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George Harris Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Judge
Reported in(1979)IILLJ65Mad
AppellantGeorge Harris
RespondentUnion of India (Uoi) and ors.
Cases ReferredState of Mysore v. C.R. Seshadri
Excerpt:
.....would often be a question, but this is also settled by government orders. during war time many war service departments sprang up employing a good number of government servants, but with the end of the hostilities, or even before, these departments were disbanded just as suddenly, with the result that the services of the staff were discontinued for no fault of their own. when the arp was disbanded, he, like others in his unit, was thrown out of employment. but then he pointed out that it is precisely in this respect that we had committed an error of judgment. he said that the court will not be persuaded to review its previous judgments merely because it later happens to hear fuller of better arguments on the same points. i am, therefore, satisfied that the review power must be put to good..........we accepted the position under the service rules that in order to count length of service in any grade, service in an equivalent grade must also be taken into account. we also accepted the special rule which said that service in an equivalent grade meant 'service on a rate of pay higher' that the minimum of the 'time scale of the grade concerned'. but we rejected the follow-up contention which was put forward to the effect that the petitioner's pay as a staff officer in the arp was on a higher initial time-scale than his own pay as a meteorological assistant. therefore, we refused to count his period of service as an arp staff officer for fixation of his seniority as meteorological assistant.9. this conclusion of ours is the butt of criticism in the review petition. whether pay in one.....
Judgment:

V. Balasubramaniyan, J.

1. This is a petition for review of judgment of a Division Bench comprising Kailasam, Officiating Chief Justice, and me.

2. Our judgment was delivered in a service case. It related to fixation of seniority of a Central Government servant. When we speak of seniority in Government service it is always seniority in a particular grade. Ordinarily speaking, this would depend on two factors : (i) length of service and (ii) continuity of employment. Length of service, generally, must be reckoned with reference to service in the same grade. And, continuity of service excludes any idea of interruption or break in employment. These are the basic requirements relating to fixation of seniority.

3. There have, however, been refinements of these basic principles, and service regulations have tended to become more and more sophisticated. For instance, the idea of seniority has meaning only with reference to service in the same grade. But there is now a well-recognized refinement to this conception, according to which service in an equivalent grade will also add to length of service. What precisely is an equivalent grade would often be a question, but this is also settled by Government Orders.

4. Likewise, to the once indispensable requirement that length of service must be continuous, in the sense of being uninterrupted, there are now a few exceptions. During war time many war service departments sprang up employing a good number of Government servants, but with the end of the hostilities, or even before, these departments were disbanded just as suddenly, with the result that the services of the staff were discontinued for no fault of their own. However, a number of war service personnel, ousted in this manner, were absorbed by and by in other Government Departments, although not without so break in employment in between. But, having regard to the peculiar exigencies of war service, it was recognized that this kind of involuntary break in service must be ignored in reckoning 'continuous', service for purposes of fixation of seniority in post-war employments.

5. In this case, the petitioner began his career in Government service as an ARP staff officer. When the ARP was disbanded, he, like others in his unit, was thrown out of employment. But, luckily for him, he got a footing, within a month's time or two, in the Indian Meteorological Department. In this Department he spent the rest of his period of service. When his seniority in the grade of meteorological assistant came up for fixation, the head of the Department was apparently prepared to proceed only on his continuous service in that very grade, without taking note of his previous war service. The petitioner made many representations, even to the higher authorities. But to no avail. They refused to take into account his service in the ARP for reckoning his length of service as a meteorological assistant. For two reasons. One was that, in their view, service as ARP staff officer was not service in an equivalent grade. The other reason was that in between the two jobs, one in the ARP and the other in the Meteorological Department, the petitioner had suffered a break in service.

6. The petitioner protested. He quoted chapter and verse from Government notifications to show that he was entitled to count his ARP service for getting his proper place in the seniority list of meteorological assistants. These representations fell on dead ears.

7. The petitioner then approached this Court with a writ petition and asked for a mandamus. Ramaprasada Rao, J., who heard the writ petition dismissed it. The petitioner preferred a writ appeal. It came before Kailasam, O.C.J., and me. But we dismissed the appeal. Our judgment in the writ appeal is now under fire in this review petition.

8. While disposing of the writ appeal we did deal with the substance of all the petitioners' contentions. With some of them we even agreed. For instance, we accepted the position under the Service Rules that in order to count length of service in any grade, service in an equivalent grade must also be taken into account. We also accepted the special rule which said that service in an equivalent grade meant 'service on a rate of pay higher' that the minimum of the 'time scale of the grade concerned'. But we rejected the follow-up contention which was put forward to the effect that the petitioner's pay as a staff officer in the ARP was on a higher initial time-scale than his own pay as a meteorological assistant. Therefore, we refused to count his period of service as an ARP staff officer for fixation of his seniority as meteorological assistant.

9. This conclusion of ours is the butt of criticism in the review petition. Whether pay in one service is higher or not as compared to pay in another is a simple question of comparing two figures. And I said so when Mr. Dolia for the petitioner was arguing this point. But then he pointed out that it is precisely in this respect that we had committed an error of judgment. He put his finger in the following passage from our order:

Further his service in the A.R.P. cannot be considered as service in an equivalent grade as his pay was not Rs. 130 or higher as required in the Memorandum, the consolidated pay being only Rs. 150.

10. I must admit that this passage contains an egregious error in elementary figure work. We seem to be saying that the pay scale of Rs. 150 in the A.R.P. is not higher pay as compared to the minimum pay scale of Rs. 130 in the other service, which is palpably absurd arithmetic for which even a child in Kindergarten can be found fault with. Obviously, the correct conclusion is that as an A.R.P. staff officer the petitioner's pay at Rs. 150 per mensum was higher than Rs. 130 which is the minimum the time scale of pay he later got as a meteorological assistant. This means that the definition of 'equivalent grade' fits the petitioner's case to perfection and we were quite wrong in saying that it did not. Sitting in review, I must now own the error to which I, as a member of the Bench, was a party.

11. Another criticism Mr. Dolia made of our judgment was directed against our view as to the effect of the petitioner's break in service before he got into the Meteorological Department. On this aspect too, we did go into some detail while dealing with the legal position. Our judgment would show that we were aware of the rule that factual break in service need not stand in the way of counting the period of service prior to the break, in the case of war service candidates subsequently absorbed in other Departments. Why we rejected the petitioner's claim that when he was later entertained in the Mateorological Department it was only as a war service candidate, and not on any other basis of recruitment.

12. Mr. Dolia has drawn my attention to a relevant Home Ministry notification which classified the A.R.P. as a war service department. He also referred me to his client's first appointment order in the Meteorological Department which shows that he was taken in only as a war service candidate. These documents are found exhibited in the paper books filed by the petitioner. They were very much part of the record in the writ petition and in the writ appeal. And yet, we somehow, did not refer to them, but entered the finding that there was break in service. This conclusion was plainly erroneous, for we had arrived at it in the very teeth of documents to which we ought properly to have made reference.

13. I must now face the consequence of the discovery and correction of the errors in the Bench judgment. In my opinion, the consequence is that the judgment must be set aside. I know of no other way to make amends, considering that the matters on which we had gone wrong were fundamental to the decision m the case. Now that I have understood them aright I have to give effect to them. This means that in supersession of the Bench judgment dismissing the writ appeal, I must allow it and direct the authorities to fix or refix the petitioner's seniority according to law.

14. Mr. Chengalvarayan, Learned Standing Council for the Central Government, to whom notice of this review petition had been given, did not think fit to address arguments on what may be described as the merits of the case. But he seemed quite anxious about the modalities of review being strictly observed by this Court in this, and perhaps in every other review petition. He said that a review must be strictly confined to the situations contemplated in Order 47, Rule 1 of the Code of Civil Procedure. He said that the Court will not be persuaded to review its previous judgments merely because it later happens to hear fuller of better arguments on the same points. He said that review by no means provides a forum for second thoughts. He said that the petitioner must in every case show that new and important matter, vital to the decision in the case, had come to light only subsequent to the judgment. He said that in this case everything worth arguing for, or listening to, had been said at the writ appeals, and all relevant notifications and orders had been brought to the notice of the Court. In these events, he said, the same points cannot be reagitated before this very Court on the foot of a petition for review. He granted that the petitioner might nurture a grievance with the way the Bench had dealt with his submissions. But the necessary corrective for that, he added, would lie in an appeal against the judgment, not in a review before the very same Court.

15. Mr. Chengalyaroyan sought to cite case law to emphasize his argument. But I saved him the trouble by accepting the substance of what he was driving at. I agree with him in thinking that a review must not be overworked or overindulged in by Courts. Thereby it would become a rehearing of all lost cases, which is the proper business only of appellate Courts, if they are invoked. All the same, I see no reason to exclude from review palpable errors in judgment. Nor can I accept the suggestion that when there is a patent omission to look into relevant records of base the decision on them, the Court should fight shy of looking into them later when reminded of them by the party affected. In this case, the Bench, to which I was a party, led itself into an error by not looking at two vital notifications and orders. It also committed an elementary mistake in the reading and comparison of pay scales. I am, therefore, satisfied that the review power must be put to good purpose in this case, by setting aside our erroneous judgment in the writ appeal. Not to do so would be to perpetuate an inequity, even after discovery.

16. The question remains as to what form a positive direction in the writ appeal should now take. I was informed that the petitioner is no longer in service, having retired from the Meteorological Department on superannuation. Hence I wondered, at one stall, as to what good a fixation of his seniority would do to the petitioner in his retirement. Mr. Dolia, however, brought to my notice two decisions of the Supreme Court, which provide the answer. State of Mysore v. C.R. Seshadri : (1974)ILLJ301SC , and State of Mysore v. Bellary 1966 I L.L.J. 51. A reading of these cases shows that by the time the Court could grant the requisite relief to the Government servant before them in each of these cases he had retired from service. Nevertheless, that development did not deter the Court from adjudicating on his claim and directing the relief to which he was entitled to be reduced in money terms.

17. Following precedent, my decision in this review petition relating to the petitioner's seniority as Meteorological Assistant would have to be worked out by the Department. This will quite properly involve his entitlement to all the material consequences of relaxation of his rank in the seniority list in that grade. I express the hope, as the Supreme Court did in State of Mysore v. C.R. Seshadri : (1974)ILLJ301SC , that the Government will fairly reckon and grant to the petitioner the benefits which would be due to him on such basis.

18. The review petition is allowed on these terms. There will, however, be no order as to costs.


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