S. Mohan, J.
1. The petitioner was appointed as lower division clerk in the Government of India service on 1st March, 1943. He was confirmed on 21st May, 1956. He was promoted as upper division clerk on 30th March, 1957. His confirmation as upper division clerk took place on 24th January, 1962. Subsequently he was promoted as upper division clerk in charge on 1st February, 1974. He was further promoted as Public Relations Officer (U.D.C. Selection Grade) in the scale of Rs. 425-640 on 9th July, 1975. Even prior to this, he was serving as Public Relations Officer from 11th November, 1974 to 7th July, 1975.
2. The petitioner's service conditions as regards the fixation of seniority are governed by the Memorandum issued by the Ministry of Home Affairs, dated 22nd June, 1949 bearing No. 30/44/48 apptts. Another Memorandum was also issued by the Ministry of Home Affairs No. 9/11/55-RPS, dated 22nd December, 1959.
3. The third respondent was appointed as lower division clerk on 23rd March, 1945 and he was promoted as upper division clerk on 1st September, 1959. His confirmation as upper division clerk also took place on 24th January, 1962.
4. The fourth respondent was appointed as lower division clerk on 27th October, 1943 and was promoted as upper division clerk on 5th April, 1967. His confirmation as upper division clerk took place on 24th January, 1962.
5. A seniority list was drawn in 1964 in which respondents 3 and 4 were shown as seniors to the petitioners. Aggrieved by this, the petitioner made several representations time and again; but they did not prove fruitful. In Union of India v. Ravi Varma : 2SCR992 . the memorandum a dated 22nd June, 1949 and 22nd December, 1959 were held to be not retrospective in character and instructions were issued to revise the seniority list in accordance with the said judgment. Accordingly, a seniority list of upper division clerks was drawn on 4th January, 1972. On that seniority list the petitioner was shown as serial No. 7, while the third respondent (G. Tharakaraman) was shown as S. No. 20 and the fourth respondent was shown as S. No. 11. This seniority list continued to be in vogue. However, the petitioner received a memo, dated 6th April, 1976 from the first respondent reverting him as upper division clerk with charge allowance and promoting the third respondent as Public Relations Officer in his place with effect from 6th April, 1976 (forenoon). He also received a circular, dated 6th April, 1976 canceling the earlier circular, dated 25th September, 1972 pertaining to the seniority. A list of seniority of upper division clerks was enclosed along with the circular. In that the third respondent's name was shown as S. No. 4, the fourth respondent's name was shown as S. No. 5 and the petitioner's name was shown as S. No. 6. It is this revision of Seniority that is challenged in the writ petition.
6. The affidavit in Support of the writ petition raises the following grounds; There is no basis to fix the seniority of respondents 3 and 4 over the petitioner, since admittedly respondents 3 and 4 were appointed much later to the petitioner's appointment both in the grade of lower division clerks and upper division clerks. This seniority list is opposed to the decision of the Supreme Court reported in Union of India v. Ram Varma : 2SCR992 .
7. Respondents 1 and 2 have filed a common counter-affidavit stating that the seniority of the petitioner and the respondents was governed by the decision contained in the Ministry of Home Affairs, O.M., dated 22nd June, 1949. According to this, seniority in a grade was to be determined on the basis of the length of service in the grade or in an equivalent grade; service in an equivalent grade being defined as service rendered at a pay higher than the minimum of the scale of the post in which seniority is to be determined. In other words, seniority in the grade of upper division clerk was to be determined on the basis of the length of service in the grade or from the date on which the persons concerned had been continuously drawing pay exceeding the minimum of the scale of pay of the Upper Division Clerk viz., Rs. 80 in the scale of Rs. 80-200 applicable to the grade at that time. On this basis, even, as early as 1st October, 1951 seniority was assigned to the then existing incumbents in the upper division, clerk cadre and circulated. A seniority list was also drawn up on 4th September, 1957 according to which the fourth respondent and the petitioner were assigned positions as serial NOS. 35 and 36 respectively. Even in July, 1964 respondents 3 and 4 were shown as seniors to the petitioners. The seniority list was correctly prepared. In the list drawn in 1968, dated 6th July, 1968 respondents 3 and 4 and the petitioner were assigned positions as 17, 18 and 19 respectively. All these lists were in vogue for the past 20 years. It is submitted that the contention of the petitioner to the effect that the seniority list of upper division, clerks drawn up on 4th January, 1972 is not correct, is wrong since the persons holding the post of upper division clerks prior to 22nd December, 1959 were to be governed by the principles of seniority embodied in the Memorandum, dated 22nd June, 1949, which is binding on. them. Therefore, the present revision became necessary and it is fully in accordance with law.
8. A separate counter affidavit has also been filed by the third respondent supporting the stand of respondents I and 2. It is also added that in 1972 when the seniority list was prepared the third respondent had no opportunity to question the same, since he was away in Washington.
9. The point that arises for my determination lies in a narrow compass. The Office Memorandum, dated 22nd June, 1949, which was the subject-matter of interpretation in the Union of India v. Ravi Varma : 2SCR992 . reads thus;--
It has now been decided in consultation with the Federal Public Service Commission that the question of seniority in each grade should also be examined in the same context and specific rules suitable for each service prescribed in framing those instructions. The question of seniority of Assistants in the Secretariat was recently examined very carefully in consultation with all the Ministries and Federal Public Service Commission and, the decisions reached are incorporated in para. 8 of the 'instructions for the initial constitution of the grade of Assistants' an extract of which is attached. It has been decided that this rule 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 irrespective of whether the latter was under the Central or Provincial Government in India or Pakistan. It has been found difficult to work on the basis of 'comparable' posts or grades and it has therefore been, decided that 'Service in an equivalent grade' should, generally be defined as service on a rate of pay higher than the minimum of the time scale of the grade concerned. The seniority of persons appointed on permanent or quasi-permanent basis before the 1st January, 1944, should however not be disturbed.
It is the contention of A.C. Muthanna, the learned Counsel for the petitioner that there is absolutely no scope for application of this memorandum as far as the petitioner on the one hand and respondents 3 and 4 on the ether are concerned. That will apply to persons who have come from Pakistan or the erstwhile princely States (known as Part C States). In such a case alone the question of finding out comparable posts or grade would arise which would necessarily be done by finding out the equivalent grade. In this case all three belonged to the Government of India service, and, therefore, no question of comparable posts or grade would arise. The fact that they were working in different departments in the Government of India service will not alter the situation. Judged from this point of view, either from the date of the appointment as lower division clerk or from the date of promotion as upper division clerk, the petitioner is undoubtedly senior. This is the very reason why in the list of the year 1972, the petitioner was shown as senior to the respondents. Therefore, the impugned order must be held to be invalid.
10. The learned Advocate-General would contend that by giving effect to the memorandum, it became necessary to find out the service in an equivalent grade which means service on a rate of pay higher than the minimum of the time scale of the grade concerned. In the instant case, the petitioner came to draw Rs. 82 in the scale fixed for lower division clerk only on 1st March, 1952 while the third respondent was drawing that scale as early as 30th August, 1951 and the fourth respondent on 6th December, 1951. Reckoned on the basis, certainly respondents 3 and 4 were seniors.
11. Mr. T. Rajagopalan, the learned Counsel appearing for respondents 3 and 4 submits that since the petitioner had kept quiet for all the earlier seniority lists, in which undoubtedly he was shown as junior, it is not open to him to complain that the seniority list is not in accordance with law.
12. On a careful consideration of the above arguments, I hold that the petitioner is well entitled to succeed. The question that arose for consideration in Union of India v. Ravi Varma : 2SCR992 . was whether the office memorandum dated 22nd December, 1959 and the provisions laid down in the annexure thereto providing for determination of seniority of persons appointed to the various central services by the date of confirmation were retrospective or not and the Supreme Court held that it is not retrospective in character. In the instant case, as rightly contended by the learned Counsel for the petitioner, there is absolutely no question of applying the Memorandum dated 22nd June, 1949 at all. All these persons belonged to the Government of India service. Therefore, there is no question of finding the basis of comparable posts or grades. If that be so, the service in an equivalent grade also would not arise. That will arise only in cases where the servants come from the Pakistan Government Service or from Part State service, who had to be fitted in the Government of India service. Having regard to the background in which this office memorandum was issued, that is the only conclusion possible. Therefore, basing on this Memorandum it is not open to respondents 1 and 2 to revise the list of seniority.
13. I am not able to countenance the arguments of the learned Counsel for respondents 3 and 4 that with regard to all the earlier lists of seniority the petitioner did not put forth his objections and, therefore, he must be precluded from doing so. I is only after the decision of the Supreme Court the entire matter came to be revised by the impugned proceedings. Since I find that those proceedings are based on an incorrect interpretation of the abovesaid Office Memorandum, as a result of which the petitioner's seniority has come to be affected, he has got every right to complain. The fact that he did not do so would not disable him from questioning, the present revision, nor would it constitute any estoppel.
14. In the result, the writ petition will stand allowed and the circular MDS/EST/60, dated 6th April, 1976 is hereby quashed, which will mean that the seniority as shown in the list dated 25th September, 1972 will stand. There will be no order as to costs.