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Suresh Kumar and anr. Vs. Union of India (Uoi), Through Secy., Ministry of Health and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 2983 of 1965
Judge
Reported inAIR1966P& H443
ActsConstitution of India - Articles 14, 16(4), 309 and 310
AppellantSuresh Kumar and anr.
RespondentUnion of India (Uoi), Through Secy., Ministry of Health and ors.
Appellant Advocate Pitam Singh Jain and; N.C. Jain, Advs.
Respondent Advocate C.D. Dewan, Deputy Advocate-General, for Nos. 1 to 3 and; Rajinder Sacher, Adv. for Nos. 4 to 13
DispositionPetition dismissed
Cases ReferredSouthern Railway v. Rangachari
Excerpt:
.....turn the tenure of a civil servant, which is prescribed in article 310 as during the pleasure of the governor or the rajpramukh, into tenure during good behaviour. the rules framed under article 309 of the constitution govern the conditions of service of all government servants to whom they purport to apply--those government servants who were already in service at the time those rules were framed as well as those recruited afterwards......it was this very ministry which had, according to the petitioners, laid down their conditions of service in annexure 'r-2' and again it is this very ministry which has changed their conditions of service by issuing annexure 'r-9 and annexure 'g' even if annexure 'r-8' could be taken to have not affected the rights of the petitioners as alleged by them it is not necessary to determine whether the interpretation put by the government on annexure 'r-6' or that placed on it by the petitioners was correct, because in the circumstances of this case it is the interpretation of the ministry of home affairs which has to prevail. this ministry could change the conditions of service of the petitioners even by issuing a fresh office memorandum.11. the contention of the petitioners that the.....
Judgment:
ORDER

P.C. Pandit, J.

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 'R-6', 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.

4. Assuming for the sake of argument that Annexure 'R-2' represented the conditions of service of the petitioners as argued by their learned counsel, the question is whether they could be altered unilaterally by the Government to the disadvantage of the petitioners. In my opinion they could be, because under Article 310 of the Constitution a person who holds a civil post under the Union holds office during the pleasure of the President. If the President pleases to frame a rule changing his conditions of service, he would be bound by the same. It is not possible to accept the contention that the rules once framed can never be altered. If the exigencies so demand, the rules can be changed. An authority which can frame a rule has undoubtedly the power to alter it, even though the change may be to the advantage of some and disadvantage of others. If it were held that any change in the rules has to be with the consent of all the employees of the Government, in the first place that might not be possible, because certain employees may be liking the change and the others not. Secondly by doing so, it will not be possible to run the administration.

5. In Full Bench decision in Ram Autar Pandey v. State of Uttar Pradesh, AIR 1962 All 328, it was held:

'(47) It will be noticed that there was nothing in the Constitution Acts of 1919 and 1935 indicating that the rule-making power conferred by those Acts could be exercised only prospectively and not retrospectively. The restriction is conspicuous by its absence in Article 309 of the Constitution also. In the Act of 1935 if a rule was altered to the disadvantage of an employee he had a right of appeal. Even this restriction was removed when Article 309 replaced Section 241 of the 1935 Act. The rule-making power conferred by Article 309 on the Governor or his nominee is, therefore, not confined to prospective rule-making and appears to be wide enough to include the making of rules with retrospective effect. In fact, if rules regulating conditions of service can be made only with prospective effect and cannot be made applicable to persons already in Government employment, administration may sometimes become impossible.

(52) The power to amend a rule and to change it, whether to the detriment or to the advantage of the employee concerned, appears to be inherent in the rule-making power of the authority concerned. The circumstances in which the power can be exercised cannot be catalogued exhaustively. It all depends on what the exigencies demand. No one can say that because a particular rule exists in a particular form on a particular date, it should remain in that form for all times to come and should not be changed even if as a matter of policy the change is necessary.'

6. In a Bench decision of the Rajasthan High Court in Kewal Mal Singhi v. Heta Ram, AIR 1952 Raj 17, Wanchoo, C. J., who delivered the judgment, observed:

'Civil servants, therefore, hold office not during good behaviour, but only during the pleasure of the Governor or the Rajpramukh, and if it pleases the Governor or Rajpramukh to frame a rule of the kind mentioned above, there would be nothing illegal in such a rule, whatever may be the moral obligation of the State in this connection. It is only certain high officers who are specially protected, like Judges of the Supreme Court and High Courts, and Auditor-General, the Members of the Public Service Commission, and such persons who come under Article 314. Article 311 cannot, therefore, be so interpreted as to turn the tenure of a civil servant, which is prescribed in Article 310 as during the pleasure of the Governor or the Rajpramukh, into tenure during good behaviour.......

* * * *We may also point in this connection that Article 309, which provides for framing of rules, also does not provide any protection to civil servants from a change in those rules, affecting them adversely. If that was the intention, we should have found something corresponding to the proviso to Article 221, which protects the allowances of a Judge, and his rights in respect of leave or absence and pension from being varied to his disadvantage after his appointment. Generally the Government, as a moral obligation, do not change the conditions of service of past employees to their disadvantage, whenever new conditions of service for future employees are framed; but that appears to us to be a moral obligation only except in the cases of those persons who are expressly protected under the Constitution.'

7. Similarly, in a Bench decision of the Mysore High Court in Mohamed Abdul Aziz v. State of Mysore, AIR 1966 Mys 61, it was laid down:

'The Rules framed under Article 309 of the Constitution govern the conditions of service of all Government servants to whom they purport to apply--those Government servants who were already in service at the time those Rules were framed as well as those recruited afterwards. The State Government servants hold office during the pleasure of the Governor subject to the protection afforded to them by Article 311. Their conditions of service can be altered unilaterally by an Act of the State Legislature or, till such an Act is enacted, by the Rules framed by the Governor The conditions of service can be altered even to the disadvantage of the Government servant after he joins the service. Under Rule 293 of Hyderabad Civil Service Rules, 1954, a Government servant can be legally compulsorily retired even though he had joined the service long before the framing of the Rules.'

8. To the same effect is a Bench decision of the Hyderabad High Court in Mohamed Hussain v. State of Hyderabad, AIR 1953 Hyd 298, where while dealing with Government servants it was stated.

'Whatever may have been the terms of their employment, the applicants are public servants and the terms of their service are always subject to the qualifications dictated by the Public policy. No matter to what service the servant may belong and no matter what position he holds in the service, such qualifications are always implied in the engagement.

* * * ** * * * * *At any rate we do not think that they can claim that the rules prevailing at the time of their employment are to be observed for all time to come. That cannot be reconciled with the principle of being employed at the pleasure of the President or the Rajpramukh .'

9. A somewhat similar view was taken in a Bench decision of this Court in Dr. Partap Singh v. Stale of Punjab. AIR 1963 Punj 298. It may be mentioned that although the appeal against this decision was accepted by the Supreme Court in AIR 1964 SC 72, this view was not dissented from

10. In view of the foregoing, I would hold that Government can unilaterally change the conditions of service of its employees, even though the change may be to the disadvantage of all or some of them. In the instant case the petitioners are basing their claim not on any rules framed under Article 309 of the Constitution, but on the instructions contained in an office memorandum issued by the Government of India, Ministry of Home Affairs, viz., Annexure 'R-2' dated 22nd of June 1949. The change in those instructions is also contained in an office memorandum (Annexure 'R-6', dated 22nd of December, 1959), issued by the same Ministry. Both the sets of instructions were issued by the Ministry of Home Affairs. It the petitioners can base their claim on Annexure 'R-2', respondents Nos. 4 to 13, who were confirmed earlier than the petitioners and thus became senior to them, can rely on Annexure 'R-6'.

It was contended by the learned counsel that Annexure 'R-6' had expressly saved the rights of the petitioners, and the Ministry of Home Affairs had wrongly interpreted this Annexure in their subsequent instructions contained in Annexure 'G', dated 19th of June, 1963, issued by respondent No. 2. Assuming for the sake of argument that the contention of the learned counsel for the petitioners regarding the interpretation of Annexure 'R-6' is correct, there is no doubt that on the record there are a number of office memoranda issued by the Ministry of Home Affairs which unambiguously clear the position that from 22nd of December, 1959 the seniority of all the employees--past or present--is to be governed by the date of their confirmation and not by the length of their service.

See in this connection inter alia Annexure 'R-9' to the return, dated 20th of April, 1961, in which it was mentioned:

'In the light of the position explained above, it is clarified that, after confirmation, the Scheduled Caste/Scheduled Tribe candidates will rank senior to the temporary/officiating officers of the grade and amongst the permanent officers of that grade their seniority will follow the order of their confirmation. It is requested that the above clarification may kindly be brought to the notice of all concerned in the Ministries, including their attached and Subordinate Offices for information and guidance.'

Similarly, in Annexure 'G' to the Writ Petition, dated 19th of June, 1963, it was mentioned:

'Further in accordance with the seniority principles contained in the office memorandum, dated 22nd of December, 1959, persons confirmed before 22nd of December 1959 should be treated en bloc senior to others confirmed after that date.'

It has to be borne in mind that the instructions contained in Annexure 'R-9' and Annexure 'G' were also issued by the Ministry of Home Affairs and it was this very Ministry which issued Annexure 'R-2 on which the petitioners are basing their claim. If instructions to the advantage of the petitioners could be issued by the Ministry, instructions to their disadvantage could also be issued by it. The fact remains that it was this very Ministry which had, according to the petitioners, laid down their conditions of service in Annexure 'R-2' and again it is this very Ministry which has changed their conditions of service by issuing Annexure 'R-9 and Annexure 'G' even if Annexure 'R-8' could be taken to have not affected the rights of the petitioners as alleged by them It is not necessary to determine whether the interpretation put by the Government on Annexure 'R-6' or that placed on it by the petitioners was correct, because in the circumstances of this case it is the interpretation of the Ministry of Home Affairs which has to prevail. This Ministry could change the conditions of service of the petitioners even by issuing a fresh office memorandum.

11. The contention of the petitioners that the above-mentioned change in the conditions of their service was violative of Articles 14 and 16 of the Constitution, being discriminatory, has no merit. No details have been given in the writ petition as to how any discrimination had been made. If this change had affected all the employees, including Scheduled Castes and Scheduled Tribes, then obviously it could not be said that any discrimination had been made. If, on the other hand, it was suggested that only the employees belonging to the Scheduled Castes/Scheduled Tribes had been given preferential treatment, then this action of the Government is in consonance with Article 16(4) of the Constitution.

In this connection reference may be made to the Supreme Court decision in General Manager, Southern Railway v. Rangachari, AIR 1962 SC 36, where it was held that reservation can be made not only in regard to appointments which are initial appointments but also in regard to selection posts which might fall to be filled by employees after their employment. This construction had the merit of interpreting the words 'appointments' and 'posts' in their broad and liberal sense and giving effect to the policy which was obviously the basis of the provisions of Article 16(4). The power of eservation which was conferred on the State under Article 16(4) could be exercised by the State in a proper case not only by providing for reservation of appointments but also by providing for reservation of selection posts. This construction would serve to give effect to the intention of the Constitution-makers to make adequate safeguard for the advancement of backward classes and to secure for their adequate representation in the services.

12. So far as the submission of the counsel for the petitioners that Annexure 'R-2' was law' as defined in Article 13(3)(a) of the Constitution is concerned, in the first place this point was not taken in the writ petition. Secondly there does not seem to be any substance in the same, because Annexure 'R-2' as also Annexures 'R-6', 'R-9' and 'G' were all issued by the Government of India, Ministry of Home Affairs.

13. It may be stated that the counsel for the respondents strenuously argued that the Government instructions contained in Annexures 'R-2', 'R-6', 'R-9' and 'G' were merely administrative in nature and conferred no legal rights on the petitioners which had been infringed. No writ petition was, therefore, competent in the instant case. It is needless to discuss this point, because it was conceded by the counsel for the petitioners that if it was held that the service conditions of an employee could be changed unilaterally by the Government to his detriment, then this petition will be without any merit and no other question would arise for decision.

14. In view of what I have said above, this petition fails and is dismissed There will, however, be no order as to costs.


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