of seniority. The question that remained was the determination of relative seniority which could not be determined except by first taking the step of laying down the necessary conditions of service relating to the allocation of promotional and direct recruitment quotas in the cadre of Assistant Directors and for the determination of relative seniority as between promotees and direct recruits. So far as the integration is concerned the seniority of both has to be computed by the normal rule of length of service in the same or equated post. The decision of the State Government, therefore, aids rather than impedes integration.
26. The next argument on behalf of the probationers is that even assuming that the order of 2nd March 1962 was an order made in exercise of the executive power of the State under Article 162 laying down certain conditions of service of the parties before us, the subsequent order dated 17th June 1970 should also be regarded as one made in exercise of the same power and for the same purpose. It is next contended that if the Government have the power to make one order, they also have the power to make another order varying or rescinding the previous one and while doing so they may give retrospective effect to the later order so as to nullify the previous order.
Reliance is placed on two decisions of the Supreme Court, B. S. Vadera v. Union of India, : (1970)ILLJ499SC , where it was held that the President or the Governor acting under the proviso to Article 309 of the Constitution can make rules to operate not only prospectively but also retrospectively, and Roshan Lal v. Union of India, : (1968)ILLJ576SC where it is pointed out that though Government service may originate in a contract, the subsequent position is one of status and not of contract and that subsequent rights and obligations of a Government servant are no longer determined by consent of both parties but statute and statutory rules which may be framed and altered unilaterally by the Government.
27. It is no doubt true that according to the decision of the Supreme Court in Vadera's Case, : (1970)ILLJ499SC the power of making rules under the proviso to Article 309 of the Constitution must be equated with actual legislative power which therefore implies the inherent legislative authority to make a law both prospectively as well as retrospectively. But the fact that in the absence of rules made under the said proviso the Government could make appointments or lay down conditions of service by mere executive orders under Article 162 of the Constitution, does not mean that while doing so the executive Government acts as or in substitution of the legislature itself.
Further, the orders made under Article 162 of the Constitution, whatever may be their efficacy in given circumstances, certainly do not have the status of statutory rules. What was pointed out by the Supreme Court in Roshan Lal's case, : (1968)ILLJ576SC was that the unilateral determination of rights and obligations of Government servants without their consent could be done only by statute or statutory rules. Their Lordships do not refer to executive orders under Article 162 of the Constitution as one of the modes in which such unilateral determination could be made.
28. Hence, if by an order made in exercise of executive power under Article 162 of the Constitution the Government confers a right or enforceable condition of service, the Government cannot thereafter take away that right by a mere executive order -- Vide Shamarao v. State of Mysore AIR 1963 Mys 208. In that case, the age of superannuation determined by a certain order was sought to be abridged by a subsequent order. The Court held that the second order was bad because under the previous order the Government servant had acquired a right to hold the office till the age of superannuation thereby determined and to remove him from service prior thereto by a subsequent order would contravene Article 811 of the Constitution.
It is no doubt true that a mere readjustment of relative seniority in the same cadre may not amount to reduction in rank as was pointed out by the Supreme Court in High Court of Calcutta v. Amal Kumar, : 1SCR437 . But what was done according to our above finding by the Government by their order dated 2nd March, 1962 was not a mere readjustment of seniority on an examination of previous acquired rights but the actual determination of a service condition by fixing a proportion between the promo-tees and the direct recruits in the cadre of Assistant Directors and laying down a rule, for the first time, for determination of relative seniority between promotees and direct recruits.
29. Reliance was next placed by the learned counsel for the probationers on the orders made in 1952 appointing and posting them and the petitioner to various posts and it was argued that the order in which the officers were named therein and the dates on which they were asked to take charge of the posts to which they were posted is indicative of a determination of seniority. The argument is that we should regard the said order as one laying down a condition of service. It is not possible to accept this argument because the order of the Government dated 2nd March, 1962 clearly says that the matter was uncovered by any rules or practice until the said order came to be passed.
30. The result is that the petitioner G. V. B. Naidu is entitled to retain his seniority as determined by the order of the Government hearing No. AF 396 AEA 59 dated 2nd March, 1962.
31. In consequence, we make the following orders:--
(a) In Writ Petition 2505 of 1970, we issue a writ quashing the order of the Government bearing No. AF 323 AEG 62 dated 17th June, 1970; and
(b) In Writ Petition 3880 of 1968, we issue a writ directing the Government to consider the case of the petitioner for promotion to the post of Joint Director of agriculture on the basis that the seniority of the petitioner G. V. B. Naidu is what was determined by the order of the State Government bearing No. AF. 396 AEA 59 dated 2nd March, 1962 in the cadre of Assistant Directors.