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M. Nazir Ahmed and ors. Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtDelhi High Court
Decided On
Case NumberCivil Writ Petition Appeal No. 941 of 1972
Judge
Reported inILR1976Delhi240; 1977LabIC688
ActsConstitution of India - Article 77(3); ;Central Civil Services (Temporary Service) Rules, 1949; defense Services (Temporary Service) Rules, 1949
AppellantM. Nazir Ahmed and ors.
RespondentUnion of India and ors.
Advocates: S.N. Marwah,; A.K. Marwaha,; S. Pappu and;
Excerpt:
(i) government servant--determination of seniority in a government service grade--home ministry's memorandum of 1949--whether a reversal of normal practice--whether to serve as model and guide-line for all services--memorandum of 1959--whether a revision to normal practice--whether had retrospective effect--petitioners' grievance and demand--whether justified.; between 1951 and 1958 petitioners were transferred to the armed forces headquarters as lower division clerks. at that time there were direct recruits working there. the 'inetr se' seniority of the petitioners and the recruits was determined on the basis on normal practice, viz., the dates of confirmation in the grade. petitioner contended that, pursuantly to the memorandum issued by the ministry of home affairs in 1949, their..........the rules of seniority for other services and in respect of persons employed in any particular grade, seniority should as a general rule be determined on the basis of the length of service in that grade as well as service in an equivalent grade, irrespective of whether the latter was under the central or the provincial government in india or pakistan'. it embodies a further decision to define the service in an equivalent grade to mean a service on a rate of pay higher than the minimum of the time scale of the grade concerned. it must, thereforee, be held that the 1949 memorandum incorporated a binding instructions for the various ministries and services and they were, thereforee, bound to frame rules broadly conforming to the model indicated in the memorandum. it follows a fortiori.....
Judgment:

H.L. Anand, J.

(1) This judgment will dispose of C.W. 192. of 1972 and C.W. 941 of 1972, by two groups of Upper Division Clerks working in the Armed Forces Headquarters, which raise two common questions, viz.: (a) whether on absorption in the Armed Forces Headquarters between 1951 to 1958 as Lower Division Clerks on transfer from office and formations subordinate to the Ministry of defense their seniority should have been determined on the basis of length of service in the grade in the Afhq or in an equivalent grade outside the Afhq rather than on the date of confirmation in that grade, (b) If the first question is answered in favor of the petitioners, whether there has been such delay in raising the matter which disentitles to them to relief.

(2) Between 1951 58, the several petitioners were absorbed as Lower Division Clerks in the A.F.H.Q. on transfer from offices and formations subordinate to the Ministry of defense. When the petitioners were transferred to the Armed Forces Headquarters, there were numerous direct recruits working in the headquarters. The inter se seniority of the petitioners and the direct recruits in the Armed Forces Headquarters was determined on the basis of the normal practice prevalent in that behalf in service under the State, i.e., the date of confirmation in the grade and, thereforee, without taking into consideration the entire length of service of the petitioners before their transfer to the headquarters.

(3) It is a common case of the parties that, with a view to safeguard, the interests of thousands of displaced Government Servants, who were appointed to Central Services after the partition of India, a departure was made from the normal rule in regard to the determination of seniority when the Ministry of Home Affairs issued certain instructions contained in their memorandum of 22nd June, 1949, hereinafter to be referred as 'the 49 Memorandum', which visualised that the seniority in a grade was to be determined as a general rule on the basis of continuous length of service in a grade or in an equivalent grade, the term ' service in an equivalent grade' being defined as service on a rate of pay higher than the minimum time-scale of grade concerned, irrespective of whether it was rendered in the Central or Provincial Government of India or Pakistan. It is also a common case of the parties that although the instructions contained in the 1949 Memorandum were initially intended to have limited application to the displaced Government Servants, who were absorbed in Central Services, the same were eventually made applicable to other categories of persons who were appointed to Central Services. It is also not in dispute that the instructions contained in the 1949 Memorandum continued to govern the determination of seniority of the Central Government employees until the policy was reversed and the normal rule was restored with the Ministry of Home Affairs Memorandum of December 22, 1959, hereinafter to be referred as 'the 1959 Memorandum'. The reversion was a sequel to the realisation by the Government that in course of time the displaced Government Servants, whose peculiar problem had led to the departure from the normal rule, had, by and large, been absorbed in the various Central Services and their seniority had been fixed with reference to the length of service rendered by them, making the continuance of the departure unnecessary. In the case of Union of India and others v. M. Ravi Varma and others, : [1972]2SCR992 , the Supreme Court was called upon to consider whether the criterion to determine the seniority of the respondents in the appeals before it should be 'length of service' in accordance with 'the 1949 Memorandum ' or 'the date of confirmation' as envisaged in the 1959 Memorandum. The Supreme Court held that except in certain cases, with which the Court was not concerned, the general principles embodied in the annexure to the 1959 Memorandum did not have retrospective effect and could not apply to persons appointed to, the I various Central Services before that date. It is again a common case of the parties that pursuant to the aforesaid decision which was rendered on January 4, 1972 Government decided to review the cases of seniority, confirmation and promotion of various categories of staff to bring it in accord with the decision and certain principles were evolved for the purpose which are set out in a Memorandum of the Department of Personnel dated July 22, 1972.

(4) In the backdrop of the admitted hypotheses, the petitioners contend that interms of the Rules of Business framed under Article 77(3) of the Constitution for the allocation of Government business, the broad policy laid down from time to time by the Ministry of Home Affairs, and more recently by its counterpart, with regard to the methods of recruitment to the services, promotion, etc. and matters connected therewith is binding on all Ministries, that the Ministry of defense was thereforee, bound to give effect to the rules laid down in the Memorandum of 1949; that the seniority of the petitioners vis-a-vis. their counterparts, who were already in the Armed Forces Headquarters in the grade of Lower Division Clerks, ought to have been determined on the basis of the entire length of service of the petitioners in the grade in A.F.H.Q. or in an equivalent grade outside the A.F.H.Q. in accordance with the 1949 Memorandum and not on the basis of their date of confirmation in the grade in A. F. H. Q. as was erroneously done that the principle embodied in the 1949 Memorandum had in any event been adopted by the Ministry of defense in its Memorandum of September 25, 1950, hereinafter to be referred as the '1950 Memorandum', as clarified in C.A.O.'s Bulletin No. 177 of November 1950, hereinafter to be referred as 'the Bulletin No. 77'; that the change brought about in the principles in the Ministry of defense Memorandum of August 12, 1959, hereinafter to be referred as the 'August 1959 Memorandum', a virtual precursor of the 1959 Memorandum, could not be given retrospective operation as construed by the Supreme Court and that the August 1959 Memorandum as well as the subsequent Memorandum of the Ministry of defense of December 21, 1963, hereinafter to be referred as the '1963 Memorandum', are had in so far as they purport to affect the basis of determination of seniority of the petitioners to the extent of inconsistency with the 1949 Memorandum. The petitioners, thereforee, pray that the relevant seniority list drawn on the basis of the erroneous criterion should be quashed, the seniority of the petitioners and the respondents be re-determined on the basis of the 1949 Memorandum and the petitioners be given consequential relief in the matter of their confirmation in the grade of Lower Division Clerks and in the higher grade of Upper Division Clerks with the corresponding benefit of future promotions on the correct determination of the seniority.

(5) The claim of the petitioners is opposed by the Union and in the course of the return to the Rules filed on its behalf, as also at the hearing of the petitions, it was contended that the petitions were liable to be dismissed on the ground of delay as the petitions were seeking to challenge the determination of the seniority of the petitioners which was fixed in the grade of Lower Division Clerk in the Armed Forces Headquarters as far back as 1959-1963 and 'that on that basis the petitioners and others had long since been promoted to the next higher grade of Upper Division Clerk and some of the respondents had even been promoted to the still next higher grade of Assistant as far back as February 1972. It is, thereforee, contended that the petitioner could not be allowed to reopen the matter after a lapse of over 12 years. On the merits it is contended that the 1949 Memorandum was inapplicable to Upper Division Clerks in the Armed Forces Headquarters and that it merely enjoined that the principles laid down in it should 'generally be taken as model in framing the rules of seniority for various services under the Central Government' thereby leaving the cadre controlling authority free to issue proper instructions for the purpose and that the Ministry of defense was, thereforee, justified in issuing instructions for the determination of seniority and confirmation in the various cadres and that the seniority of the petitioners and others was determined in accordance with those instructions. It was, thereforee, claimed that the seniority of the petitioners vis-a-vis their counterparts in the A. F. H. Q. was correctly determined on their absorption in the grade of Lower Division Clerks in accordance with the date of confirmation in the grade and no exception could be taken to it. The contention that the policy laid down in the 1949 Memorandum had been adopted in 1950 was repelled. The further contention that the instructions issued by the Ministry of defense from time to time with regard to the determination of seniority were illegal to the extent of inconsistency with the 1949 Memorandum was also repelled. Lastly, it was urged that the petitioners were not entitled to any relief because during the lapse of almost over 12 years a large number of confirmations and promotions had already been made and that it would neither be in the interest of justice nor proper to disturb the arrangements. It was also alleged that the petitioners had themselves given up their plea for reopening the matter and had merely sodght revision of the seniority policy for the future in their various representations on the subject.

(6) Whether the seniority of the petitioners and their counterparts in the A.F.H.Q. was to be determined on the basis of length of service in the grade of Lower Division Clerks, whether in the A.F.H.Q. or outside it, in accordance with the 1949 Memorandum or on the basis of date of confirmation in the grade, as claimed by the Union, is the first question that must be considered.

(7) It appears to me that the constitutional provisions regarding the nature and security of tenure of the various services treated the civilians in defense service at par with those holding civil posts in the matter of security of tenure, the applicability of the pleasure doctrine and the ambit of the constitutional protection and the Ministry of Home Affairs, and subsequently its counterpart, the Department of Personnel in the Cabinet Secretariat, throughout laid down broad guidelines with regard to the recruitment to civil services and all civil posts as also with regard to the conditions of service including determination of seniority, confirmation, promotion, disciplinary matters, removal, retirement, etc., which were more or less of universal application or represented a model to be suitably adapted for the various distinct branches of the civil services. It further appears that even though until recently the civilians in defense were regulated by different set of rules, by and large, they conformed to the rules applicable to the civil services and there has since been an integration of the' rules. For instance, until 1970 temporary civilions in defense Services were governed not by the Central Civil Services (Temporary Service) Rules, 1949, but by their counterpart, defense Services (Temporary Service) Rules, 1949. In 1970, the Central Civil Services (Temporary Service) Rules, 1960 were amended so as to apply these rules to persons holding 'a civilian post in the defense services'. In the same way, in 1965, when the Central Civil Services (Classification, Control and Appeal) Rules, 1965, were promulgated, an integration was brought about and the expression 'Central Civil Service' and 'Central Civil Post' to which the rules applied was defined to include 'a civilian service or civil post, as the case may be, of the corresponding class in the defense services'.

(8) Ananalysis of the 1949 Memorandum also leaves no manner of doubt that it was intended to lay down a broad guideline in the matter of determination of seniority of displaced government servants who had been absorbed temporarily in the various services under the Central Government and embodies a decision that the instructions issued with regard to the Assistant's grade of the Central Secretariat Service, an extract of which was enclosed with the Memorandum, 'should generally be taken as the model in framing the rules of seniority for other services and in respect of persons employed in any particular grade, seniority should as a general rule be determined on the basis of the length of service in that grade as well as service in an equivalent grade, irrespective of whether the latter was under the Central or the provincial government in India or Pakistan'. It embodies a further decision to define the service in an equivalent grade to mean a service on a rate of pay higher than the minimum of the time scale of the grade concerned. It must, thereforee, be held that the 1949 Memorandum incorporated a binding instructions for the various Ministries and Services and they were, thereforee, bound to frame rules broadly conforming to the model indicated in the Memorandum. It follows a fortiori that when the scope of the instructions embodied in the Memo. was eventually extended by Government to other categories 01 persons appointed to Central Services, it carried a corresponding obligation on the various Ministries concerned with different services to frame rules with regard to determination of seniority on the basis of. the entire length of service in the grade, whether in the establishment or outside it, and in an equivalent grade. The Memorandum and the extension of the policy embodied in it to categories of employees other than displaced persons did not, however, prevent the Ministries and Services concerned to frame their respective rules or to issue corresponding instructions with regard to the determination of seniority inter se between the various categories and to regulate their future service in accordance therewith.

(9) The next question that requires consideration is whether any of the instructions issued by the Ministry of defense from time to time with regard to determination of seniority could be said to have been inconsistent with the guidelines contained in the 1949 Memorandum. Even a cursory glance at the 1950 Memorandum, as illustrated in CAO's Bulletin No. 177, would indicate that, so far as the Lower Division Clerks are concerned, according to para 6 of Annexure Iii to the Memorandum, seniority had to be fixed 'in accordance with the length of service in that grade or in an equivalent grade in A.F.H.Q. or outside A.F.H.Q.' It further postulates that 'any service rendered in a scale of pay exceeding Rs. 55 p.m. will be treated as service in a grade equivalent to the Lower Division Clerks grade in the case of persons not serving in A.F.H.Q.' This was consistent with the model provided in the 1949 Memorandum. A comparison of the 1950 Memorandum with the August 1959 Memorandum also leaves no manner of doubt that the latter Memorandum, and the instructions contained in Annexure Ii to it, contained a clear departure from the policy incorporated in the earlier instructions. The instructions contained in the August 1959 Memorandum were not and could not be said to be consistent with the model provided by the 1949 Memorandum and is, to a large extent, a reversal of the policy embodied in the 1949 Memorandum and could be considered as a reversion to the normal principle of determination of seniority. That is exactly what was intended to be accomplished by the 1959 Memorandum. To the extent of inconsistency with the 1949 Memorandum, the .August 1959 Memorandum could not possibly prevail so as to deprive the civilians in defense of the benefit of the 1950 Memorandum. What is true of the August 1959 Memorandum is equally true of the 1963 Memorandum. 'The conten corporation raised on behalf of the Union that, even though the August 1959 Memorandum and the 1963 Memorandum represented a drastic departure from that 1949 Memorandum, it was nevertheless unexceptionable because all that was required by the 1949 Memorandum was that the Services concerned should issue instructions and frame rules broadly conforming to the 'model' contained in the 1949 Memorandum and that this requirement was satisfied, appears to me to be devoid of any force. A model or a broad guideline is intended to indicate the basic features to which the structure must conform. A structure must be consistent with the broad lines of the model. Otherwise it cannot be said to be based on the model. The August 1959 Memorandum, thereforee, could not be said to conform to the model provided by the 1949 Memorandum and to the extent of inconsistency is, thereforee, invalid. It conforms to the 1959 Memorandum which was issued in December 1959 but this would not cure its inconsistency in relation to the period during which it was required to conform to the 1949 Memorandum. The departure represented by the August 1959 Memorandum could not be given retrospective effect on parity of reasoning on which the Supreme Court held the 1959 Memorandum to be prospective. When the Supreme Court held in the case of Ravi Verma (supra) that the 1959 Memorandum of the Home Ministry was not retrospective but was prospective and revised policy on that basis was announced by the Department of Personnel in their Memorandum of July 22, 1972, the rationale of this policy was with the same force applicable to the civilians in defense and effect should have, thereforee, been given to those instructions and the denial to the petitioners of the benefit of the revised policy in the matter of determination of seniority has certainly caused injustice to them vis-a-vis their colleagues who were either direct entrants or were throughout in the Armed Forces Headquarters.

(10) The only question that remains to be considered is whether there has been any delay in seeking relief from this Court and if so, its impact on the maintainability of the petitions or entitlement to relief. The petitioners were absorbed as Lower Division Clerks between 1951 to 1958. The seniority of the petitioners vis-a-vis the respondents was fixed between 1959 -1963. The petitions were filed in 1972 after a lapse of over 10/12 years. Meanwhile, the petitioners as well as the respondents were promoted as Upper Division Clerks on the basis of the said seniority and the respondents have, by virtue of superior seniority, been promoted as Assistants. It is true that some of their representations remained under consideration but a reference to the representations leaves no manner of doubt that the plea of the petitioners with regard to the seniority determined in the past, confirmations made on that basis and promotions that have taken place thereafter, were not sought to be disturbed and the only plea that survived was that the service rules in the future should be made in such a way that the benefit of past service may be given to them during the future tenure of service. Apparently, the plea to rake up all that had happened in the past was given up obviously because such a bourse would have created considerable complications, caused dislocation besides frustrating hundreds of employees who had not only been confirmed in the next higher grade but had even been promoted to the one next higher to it. The contention of the petitioners that they had not moved the court earlier because the correct interpretation of the two Memorandums was itself the subject matter of considerable controversy and the position was crystallized only after the decision of the Supreme Court was known and that the petitioners could not have rushed to the court earlier does not appear to me to change the position. The decision of the Supreme Court did not make prospective what was retrospective. The Supreme Court was not called upon to make any law. It merely interpreter what the law had always been. The petitioners are unable to explain why they gave up the plea for the re-determination of seniority ab initio at the time of their absorption in the A.F.H.Q. in the course of their various representations which seem to indicate that they were, contented with a decision in their favor as from the future and had realised the futility of a plea to virtually 'unscramble' a scrambled egg. Any attempt to re-determine seniority with retrospective effect, as claimed by the petitioners, is bound to create considerable dislocation, complications and in the process, bound to cause heart burning and frustration which would be wholly undeserved so far as the respondents are concerned because it could not be said that these confirmations and promotions had been contrived by them.

(11) It is true that there is no period of limitation prescribed for a petition under Article 226 of the Constitution. As has been often pointed out in such cases the sole criterion is if there has been grave injustice or transgression of a fundamental right or commission of an arbitrary executive act which needs to be dealt with. In such cases, thereforee, there can never be a higher or a lower limit. Even so, delay in seeking discretionary remedies is capable of defeating the right to such remedies. It is equally well-settled that mere delay in seeking relief in such cases is not necessarily fatal to the petition nor does it in any way impinge on the jurisdiction of this court under Article 226 of the Constitution of India to grant appropriate relief. Delay in such cases is one of the factors to be considered and the court may in a fit case grant relief even though there may be considerable delay, if the case represents features which make such relief imperative. While it could not, thereforee, be said that the petitions were not maintainable on account of delay and should, thereforee, be thrown out on that ground, the drastic change brought about in the context by the delay in seeking relief from this court would appear to me to disentitle the petitioners to any relief because to give such a relief would cause dislocation, complications and undeserved frustration among the service which would apparently be out of all proportions to the relief one could give to the petitioners. The mere pendency of extra-legal representations, assuming that the representations had sought a reopening of the position, would not, to my mind, make any qualitative change in the situation.

(12) That is, however, not to say that injustice has not been done to the petitioners. That they have been deprived of the benefit of past service in an equivalent grade cannot be denied, even though a large number of similarly situated persons in civil service as well as in civilian posts in defense were given that benefit. On the other hand, the difficulties beset in any course to disturb the seniority, confirmations and promotions cannot be ignored. There is, thereforee, a strong case for executive review at an appropriate level within a reasonable period with a view to consider what, if any, modifications can be made, consistent with the need to give relief to the petitioners, within the limits they are entitled to it, but without causing unnecessary disturbance in all that has already been accomplished over the years. I have no doubt in my mind that a reconsideration of the matter by the authorities in consultation with the petitioners or their representatives would enable the authorities to evolve a formula which may give some relief to the petitioners, even while keeping in view the claims of the respondents, in such a way that it does not lead to further complications or cause unnecessary frustration or heart burning which may be inconducive to the maintenance of an efficient and effective service. It must. however, be added that these observations represent only a pious wish of the Court and is neither .a direction nor would be considered as conferring any right on the petitioners of casting any corresponding legal obligation on the authorities. Unfortunately for the petitioners the constraints of law do not permit this Court to go with them beyond this.

(13) Subject to the aforesaid observations the petitions fail and are hereby dismissed but, in the peculiar circumstances, without costs.


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