Tek Chand, J.
1.This is a petition under Articles 226 and 227 of the Constitution of India for the issuance of an appropriate writ of certiorari or mandamus and for quashing the order dated 11th of August, 1966, Annexure A-15, passed by the State of Punjab (respondent No. 1). There is also a prayer for a writ of mandamus to the respondents directing them to fix the pay of the petitioner by allowing him the war service benefits. The Director. Animal Husbandry, Punjab, is the second respondent.
2. The petitioner has been serving as Veterinary Assistant Surgeon in the Civil Veterinary Department of Punjab from 1942. In the exercise of the powers conferred by Section 241 of the Government of India Act, 1935, the Governor of Punjab framed rules known as the Government War Service Amendment Rules. The object of these rules was to induce persons to volunteer themselves for service for military duty in the Indian Veterinary Corps during the last war and certain attractive terms were offered. The Veterinary Assistants or Veterinary Assistant Surgeons who offered themselves for service in the Indian Army Veterinary Corps were allowed to retain their liens as well as seniority on the gradation list. The period spent by such personnel on approved active service while on military duty was to count double for pay and promotion (including the seniority in the Civil Veterinary Department) vide Annexure A-1.
The petitioner volunteered his services in the Second World War and served in the I. A. V. S., from April, 1942 to the 8th of December, 1948. On 11th of December, 1948, the petitioner addressed a communication to the Deputy Superintendent, Civil Veterinary Department, Kangra, asking for the fixation of his pay and seniority in accordance with the concessions given under the War Service Rules referred to above, vide Annexure A-2. This matter remained pending with the Government for very many years. On 9th of May, 1957, the petitioner was given his seniority in accordance with the rules but no decision about the fixation of his pay was communicated to him. He stated that he remained under the impression that the matter was being processed in the different departments of the Government.
3. In the meanwhile, another colleague of the petitioner who had served in identical conditions and who had also volunteered his services for military service had also made a similar representation for getting the benefits of pay and seniority. The petitioner says that it was in February, 1963, that he came to know that Shri Jagat Singh had been sanctioned his pay and seniority in accordance with those rules. The Government's decision in respect of Shri Jagat Singh was mentioned in a copy of letter from the Accountant General dated 6th oi February, 1962, vide Annexure A-3. It was stated that Shri Jagat Singh's service on military duty would count double for pay and promotion including seniority in the Civil Veterinary Department. It was consequently decided that he should be allowed benefit of pay in the relevant graded scale/time scale of pay for double the period as shown in the communication. Reference may also be made to copy of the Memo dated 9th of June, 1962 (Annexure A-4) indicating compliance.
4. On the concessions having been granted to Shri Jagat Singh the petitioner also made enquiries as to what had happened in his case and he learnt that his request had been rejected by means of a letter from the Assistant Accounts Officer dated 1st of February, 1956. The petitioner's contention is that this was for the first time that he came to know, while on his own he was making enquiries, as to the fate of his case This communication is Annexure A-5 which is a copy of letter from the Assistant Accounts Officer, Simla, to the Director of Animal Husbandry Simla and forwarded to the Deputy Director, Animal Husbandry, Ambala City.
This letter is reproduced below in extenso: 'Subject: War Service concessions to Shri Ram Rattan V. A. S.
The service book of Sh. Ram Rattan along with connected paper is returned with the remarks that his presumption that the official is not entitled to any benefit as he was originally appointed at fixed pay is correct.
Assistant Accounts Officer'.
The Memo as it reads does not make much sense till one reads the word 'his' before presumption in the third line as referring to the noting official. In this manner, the Memo means that the Assistant Accounts Officer agrees that the presumption of the noting official was correct to the effect that Shri Ram Rattan, petitioner, was not entitled to any benefit as he was originally appointed at fixed pay. This obviously was not an order but a suggestion which the Assistant Accounts Officer forwarded to the Deputy Director for information and necessary action. There is nothing to suggest on the face of this Memo that this was sent to the petitioner From the perusal of A-5 it appears that the suggestion was made for the Deputy Director only. According to the petitioner, he was never communicated the decision of the Government and no reference has been made in the return of the respondents to any particular order rejecting the request of the petitioner for being given the benefit of the War Service Rules which might have been communicated to him. On coming to know of this communication (Annexure A-5), the petitioner submitted a representation in February, 1963, to the second respondent for fixation of his pay, vide Annexure A-7.
There is a noting by the Deputy Director, Animal Husbandry, dated 21st of March, 1963, that the claim of the petitioner was genuine and should be confirmed. When the matter came to the notice of the Accountant General, Punjab, he also expressed the view that the petitioner was entitled to the benefit claimed. The Accountant General, in his communication to the Under Secretary to Government, Punjab, dated 5th October, 1963 (Annexure A-8) while forwarding the petitioner's case, said, that on the analogy of the case of Shri Jagat Singh decided by the Punjab Government, the case of the petitioner should be similarly decided.
5. In the meanwhile, the Punjab Government through the Chief Secretary had issued executive instructions withdrawing the concessions, granted on account of previous war service to the personnel concerned. Para 2 of this letter is as under:
'In this connection it is observed that the war service personnel who were affected by the above orders were not to be left to their discretion to apply for the grant of concession whenever they liked but it was presumed that the officials concerned would prefer their claims soon after they had entered service. As the Punjab Government Services (War) Amendment Rules, 1953, were cancelled with effect from 21st January, 1953 and thereafter enough time has been given for preferring claims, Government have decided that any claims for the grant of war service concessions put forward after the 31st October, 1956, should not be considered. If, however, there were some claims which had been put forward before thin date, but which were for one reason or another pending decision, final decision in regard to such cases should be taken as speedily as possible and such cases should not be considered time-barred'
6. The Director of Animal Husbandry in his letter addressed to the Punjab Government dated 27th of November, 1963, mentioned:--
'the claim of Shri Ram Rattan Bakshi is hanging fire since the year 1951 and could not be finalised earlier for various reasons. This case cannot, therefore, be considered time-barred. Necessary concurrence of the Finance Department to the fixation of pay as proposed by the Accountant General, Punjab, may please be obtained and communicated.' (vide Annexure A-10).
By a letter dated 1st oi September, 1964, respondent No. 1 informed the petitioner that he could not be given the benefits which had been given to Shri Jagat Singh vide Annexure A-11. The reason given for distinguishing the petitioner's case from that of Shri Jagat Singh was that the case of Ram Rattan Bakshi had been closed in 1956 by the department while in the case of Shri Jagat Singh, the matter remained under correspondence throughout
since 1955 to the date of the decision. For this reason, it was stated that the petitioner's case could not be considered as pending and reference was made to the general instructions issued by the Chief Secretary dated lst/8th of March, 1958 (Annexure A-9),
(7) On the receipt of this communication, the petitioner submitted an appeal on 1st of November, 1964, vide Annexure A-12. In this, he set out his case in detail and also mentioned that he never received any intimation that his case for war service benefits had been turned down on the plea that his case was closed in 1956, He also challenged the factual correctness of that statement His grievance was that he was never informed that his case had been rejected whereas Shri Jagat Singh who was identically circumstanced was given the benefit. He also asserted that he had been making claims and sending representations long before, and subsequent to, 31st of October, 1956 The Director of Animal Husbandry Punjab, respondent No. 2, recommended the representation of the petitioner and he stated therein that the claim of the petitioner should be finalised and not considered as time-barred. He also stated that the claim of Shri Jagat Singh to the war service benefit had been allowed and it was similar to the case of the petitioner. Ram Rattan Bakshi. He asked the Government to reconsider the case of Shri Bakshi favourably on the analogy of the case of Shri Jagat Singh vide Annexure A-13.
8. By another communication dated 29th of June, 1965 (Annexure A-14) the Director, Animal Husbandry, put in a forceful plea on behalf of the petitioner and inter alia said--
'The case of Shri R. R. Bakshi and others were of course dropped on the advice of Accountant General, Punjab, who held that since these officials were appointed on fixed pay, their cases were not covered by the Government instructions for the grant of War Service benefits. But these officials should not suffer on any account while their contemporary, similar situated has already been allowed benefits by the Punjab Government. If their cases are not treated alike, it will create an anomalous position, besides creating heart burning amongst the officials concerned....In view of what has been explained above, I reiterate my proposal already sent to the Government vide this Office memo. No. 311-E-3/95. I. B. dated 5-2-1965 and strongly recommend that Shri R. R. Bakshi, P. V. S. II, District Animal Husbandry Officer, at Dharamsala, may be allowed the war service benefits on the analogy of S. Jagat Singh referred to in the foregoing paragraphs and his pay re-fixed accordingly'.
9. On 29th of August, 1966, the Government replied that the decision taken in the case of Shri Jagat Singh could not be applied to the case of Shri R. R. Bakshi whose case had already been closed finally in the year 1956 and was not pending in terms of the instructions contained in the Punjab Government letter No. 470-PI (C)-58/6864, dated the 1st/8th March, 1958. It is this final order from which the petitioner feels aggrieved and which he prays should be struck down.
10. Two returns have been filed on behalf of the respondents. According, to the affidavit of Shri S. S. Grewal on behalf of the Punjab State, it was stated that executive instructions had been issued by the Government dated 1st/ 8th March, 1958 (Annexure A-9) that the claim put forth by the officials for the grant of war service concessions after 31st of October, 1956, should not be considered. It was said that the petitioner had put forth his claim which was finally decided before 31st of October, 1956. It was also stated in reply to Para 14 of the petition that the petitioner was informed by respondent No. 1 that the Government could not give him the benefits which they had given to Shri Jagat Singh for the reason that the petitioner's case was closed in 1956 by the department while the case of Shri Jagat Singh remained under correspondence.
11. It may be mentioned that there is no reference to the number or date of the communication, if any, by which the petitioner might have been informed of the Government's decision. No document was cited in the written statement. No receipt from the petitioner has been produced. In short, there is no document to which reference has been made on the basis of which it could be said that intimation had been sent to the petitioner. It was also stated that the petitioner was guilty of laches.
12. In the affidavit filed by Shri Harbhajan Singh, respondent No. 2, it was stated in Para 9 that:--
'Accountant General, Punjab, vide his letter dated 1-2-1956 informed that the petitioner is not entitled to any benefit and he was informed accordingly vide this office endorsement dated 9-2-1956 (copy enclosed)'.
This statement does not appear to be correct because the enforcement referred to (Annexure A-5) to which reference has already been made was a Memo, from the Assistant Accounts Officer and was forwarded to the Deputy Director. This communication did not purport to send any intimation to the petitioner.
13. On the above facts, the petitioner has vested his prayer stating that the Government's decision was without jurisdiction, ultra vires and contrary to the Government War Service Amendment Rules which had the force of the statute, and to the benefits of which, the petitioner was entitled. His contention was that his case was in no way different from that of Shri Jagat Singh and he has been, by being deprived of similar benefits, discriminated against. There is no gainsaying the fact that the petitioner has been agitating ever since 1948 and has been making several representations. It was also urged that the statutory rules framed under Section 241 of the Government of India Act, 1935, giving concessions to those who volunteered for war service could not be contravened by a circular letter of the Government.
In any case, the petitioner had earned the relief long before, and he was entitled to the benefits automatically, without the necessity of putting any claim. There was no direction mat the benefits would be withheld from those who would not submit any claim or that theclaim had to be submitted by a particular date. The fixation of the date of 31st of October, 1956, was an arbitrary decision and was not based on any rational or reasonable classification. It appears to me that the petitioner was entitled to the benefits given to him by the statutory rules and he has been kept out of those benefits wrongly. It is also established that he has been discriminated against and he has been denied the protection of Articles 14 and 16 of the Constitution. Statutory benefits are to be rendered by the Government and the concessions granted to persons under the rules cannot be withheld because the Government has not been prompt enough in rendering the dues to those who were entitled. The benefits had been earned by the petitioner in 1948. He made a representation soon after and continued sending further representations.
It was not within the jurisdiction of the Government to issue instructions whereby the benefits under the statutory rules could be taken away. In this case, the petitioner was not even communicated the result of his representations and was not told that the Government had taken such a decision. No circular letters (Annexure A/9) can abridge the rights conferred by the statutory rules. It was contended that the petitioner had been guilty of laches. This is entirely wrong. On the other hand, the Government owed to the petitioner a statutory obligation and it had not to wait before discharging that obligation, for a claim to be made by the petitioner. In this case, however, a claim was made at a very early stage and the claim was repeated. It does not lie with the State to say that because justice had been delayed to the petitioner for so many years, it should, therefore, be denied to him. The point of view of the petitioner that he was entitled to the benefits of the statutory rules was supported by the Accountant-General, Punjab, vide Annexure A/8 and by the Director, Animal Husbandry, respondent No. 2, vide Annexures A/10, A/13 and A/14.
14. It is well settled proposition that equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State is confined not only to the initial appointments but includes also the terms and conditions of service as well as promotion to selection posts. If the opportunity mentioned in Article 16 were confined only to the initial appointments and not to subsequent promotions and conditions of service, the equality guaranteed by Article 16 would in actual practice, in a large number of cases, become illusory and lose all effectiveness. The object of securing fair play in the services could then be set at naught with impunity subsequent to the first appointment. This was expressed in a Full Bench decision of this Court in Brij Lal Goswami v. State of Punjab, 1965 Cur LJ (Punj) 232 = (AIR 1965 Punj 401) (FB). Moreover, it is also well settled that no departmental instructions can override statutory rules. The Government cannot refuse or deny to the petitioner the benefits of a statutory rule by subsequently contravening it by issuing departmental instructions. This is a case in whichjustice has been denied to the petitioner for nearly two decades whereas, under identical conditions, the benefit to which Shri Jagat Singh was entitled, was allowed to him. I find no justification whatever for discriminating against the petitioner.
15. The result is that the petition is allowed. The order of respondent No. 1 dated 11th of August, 1966 (Annexure A/15) is quashed. A writ of mandamus shall issue to the respondents to fix the pay of the petitioner by allowing him war service benefits in the same manner as was allowed to Shri Jagat Singh. The petitioner is entitled to his costs against respondent No. 1 which are fixed at Rs. 200.