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C. Venkatesalu Vs. the Union of India (Uoi), Represented by Director-general, Posts and Telegraphs and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtChennai High Court
Decided On
Reported in(1969)2MLJ364
AppellantC. Venkatesalu
RespondentThe Union of India (Uoi), Represented by Director-general, Posts and Telegraphs and ors.
Excerpt:
- .....was made to depend upon confirmation. the result would be that a person who for instance, entered service in tiruchirapalli division earlier than another person who entered service in the madurai division, might, on a circle basis, become junior to the person who entered in the madurai division if the latter had been confirmed earlier because there were more vacancies available then and the person who entered in tiruchirapalli division was confirmed later because there were fewer vacancies for confirmation in that division. therefore, it affected adversely the interests of persons serving in divisions where the opportunities for confirmation were less. there could naturally be no objection to effect being given to this new rule prospectively. but this rule has been made.....
Judgment:
ORDER

A. Alagiriswami, J.

1. The petitioner was appointed as a telephone operator on 15th October, 1952, in the Tiruchirapalli Engineering Division, Madras Circle, and confirmed in the Trivandrum Division on 1st August, 1956. At the time of his recruitment and subsequently upto 22nd December, 1959, seniority in the cadre was to be determined on the basis of the length of the service on the basis of the orders issued by the Ministry of Home Affairs, O.M. No. 30-44/48 Apptt. dated 22nd June, 1949. The recruitment is on a divisional basis but the promotions seem to be on a circle basis, the seniority being counted inter se among the various officials in the various divisions on the basis of their respective seniority in that division. Under the rules that applied since 1949, as the seniority was from the date of appointment, nobody could have any grievance. But in 1959, this was changed and the seniority was made to depend upon confirmation. The result would be that a person who for instance, entered service in Tiruchirapalli Division earlier than another person who entered service in the Madurai Division, might, on a circle basis, become junior to the person who entered in the Madurai Division if the latter had been confirmed earlier because there were more vacancies available then and the person who entered in Tiruchirapalli Division was confirmed later because there were fewer vacancies for confirmation in that division. Therefore, it affected adversely the interests of persons serving in divisions where the opportunities for confirmation were less. There could naturally be no objection to effect being given to this new rule prospectively. But this rule has been made applicable to all persons who entered service after 1950. It appears that between 1944 and 1950, there were no competitive examinations. We are not concerned now with persons who have entered into service before 1944, who also seem to have been entertained on the basis of competitive examination. Under this 1959 circular, the order of seniority on the basis of the length of the service or the date of appointment was still applicable to persons who entered service between 1944 and 1950, but was changed only in the case of persons who entered after 1950 as a result of the competitive examination. What competitive examination has got to do with the change in the basis on which seniority is fixed as between these two classes, one is unable to understand; nor has the Department been able to justify it on any other basis except merely to say that the persons who entered service after 1950 were recruited as a result of competitive examination. The change in the seniority having been made as a result of a circular retrospectively which is not based on any criterion relevant to the fixation of seniority should be held to be hit by both Articles 14 as well as 16 of the Constitution. The Home Ministry Circular 1959 itself did not give .retrospective effect to the change made thereby. It specifically stated that it was not retrospective; but it permitted other departments to make changes in the basis for fixing seniority. But the change in the basis on which seniority is fixed does not mean giving effect to it retrospectively. In so far as the postal department circular changed the basis of seniority from date of entry in service to date of confirmation, there is no objection to it. It is a change in the basis on which seniority is fixed. But giving retrospective effect to it is something not warranted by the Home Ministry's circular. That is a change in the basis on which seniority is fixed. The change could be given effect to prospectively. The petition, will, therefore, have to be allowed and the circular in question will have to be struck down.

2. The writ petition is allowed and the circular O.M. 9-11/55-R.P.S. dated 22nd December, 1959, is struck down in so far as it seeks to give retrospective effect to the new basis for fixation of seniority as from the date of confirmation of the respective officers. The respondents should pay the petitioner's costs. Advocate fee Rs. 100.


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