A.B. Rohatgi, J.
1. This is a case of two army officers who fought in the war of India with China in 1962. They were recruited in the Army as Emergency Commissioned Officers in 1963. Hasib Ahmad, petitioner No. 2, joined the army on 19-7-1963. After the war he was released. On 1-9-1969 he was released from the army having served there for a period of 6 years, 1 month and 14 days. Similarly, K.N. Singh, petitioner No. 3, joined the army on 11-4-1963. On 1-11-1967 he was released having served for a period of 4 years, 6 months and 22 days in the armed forces.
2. Petitioner No. 1 has died. thereforee, his case need not be considered.
3. Petitioners 2 and 3 were appointed as Senior Assistant Managers (General) in the Food Corporation of India, respondent No. 1. Petitioner No. 2 was appointed on 1-11-1972. Petitioner No. 3 was appointed on 11-12-1972.
4. The Food Corporation of India is a corporate body. It was created by the Food Corporation Act 1964. It has power to frame regulations. In exercise of that power it has framed a large volume of Staff Regulations 1971. The Corporation exercises functions of a legislative nature delegated to them by legislative bodies. In a sense the Corporation is a subordinate legislative body, but in truth, it is what Lord Maugham described in Rowell v. Pratt (1938) AC. 101 a domestic executive body which the legislature has thought fit in the public interest to entrust with important statutory powers. It can make regulations on various subjects and prescribe rules of conduct for the purpose of carrying out statutory powers. The regulations must be framed within the four corners of the powers given by the legislature. (Arthur Yates & Co. Ltd. v. The Vegetable Seeds Committee (1945) 72 CLR 37.
5. Under the Staff Regulations a Senior Assistant Manager (General) (SAM(G)) can be promoted to the post of Deputy Manager (General) ('DM(G,)). Under Appendix I Part II the recruitment to the post of DM(G) can be made in two ways. One by direct recruitment in so far as 25 per cent of the posts is concerned. For the remaining 75 per cent the method of recruitment is by 'promotion'. In the method of promotion the appointing authority adopts the principle of selection. The prescribed qualification for this post is experience of 3 years as SAM(G). The dispute in this case centres round the question whether the petitioners possess this qualification of 3 years experience as SAM(G).
6. Now what happened in this case was this. On 11-6-1974 the Corporation issued a circular on the subject of employment of Emergency Commissioned Officers and Short Service Commissioned Officers after their release from the Armed Forces in the Food Corporation of India. The Corporation decided that 25 per cent of the vacancies in the grade of DM(G) which were to be filled by direct recruitment hitherto shall be reserved for being filled by appointment of the released Emergency Commissioned Officers and Short Service Commissioned Officers in the Armed Forces. This was done on the analogy of the Government of India orders which also gave benefit of approved military service to Emergency Commissioned Officers. But this court is concerned only with the circular of the Corporation and not the analogous circulars of the Government of India. The Corporation being an autonomous body has an independent power to make regulations.
7. The benefit of approved military service was to be given to the Commissioned Officers in this way. Their period of military service including the period of training was to be included for purposes of fixation of seniority and pay in their present assignment of SAM(G). The circular says :
'In other words, they (the Emergency Commissioned Officers) are deemed to have been appointed from the date which is determined after giving them full credit for the approved military service as Emergency Commissioned Officers including the period of training, if any and are to be allowed seniority and pay accordingly.'
This principle was amplified in paragraph 4 of the circular in these words :
'As regards seniority of such officers, it has been decided that their seniority in the post to which they are appointed in the Corporation should be fixed on the assumption that the officer concerned had been appointed on the date arrived at after giving him the credit for the approved military service including the period of training and he would be deemed to have been allowed the corresponding year for the purpose of seniority.'
8. The petitioners are Emergency Commissioned Officers. They were entitled to the benefit of approved military service including the period of training under this circular both for purposes of seniority as well as pay. The Corporation accordingly gave them this benefit in terms pf the circular. On 3-7-1974 an office order was issued saying :
'In terms of Circular No 4 12/71 EP dated 11-6-1974 benefit of approved Military service as Emergency Commissioned Officers including the period of training if any, accrues to them as indicated against each officer towards fixation of their seniority in the grade of Senior Assistant Manager (General) : --
Y - M - DS. No.Name of the officer.Date of joining FCI as SAM(G)Approved Military service including theperiod of training.Period to be reckoned for purpose of fixationof seniority in the grade of SAM(G).123451.Shri K.N. Singh, Gig & Secy. Div. Head Office, NewDelhi.11.12.72
1.11.674 - 6 - 222.........................3.........................4.........................5.........................6.Sh. Hasib Ahmed, D.O. Hapur.1.12.72 (FN)19.7.63
1.9.696 - 1 - 14
9. Though the petitioners were given the benefit of approved military service and the period spent by them in the armed forces was reckoned for purposes of fixation of their seniority in the grade of SAM(G), they were denied promotion to the next higher grade of DM(G) on the solitary ground that they had not acquired the necessary experience of 3 years as SAM(G). They brought this writ petition in 1975 challenging this denial. On 6th December, 1974 as many as 10 SAM(G) were appointed to officiate as DM(G) by an order issued in this behalf. But the names of these two officers did not find a place in this Office Order. So they seek that this Office Order be quashed because the appointing authority has not considered them while they have considered others junior to them. The petitioners also claim that the Corporation be directed to consider them for the post of DM G).
10. The Corporation contests the claim of the petitioners on the sole ground that the petitioners are not entitled to be selected for promotion to the post of DM(G) because they had not acquired the necessary experience of 3 years as SAM(G) on 6-12-1974, the date on which selection took place and the Office Order promoting others was passed. It is the validity of this defense that has to be examined in this case.
11. The petitioners put their case on two grounds. One is the circular dated 11-6-1974. The other is discrimination. They quote three instances to show that those who had acquired experiences only of 2 years and 2 1/2 years as SAM G) had been promoted as DM(G). I will consider these two grounds of claim separately.
12. The circular dated 19-7-1974 is the main stay of the petitioners' claim. It gave benefit of approved military service to them. Their approved military service including the period of training was to be taken into account for purposes of seniority and pay. This is the object of this circular. thereforee it says in clear terms that such Emergency Commissioned Officers as are given the benefit of approved military service shall be 'deemed to have been appointed from the date which is determined after giving them full credit for the approved military service as Emergency Commissioned Officers including the period of training.' This deeming provision employs a fiction. It is an 'assumption' as the circular says. Because the seniority of these officers has to be fixed on the consideration that the date of their appointment is to be determined after giving them full credit for the approved military service including the period of training. The 'deemed' provision in clause 2 and the 'assumption' provision in clause 4 unmistakably direct the authorities that in determining seniority and pay you take into account the approved military service of the Emergency Commissioned Officers.
13. That this is the meaning and purpose of the circular is not disputed by the Corporation. They themselves in the order dated 3-7-1974 have given benefit of 4 years 6 months 22 days to Singh and have thereby fixed his seniority as from 11-4-1963. Similarly in the case of Ahmed his seniority was fixed as from 19-7-1963 after giving him benefit of the approved military service of 6 years 1 month and 14 days. But the Corporation denies to these petitioners their right of promotion to the next higher grade of DM(G) on the ground that they have not acquired experience of 3 years of SAM(G) as is essential under the circular.
14. The defense of the Corporation, it seems, is specious rather than sound. Seniority must be reckoned in the case of both these petitioners after giving them benefit of approved military service. After taking into account the period of their approved military service the seniority of Singh will date back to 19-5-68 and the seniority of Ahmed will relate back to 17-10-66. Singh will be deemed to have worked as SAM(G) for more than 6 years on the crucial date, namely, 6-12-1974. Ahmed will be deemed to have worked for 8 years as SAM G) on the material date, that is, 6-12-1974. These conclusions are inescapable on an interpretation and a fair reading of the circular dated 11-6-1974. They will also be deemed to have acquired experience for more than 3 years on the footing of the 'deemed clause' and the 'assumption clause' of the circular. It is difficult to distinguish, as counsel for the Corporation has sought to do, between seniority and experience. What use is seniority to a man if he cannot be considered for promotion to the higher grade It will be idle to say that though he will be given his due seniority yet he cannot be promoted because he has not acquired the requisite experience as SAM(G).
15. The circular dated 11-6-1974 employs fictions and assumptions for the sole purpose of giving benefit to the Emergency Commissioned Officers who fought the Indo-China War in 1962 as in this case. The fiction must be applied fully. Fiction is a rule of law which assumes as true, and will not allow to be disproved, something which is false. It is a legal assumption that a thing is true. It is an assumption or supposition that a state of facts exists which has never really taken place. Fiction is invented for a beneficial purpose. It is introduced for the sake of justice. Fiction in the realm of law has a defined role to play and it cannot be stretched to a point where it loses the very purpose for which it is used and in no case should it be allowed to perpetrate injustice. (Corpus Jurisdiction Vol. 25 p. 1036 quoted in Brijtardan Singh v. Jamuna Prasad AIR 1958 Fat 539). It will be perpetrating injustice if the petitioners are given seniority but denied promotion We know the purpose for which fiction was invented. To give to the commissioned officers benefit of the approved military service in other spheres where they seek employment after release from the armed forces Full credit must be given to their military service. This is what the fiction says. Where the statute or the circular declare's that a person or thing shall be deemed to be or shall be treated as something which in reality it is not, it shall have to be treated as so for all purposes consistent with the object of the statute or the circular.
16. Does the fiction mean that it can be applied only for purposes of seniority and pay and not for the purposes of promotion The answer is no. That the petitioners' contention is right is proved by three instances which they quote in their support. Those instances are as under :
Sl. No.NameDate of appointment as Sr. A.M.(G)Date of promotion as DM(G)Experience gained as SAM(G).1.Harcharan Singh
(Respondent No. 3)27.6.626.12.7421/2 years2.D.C. Jain
(Respondent No. 4)27.6.726.12.7421/2 years3.S.N. Mazumdar
(Respondent No. 6)1.11.726.12.742 years 1 month
17. The petitioners rely on these instances and say that in these three cases these persons had not acquired the necessary experience of 3 years but they were promoted as DM(G). In the counter-affidavit it is not denied that these persons had not acquired the experience of full 3 years as SAM(G) but they were promoted as DM(G). It would be, in my opinion, a case of invidious distinction if others who were already in the employment of the Corporation are promoted as DM(G) even though their experience is only of 2 years or so, but the petitioners cannot be promoted even though the circular says that their seniority will be determined after giving them full credit of approved military service. It is a clear case of discrimination.
18. Counsel for the Corporation says that these three cases on which the petitioners rely are cases of persons who ought to have been considered for promotion to the post of DM(G) in 1968 but by mistake were left out of consideration on that date and thereforee in 1971 and 1972 when these persons were promoted they had acquired the experience of 3 years as SAM(G). In my opinion, this argument must be rejected straightway for several reasons. Firstly this plea that these persons' claims were passed over in 1968 has not been taken in the counter-affidavit. Secondly, assuming it to be so, the short answer to this argument is that these three persons whose instances are quoted by the petitioners were not working as SAM(G) in 1968. They were all appointed as SAM(G) in 1972. The Staff Regulation requires 'experience of three years as SAM(G)'. thereforee, all that can be taken into account is the experience of SAM(G) in that post and none other. They must have been working in some junior post before 1972. But their experience in the junior post cannot be taken into account. Experience as SAM(G) only can be taken into account under the Regulations.
19. The upshot of the discussion is that if other employees of the Corporation can be found fit for promotion to the post of DM(G) even though their experience is of 2 years and 2 1/2 years and the Corporation has the right to relax these conditions, there is no good reason why the present petitioners should not be considered for promotion to the post of DM(G). Though in my opinion the petitioners' case is fully covered by the circular dated 11-6-1974 and it would not be necessary for the petitioners to seek strength from the three instances they have quoted, yet the Corporation, which is the author of the Staff Regulations, cannot exercise power in the case of cited three persons in one way and in the case of the petitioners in a different way. The Corporation must give full effect to the circular dated 11-6-1974.
20. Why should I restrict the words of the circular and hold that only seniority and pay are covered and not promotion Promotion is comprehended within the word 'seniority'. I not only see no good reason for restricting the words, but I see every reason to give them their full and proper significance. The corporate author of the circular cannot say : 'I give seniority but not promotion'. It is always important to consider the purpose for which the fiction is introduced. Its primary function was to bring in something which would otherwise be excluded. The petitioners' military service will have to be included which otherwise would have been excluded. Fiction here was introduced for the advancement of the ends of justice.
21. In East End Dwellings v. Finsbury Borough Council (1951) 2 All E R 587 Lord Asquith said :
'If one is bidden to treat an imaginary state of affairs as real, one must surely, unless prohibited from doing so, also imagine as real the consequences 'incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it... ......The statute says that one must imagine a certain state of affairs. It does not say, that having done so, one must cause or permit one's imagination to boggle when it comes to the corollaries of that state of affairs.'
22. Promotion is the 'consequence' of seniority. It is an inevitable corollary. The authorities fell into this error that they permitted their imagination to boggle when it came to the 'inevitable corollaries of that state of affairs' which the circular bids us imagine as real.
23. For these reasons the writ petition is allowed. The petitioners' case will be considered as on 6-12-1974 and if selected, will be promoted to the post of DM(G) and their proper place of seniority will be assigned to them. They will also be entitled to all the consequential benefit as a result of this order on their promotion to the post of DM(G). It is clarified that the two petitioners are working as DM(G). All that this order gives them is that their appointments as DM G) will now relate back to 6-12-1974 and the consequential benefits flowing there from.
24. No. Costs.