A.B. Rohatgi, J.
(1) These two writ petitions substantially raise one question. That is about the validity of the combined seniority list dated 21st April 1979 which was framed in pursuance of the letter of the Government of India dated 6th October 1978. In the last analysis it is the validity of the letter dated 6th October, 1978 which is in question in these two petitions.
(2) For the sake of convenience I will take up Civil Writ Petition No. 977 of 1979 first. Kishan Das and Brij Lal are the two petitioners in this case. They were denied the Selection Grade of Pharmacist by the Union of India, Ministry of Health and Family Welfare. So they filed this petition claiming the selection grade.
(3) In the Central Government Health Scheme (C.G.H.S.) there were the following posts of Pharmacists Grade-11, Pharmacists, Pharmacists-cum-Clerk/Store-Keeper and lastly the Selection Grade. Prior to the Third Pay Commission their scales of pay were much lower. The Third Pay Commission raised, their pay. The recommendations of the Pay Commission were given effect to on 1-1-1973 and the Pay Scales were revised. The following table gives the Pay Scale prior to 1-1-1973 and after 1-1-1973:-
_________________________________________________________________________ Category Scale prior Scale after to 1-1-1973 1-1-1973 _________________________________________________________________________ pharmacist Rs. 80-110 Rs. 330-8-370-10-400- Grade-11 EB-10-480. Pharmacist Rs. 130-5-175-EB-6- Rs. 330-10-380-EB-12- 205-7-212-EB-7-240 500-EB-15-560. Pharmacists- Rs. 130-5-160-8-200- Rs. 330-10-380-EB-12 cum-Clerk/ EB-8-256-EB-8-280- -500-EB-15-560. Store Keeper 10-300 Selection Rs. 205-7-240-8-280 Rs. 425-15-560-EB-20 Grade. -640. _________________________________________________________________________
(4) Kishan Das and Brij Lal entered the service of the C.G.H.S.as Compounders in 1954. This was Pharmacist Grade-11. On 17th June, 1955, they completed pharmacy Course and became full fledged pharmacists. So they were promoted to the Post of Pharmacists on 17th June, 1955. Both of them. After they had put in ten years of service as Pharmacists they claimed Selection Grade. They were not promoted to the next higher grade of Pharmacists cum-Clerk/Storekeeper because that is a selection post and they were not selected. But they would certainly lay their claim to the Selection Grade which is a non-selection post under the recruitment rules. The recruitment rules further provide that the method of recruitment to this Pharmacist selection grade post is '100% by promotion on seniority-cum-fitness basis.' The condition, is that he must be 'a permanent pharmacist grade-I with at least 10 years service in that grade'. The petitioners' claim that they are permanent pharmacists and have to their credit more than 10 years service as permanent pharmacists. The post being a non-selection post and the method of recruitment being 100/o by promotion on seniority-cum-fitness basis, it is claimed that they cannot be denied the selection grade.
(5) The petitioners rely on an office order dated 25th January, 1974 by which they were in fact appointed to the selection grade of pharmacists in the pay scale of Rs. 205-7-240-8-280 on an adhoc basis with effect from 21st January, 1974. This office order was signed by Mr. J.M.Puri, Deputy Director, C.G.H.S. and was given to them. On the basis of this office order they made representations to the Government that the selection grade given to them ought to have been with effect from 1968 when they had completed 10 years and a post had actually fallen vacant. To the representation dated 1 12-1976 the Government replied that the case of Brij Lal was under consideration. Similar was the reply to Krishan Das.
(6) What seems to have happened later in the C.G.H.S. is of same importance to these cases. The Government in their defense mainly rely on their letter dated 6th October, 1978. I reproduce this letter in full as the entire defense curlers round this one letter:-
'F.No. 6 1/77-Estt. Ill Government of India Bharat Sarkar. Central Government Health SCHEME. Nirman Bhawan, New Delhi dated the 6th October, 1978. Office Order
(7) Prior to the implementation of the recommendations of the Third Pay Commission, the following categories of Pharmaceutical staff in C.G.H.S. Delhi were having the scales of pay as shown against them:-
___________________________________________________________________________ S. No. Category of Staff Pre-revised Scale of Pay _________________________________________________________________________ __ 1. Storekeeper pharmacist-cum-clerk Rs. 130 -300 2. Selection Grade Pharmacist Rs. 205-280 3. Pharmacist Grade I (Qualified) Rs. Rs.130-240 4. Pharmacist Grade Ii (Unqualified) Rs. 130 -240 Rs. 110 -155 Rs. 95 -155 Rs. 80 -110 Rs. 130 -240 Rs. 131-180 Rs. 110 -180 ____________________________________________________________________________
(8) The scales of pay of the posts held by the above mentioned staff have been revised w.e.f. 1-1-1973. It has, thereforee, been decide, in consultation with the Department of Personnel and 4-R, that the inter-se-seniority of these categories of personnel should be fixed as on 1-1-1973 in the order shown below keeping in view their pre-revised scale of pay and a combined Seniority list should be drawn up for them accordingly:-
1.Stenographer, Pharmacist-cum clerk 2. Selection Grade Pharmacist 3. Pharmacists Grade I (Qualified) 4. Pharmacist Grade-II (Unqualified)
(9) Provided that the seniority of Pharmacist Grade I will be counted in the Pharmacist Grade I from the date of their promotion as pharmacist Grade I from the accordance with the Ministry of Finance (Deptt. of Expenditure) O.M. No. 5 (12)-E. III. A/75, dated 22-7 1975;
(10) Provided further that all promotions to the posts of storekeeper/ Phramacist-cum-Clerk/Selections to the posts Pharmacist made after 1-1-1973, on the basis of the grades prevalent prior to that date, shall stand nullified.
SD/-(DR. V.K. JOTWANI) Deputy Director (CGHS) 1. The Medical Officers in charge, All Cghs Dispensaries including First Aid Post, New Delhi/Delhi. 2. Medical Superintendent, Cghs Maternity and Gynas Hospital R.K. Puram, New Delhi. ' 3. Physician in charge, Cghs Police Hospital, Rajpur Road/Kingsway Camp. 4. Medical Officer in charge, Cghs Parliament House, Annexe, New Delhi. 5. Medical Superintendent, Dr. Ram Manohar Lohia Hospital New Delhi. 6. Admn. Medical Officer, Cghs Wing, Safdarjang Hospital, New Delhi. 7. Assistant Depot Manager, Family Welfare Store Depot., Nirman Bhawan, New Delhi. Copy forwarded for information to etc. Ghs (Attention Delhi Development Authority (CGHS) (1) Their F. No. A. 23021/1/77-CFHS I refers. sd/- (Dr. V.K. Jotwani) Deputy Director (C.G.H.S.)'
This letter in a nut shell says two things. One that a combined seniority list should be drawn up fixing 'inter-se seniority' 'keeping in view their prerevised scale of Pay'. In the inter-seniority the Storekeeper Pharmacist-cum- Clerk takes the first place because of his higher pay in the pre-revised scale, i.e. prior to 1-1-1973 before the recommendations of the Third Pay Commission were given effect to. Then comes the Selection Grade Pharmacist. His -pay ended at Rs.280.00 while the storekeeper pharmacist-cum-clerk could go up to Rs. 30O.00 (In the third place comes the pharmacist Grade-1 (Qualified) to which class the petitioners belong. Last of all is the unqualified pharmacist. He is the lowest rung of the ledder. So they rank last of all.
(11) The second thing that this letter does is that that it nullifies the order dated 25th January 1974 giving to the petitioners the selection grade because it says that all promotions to the posts of selection grade pharmacists made after 1-1-1973 shall stand nullified. So the office order dated 25th January 1974 which gave to the petitioners the Selection Grade of Pharmacists was nullified by one Single Stroke of pen. So they brought this petition in 1979 challenging the nullification of the office order dated 25th January, 1974 as well as questioning the combined seniority list which was framed on 21st April 1979 in terms of the instructions issued by the Central Government in this letter dated 6th October 1978.
(12) The two questions thereforee requiring decision are these:- (1) Whether the combined seniority list drawn up on the basis of inter-se seniority is valid (2) Whether the nullification of the letter dated 25th January, 1974 is in accordance with law In both the writ petitions these two questions are raised. The filing of the second writ petition was necessitated when in complete disregard of the petitioners' rights, others junior to them were given the selection grade and the petitioners' rights were ignored.
(13) Prior to the letter dated 6th October, 1978, the Central Government issued a memorandum dated 20th March, 1973 by which the seniority of pharmacists was revised and brought up to date in the light of the instructions contained in the Department of Personnel letter dated 22-7-1972. The memorandum goes on to say:-
'ACCORDINGLY,seniority of pharmacists appointed prior to 22-12-1959 has been fixed on the basis of length of service and seniority of those who were appointed on or after 22-12-1959 has been fixed in accordance with the existing seniority rules as notified in the Ministry of Home Affairs office memorandum No.9-ll/55-RPS dated 22-12-1959'.
(14) So a seniority list of the pharmacists was issued in March 1973 in which these two petitioners figured at Seriall Nos. 19 and 20. This was a seniority list of the pharmacists who had been appointed prior to 1959 as well as after 1959 but it was confined only to the pharmacists. No other category of personnel, such as storekeeper pharmacists or Selection Grade Pharmacists, figured any where in this list. It was a list of pharmacists pure and simple. The petitioners hsve no complaint against this list dated March 1973. But when this new combined seniority list was issued pursuant to the letter dated 6th October, 1978, they were obviously aggrieved. Because they lost their ground in the combined seniority list. Krishan Dass came down from No. 20 to 67. Brij Lal came down from 19 to 76. The reason is that the pharmacists Store-keepers and Pharmacists Selection Grade people took precedence over them. Not only this the selection grade given to them by letter dated 25th January, 1974 was taken away because that promotion was 'nullified'.
(15) The two questions which I have formulated above seem to raise one basic issue: What is the effect of the revision of pay scale by the Third Pay Commission It seems to me that this revision of pay scales which came into force from 1-1-1973 was the prine factor which influenced the Government in taking these two drastic decisions in their letter dated 6th October, 1978. 1-1-1973 is a crucial date according to the Government. On that date the scales of pay were revised. thereforee two things were done at once: (1) a combined seniority list was required to be drawn up on the basis of inter-se seniority of these four categories of personnel. This inter-se seniority was based on pre-revised scale of pay, namely scale of pay as in force prior to 1-1-1973. (2) All promotions to the post of Selection Grade Pharmacists made after 1-1-1973 stood nullified. Both these decisions seem to be based on the epicentre of 1-1-1973. It seems to me that the new criteria adopted in this letter both for purposes of combined seniority list as well as nullification of promotions made after 1-1-1973 is wholly indefensible. The department of Personnel and the Administrative Reforms which was consulted by the Government of India seems to have overlooked that without rescinding or amending the recruitment rules framed at the Commsncement of C.G.H.S. It was impossible to law down a new criterion.
(16) The new criterion was directly opposed to the criterion adopted in the recruitment rules. We are concerned only here with pharmacists (Qualified) and with their right to get the selection grade posts. If in the recruitment rules framed at the beginning of the Health Scheme it is prescribed that the only qualification for a Pharmacists Selection Grade is that the man must be (l) a permanent pharmacist Grade-1 (2) of at least ten years service in that grade and (3) that he should be senior and not unfit. If these three conditions are satisfied I do not see why permanent pharmacists grade-I should not be promoted to the pharmacists selection grade because it is not disputed that the post is a 'non-selection post' and recruitment is '100% by promotion'. This seems to have been done obviously with a view to see that the qualified pharmacists do not stagnate at Rs. 240.00 which is the end of their scale. They were, thereforee, given this right to 100% promotion to the post of Selection Garde Pharmacists where they could go up to Rs. 280.00 even if they are not promoted as Storekeeper pharmacists-cum-clerk.
(17) The letter dated 6th October, 1978 has been issued in utter disregard of the recruitment rules which were framed at the commencement of the service. A combined seniority list based on the principle of inter-se seniority and the pre-revised scale of pay cannot be sustained because it introduced the notion of gradiation according to pay in the pre-revised scale. These were novel principles introduced by this letter for the first time. This means grading different categories of personnel according to their pay, For all practical purposes a men's pay becomes the badge of seniority. 'This is against recruitment rules Pharmacists can have their separate seniority list under the recruitment rules. In order to be promoted to the pharmacists Selection Grade they have to satisfy the three conditions enumerated above and nothing else. Under the recruitment rules the pay scale does not figure at all as a criteria. Nor do the recruitment rules contemplate a combined seniority list on the basis of inter-se seniority. If the combined seniority list cannot be defended it is impossible to defend the other decision, nernely, the decision of nullification of 'all promotions to the posts of Selection Grade Pharmacist after 1-1-1973 on the basis of the grades prevalant prior to that date'. It appears to me that the recruitment rules have been thrown over board by this single letter. Those who were seniors were made juniors overnight. The whole thing was put up side down.
(18) At this stage it is necessary to refer to a decision of the Supreme Court: Union of India v.Ravi Verma, : 2SCR992 . The purport of that decision is this. According to O.M. dated June 22, 1949 issued by the Home Ministry, seniority was to be determined by the length of service. By 0 M. dated December 22, 1959 this rule was changed. The seniority now was to be determined by the date of confirmation and not on the length of service as was the rule contained in O.M. dated 22nd June, 1949. What the Government did after 1959 was this. It determined the seniority of all Government Servants, whether they were pre-1959orpost-1959,bythedate of their confrmation. This was challenged. The Supreme Court held that to the pre-1959 men the O.M of 1949 must be applied and to the post-1959 men the O.M. of 1959 will apply. It was unjust to apply retrospectively to the pre-1959 men the office memorandum of 1959. This was the decision. C.G.H.S. had this decision in mind when the office memorandum dated 20th March, 1973 was issued. Seniority of pharmacists appointed prior to 22-12-1959 was fixed on the basis of length of service. This was perfectly in accordance with the decision in Ravi Verma's case.
(19) The main focus of discontent is this letter dated 6th October1978. It dicTaway with the previous seniority list of permanent pharmacists It struck at all promotions made after 1-1-1973. It swept away the principle of length of service. Neither length of service nor the principle of confirmation the two recognised principles by the office memorandum of the Ministry of Home Affairs was recognised. On the other hand, it introduced for the first time the principle of inter-se seniority in the staff based on pre-revision pay scales. It had no regard to the principle of separate cadres of grades which is ingrained in the recruitment rules. Inter-se seniority principle based on pre-revised pay scale is unprecedented in the history of service jurisprudence. , Neither principle nor precedent can be cited to support it. The letter of 6-10-1978 produced an amalgam of combined seniority which had regard only to the ascending scale of pay. The effect was that the personnel in its own cadre went down by several steps in the leader of inter-se seniority because of the poor pay of the cadre. In my opinion the introduction of the new criterion was based on no intellegible or rational principle?
(20) The principle of 'inter-se seniority' cannot be applied to determine the seniority of permanent pharmacists for the purpose of awarding selection grade to them. The recruitment rules speak of selection grade as awardable 'lOO% by promotion' on ''seniority-cum fitness' basis to permanent pharmacists of 10 years' standing. So separate seniority of Pharmacists is funddmental in the recruitment rules. Where separate seniority is required under the rules the letter speaks of 'a combined seniority list'. This is the complete disregard of the recruitment rules. Inter-se seniority posts merger and combination. Recruitment rules, on the contrary, preserve the uniqueness and individuality of the permanent pharmacists while maintaining their separate seniority.
(21) The petitioners that their seniority must be fixed on the basis of length of service as they were appointed in 1955. I do not see why this should not be so. The letter dated 6th October, 1978 reverses the decision of 20th March, 1973. Not only is this letter of 6th October, 1978 against the office memorandum of 20th March, 1973, it is also against the decision in Ravi Verma's case. C.G.H S. was applying the principle of inter-se seniority based on pre-revised scale of pay retrospectively. For this there is no justification. The combined seniority list, thereforee, must go. The nullification order also must fall to the ground. The consequence of this will be that the list issued in March 1973 will have to be restored. The office order dated 25th January, 1974 will also have to be restored.
(22) Counsel for the Union of India that the letter dated 25th January, 1974 was ever issued. In the counter-affidavit the Government said that in any case it was never given effect to nor implemented. When I asked counsel, Mrs. Kadambini, she produced for the inspection of the Court a photostat copy of the order dated 25th January, 1974 which is exactly the same as has been filed by the petitioners. She says that though the order is signed and is to be found on the files of the Government it was never issued. I do not agree. There is nothing to show on the record that any contra order was made not to issue the office order dated 25th January, 1974. In fact the order itself says that its copy must be forwarded for information to the petitioners as well as to several other departments of the Government concerned. Assuming for a moment that this order was not issued it will not make any difference to the petitioner's case. If the recruitment rules apply and the letter dated 6th October, 1978 is invalid, as I hold it to be, there is no other obstacle in petitioners' way in getting the selection grade of pharmacists because they satisfy the three conditions I have enumerated above. They are permanent pharmacists of ten years standing. They are senior. They have not been found unfit.
(23) Counsel for the Union of India says that the petitioners were put under suspension some time in 1963 and thereforee they were unfit. It is not disputed that this suspension was revoked. If the suspension was revoked and no punishment was inflicted it will mean that suspension had no effect on their right to claim the selection grade for the simple reason that it was revoked by the authorities themselves. If it was revoked it must follow that the order of suspension was not valid.
(24) For these reasons the writ petitions are allowed. The petitioners in Civil Writ Petition No. 977 of 1979 will be awarded selection grade of pharmacists in the revised pay scale with effect from 21st January, 1974. The other direction that I issue is that seniority list of pharmacists will bs drawn up as was drawn up in 1973 on the basis of the principle of length of service. To those pharmacists who were appointed prior to 22-12-1959 the principle of length of service will apply. Those who were appointed after 22-12-1959 the office memorandum dated 22-12-1959 will govern. As a consequence the office order dated 10th September, 1979, Annexure P-8 in Civil Writ Petition No. 1404 of 1979, is quashed and hereby set aside because petitioners' juniors were appointed as Selection Grade Pharmacists in complete disregard of the petitioners' rights. I have now declared the petitioners' rights. thereforee, the petitioners will be given their rightful places in the seniority lists as well as in the list of appointment of Selection Grade Pharmacists on the basis of their seniority based on length of service The Government will comply with these directions within a psriod of thres months. The parties are left to bear their own costs.