ivil Appeal No 6144 of 1983
From the Judgment and Order dated 1081982 of the Himachal Pradesh High Court in CWP No 109 of 1982
PG NO 1012 PP Rao and Ranjit Kumar for the Appellant
Shankar Ghosh KG Bhagat PP Juneja Girish Chandra Ms A Subhashini and Nh
Sharma for the Respondents
The Judgment of the Court was delivered by Dutt J
This appeal by appeal leave is directed against the judgment of the Himachal Pradesh High Court dismissing the writ petition of the appellant challenging the Government order dated April 21982 as a result of which the appellant was placed below the respondents Nos 4 and 5 in the seniority list
The appellant was appointed as Reception Officer in the Department of Public Relations  Tourism Himachal Pradesh on February 26 1962 and was confirmed in that post on May 18 1966
He was temporarily promoted to the post of District Public Relations Officer in the pay scale of Rs250 500 on May 18 1966
On June 3 1966 a post of Assistant Manager Tourism was created in the pay scale of Rs250 500
One SP Singh who was junior to the appellant was appointed to that post inasmuch as the appellant was already holding the post of District Public Relations Officer in the same scale of pay
It may be stated here that both the posts of District Public Relations Officer and Assistant Manager were ex cadre posts
On July 26 1966 the Department of Public Relations  Tourism was bifurcated and a separate Department of Tourism was created
It is the case of the appellant that he made a representation that he might be transferred to his parent Department that is the Department of Tourism
While the representation of the appellant was pending consideration the  hereinafter referred to as the Act was enacted
The appointed day under the Act was fixed a November l 1966
Under section 5 of the Act on and from the appointed day certain territories of the State of Punjab were added to the Union Territory of Himachal Pradesh
Section 33 of the Act provides that every person who immediately before the appointed day is holding or discharging duties of any post or office in connection with the affairs of the existing State of Punjab in any area which on that day falls within any of the successor States shall continue to hold the same post of office in that successor State and shall be deemed on and from that day to have been duly appointed to the post or office by the Government of or other appropriate PG NO 1013 authority in that successor State
A Under the proviso to section 33 nothing in that section shall be deemed to prevent a competent authority on or after the appointed day from passing in relation to such person any order affecting his continuance in such Post or office
The respondents Nos 4 and 5 who were holding the posts of Tourists Officers in the pay scale of Rs250 350 in the State of Punjab were allocated to the Union Territory of Himachal Pradesh as Tourist Officers in the pay scale of Rs250 350
Although there were no post of Tourist Officer in the Union Territory of Himachal Pradesh in view of section 33 of the Act the respondents Nos 4 and 5 continued to hold the posts of Tourists Officers
The Joint Secretary to the Government of India Ministry of Home Affairs in his DO letter dated February 14 1967 issued certain instructions for the purpose of integration of the services of persons from the transferred territory of Punjab into those of the Himachal Pradesh
Paragraph 2 of the said letter is in following terms 2
Action for the integration of the services would have to be initiated soon after the finalisation of allocations
This would involve two steps i Determination of equivalent posts and ii Determination of relative seniority of persons holding equivalent posts but drawn from different integration units
For determining the equation of posts the following factors would have to be taken into consideration a The nature and duties of a post b The responsibilities and powers exercised by the officer holding the posts the extent of territorial or other charge held or responsibilities discharged c The minimum qualifications if anyprescribed for recruitment to the posts and the d the salary of the post
PG NO 1014 The following factors would have to be taken into account for the determination of relative seniority x Length of continuous service whether temporary or permanent in the equivalent post this should exclude periods for which an appointment is held in a purely stopgap or fortuitous attangement and y age of the person other facts being equal for instance seniority may be determined on the basis of age
While determining relative seniority as mentioned above it was also be borne in mind that the inter se seniority of officers drawn from the same integrating unit should as far as possible be maintained Thereafter in paragraph 3 it is inter alia stated as follows 3    
In the meanwhile
I would request you to initiate without avoidable delay the work of establishing provisional equations between posts which have come from the Punjab to Himachal Pradesh and those which were in existence in Himachal Pradesh on the 31st October 1966 and to prepare provisional seniority list as on the 1st November 1966 based on those equations for each cadre leaving out all localised cadre or cadres in which the problem of integrating officers from the Punjab with the officers of the Himachal Pradesh does not arise 
 One of the two steps which was to be taken for the purpose of integration was determination of equivalent posts
For determination the equivalent posts the factors which would have to be taken in consideration were also suggested in the said letter
One of the factors which is by far the most important one was as contained in clause d of paragraph 2 namely the salary of the post
It is apparent from the instructions given by the Central Government
as contained in the said Letter of the Joint Secretary that for the purpose of integration the first thing which should be done was determination of equivalent post and after such determination the determination of relative seniority persons holding equivalent posts would be made
It is surprising that although the instructions as given by the Central Government were very clear and specific in PG NO 1015 the matter of integration of services the Government of Himachal Pradesh instead of following the two steps as mentioned in the said letter of the Joint Secretary prepared a provisional seniority list of the Tourism Department without first determining the equivalent posts
There can be no doubt that integration of services postulates equation of posts
Without such equation preparation of inner se seniority lists between different groups of officers holding different posts cannot be conceived
The Himachal Pradesh Government
however appears to have ignored the specific clear and categorical directions of the Central Government to first of all determine the equivalent posts and adopted an arbitrary procedure in preparing the provisional inter se seniority list without such equation of posts
In the provisional seniority list the said SP Singh who was holding the post of Assistant Manager with effect from June 4 1966 which post as stated already is an ex cadre post like the post of District Public Relations Officer held by the appellant was placed at the top of seniority list as Assistant Manager
After him were placed the names of respondents Nos 4 and 5 as Tourist Officers
The name of the appellant as placed below the names of the respondents Nos 4 and 5 as Reception Officer
Admittedly
the appellant was senior to the said SP Singh
They were however holding posts having the same scale of pay
The Tourist Officers who joined the Tourism department of the Government of Himachal Pradesh from Punjab as a result of the transfer of certain territories of Punjab to Himachal Pradesh were placed above the appellant although admittedly their scales of pay were less than that of the appellant
Under the directions of the Central Government the post of Tourists Officer could not be equated with that of the District Public Relations Officer because the scale of pay of the former is less than that of the latter
Moreover it is not understandable why the appellant s name was metioned in the provisional seniority
list as the Reception Officer when he was on the appointed day that is on November 1 1966 holding the post of district Public Relation Officer
Be that as it may
the final seniority list that was published undercover of the office Memorandum dated September 13 t971 appears to be anomalous
In the final seniority list the names of the Tourists Officers including those of the respondents Nos 4 and 5 were placed above the Reception Officers and the name of the appellant was under the head Reception Officer  below the names of the Tourists Officers including those of the respondents Nos 4 and 5
It was already noted that the appellant was holding the post of District Public Relations Officer an ex cadre post in the Public Relations Department
PG NO 1016 It appears that the appellant had made a representation to the Government regarding his promotion and seniority after the publication of the final seniority list
That representation bore result for it appears from the Memorandum dated August 7 1973 of the Commissioner of Transport  Tourism Himachal Pradesh that the Government after careful consideration of the representation of the appellant dated June 30 1973 agreed to give proforma promotion to him as Assistant Manager in the pay scale of Rs225 300 with retrospective effect in consultation with the Public Service Commission
The appellant was requested to intimate as to whether he would opt to revert from the Public Relations Department to serve as the Assistant Manager or would like to continue with the Public Relations Department
The commissioner of Transport  Tourism also sent a telegram dated march 3 1974 to the appellant informing him of his proforma promotion as Assistant Manager in the Department of Tourism
The telegram was followed by a memorandum wherein it was stated that the appellant who was officiating an ex cadre post of District Public Relations Officer in the pay scale of Rs350 500 in the Public Relations Department was given proforma promotion as Assistant Manager in the Department of Tourism in the pay scale of Rs225 500 with initial start of Rs300 with effect from June 4 1966
However it was stated that since the post of Assistant Manager was an isolated one the question of fixing his seniority did not arise
After the appellant had exercised his option for the Tourism Department the Deputy Secretary Tourism to the Government of Himachal Pradesh by his letter dated February 6 1975 requested the Managing Director of the Himachal Pradesh Tourism Development Corporation Ltd Simla that the appellant might be treated like other p employees of the erstwhile Tourism Department he having exercised his option validly and given a comparable post in the Corporation
In that letter it was also stated that the appellant had all along been representing and requesting for the grant of extension in time to exercise his option on valid grounds and as advised by the Law Department the option exercised by the appellant should be deemed to have been given by him for proforma promotion as Assistant Manager with retrospective effect from June 4 1966
A seniority list was prepared by the Himachal Pradesh Tourism Department Corporation on December 31 l977
In the said seniority list the name of the appellant was placed at the top of the names of other officers including those of the respondents Nos 4 and 5
PG NO 1017 While the appellant was holding the position of the District Public Relations Officer in the said Himachal Pradesh Tourism Development Corporation his name having been placed above the names of the respondents Nos 4 and 5 the Department of Tourism issued an order dated April 28 1982 on the representation of the respondents Nos 4 and 5 directing that the inter se seniority of the appellant and the respondents Nos 4 and 5 was to be determined on the basis of their substantive ranks on November l 1966
Further it was directed that the proforma promotion granted to the appellant with retrospective effect would not also entitle him to any advantage in seniority as he was not eligible to be appointed as Assistant Manager according to the recruitment and promotional rules of the Department
The inter se seniority of the respondents Nos 4 and 5 was directed to be fixed on the basis of their substantive appointments as on November 1 l966 and that the said respondents being in higher scale on that case would rank senior to the appellant
Being aggrieved by the said impugned Government order dated April 28 1982 the appellant moved a writ petition before the Himachal Pradesh High Court
The High Court however took the view that the seniority list once finalised alter integrations persons working in the Tourism Department and those coming from Punjab could not be reopened to the disadvantage of other persons
In that view of the matter the High Court as stated already dismissed the write petition
Hence this appeal by special leave
It has been already noticed that both the provisional and the final seniority lists were prepared without complying with the direction of the central Government as contained in the letter of the Joint secretary to the Government of India Ministry of Home affairs dated February 14
There was no attempt to determine the equivalent posts that is to say no endeavour was made by the Government to equate one post with another for the purpose of integration and determination of relative seniority instead the post as they were were placed in the seniority list
The Government also did not follow the directions of the Central Government in determining the relative seniority
One of the factors that should have been taken into consideration for the purpose of determination of relative seniority  as mentioned in the said letter of the joint Secretary is length of continuous service whether temporary or permanent in the equivalent post excluding periods for which an appointment is held in a purely stop gap or fortuitous arrangement
The appellant was admittedlypromoted to the post of District Public Relations Officer in the pay scale of Rs 250 500 on May 181966
It PG NO 1018 is not the case of any party that the promotion of the appellant was by way of any stop gap or fortuitous arrangement
The final seniority list as on November 1 1966 was prepared on September 13 1971
On November 1 1966 admittedly the appellant was holding the ex cadre post of the District Public Relations Officer
According to the said directions of the Central Government in preparing the relative seniority the position of the appellant as the District Public Relations Officer should have been taken into consideration
The Department utterly ignored the said direction of the Central Government and the appellant s substantive rank as the Reception Officer as on November 1 1966 was erroneously taken into consideration for the purpose of preparing the inter se seniority even though the appellant was on November 1 1966 not holding the substantive rank of Reception Officer but the post of the District Public Relations Officer in a temporary capacity
This omission on the part of the Department andor the Himachal Pradesh Government vitiates the final seniority list apart from the omission to equate one post with another for the purpose of integration
The final seniority list
as has been already observed is an anomalous one and does not depict the relative seniority among officers after integration in accordance with the directions of the Central Government
Mr Shankar Ghosh learned Counsel appearing on behalf of the respondents Nos 4 and 5 respondent No 5 has since died
submits that after the final seniority list was approved by the Central Government it had become final and it cannot he challenged in 1982 after 11 years
Further
it is submitted by him that the final seniority list has never been challenged by the appellant and accordingly
he cannot be allowed to challenge the same by filing a writ petition
It is true that the final seniority list was sent to the Central Government and presumably it was approved but because a seniority list has been approved but the Central Government it cannot be laid down as a rule of law that even though it has been illegally prepared in violation of the directions of the Central Government itself to the prejudice of the officer or officers concerned it cannot be challenged
Normally when a seniority list has been made final it should not be allowed to be challenged
But when a seniority list is prepared ignoring all just principles and also the rules framed or directions given by appropriate authority seriously affecting any officer it is always liable to be examined and set aside by the Court
We are therefore unable to accept the contention of the learned Counsel for the respondent No 4 that the seniority list having been made final after the approval of the Central Government cannot be challenged by the appellant
PG NO 1019 So far as the contention of the learned Counsel for the respondent No 4 regarding the challenge of the seniority list after 11 years is concerned it may be pointed out that it is not correct that no challenge was made by the appellant to the seniority list
Indeed in the Memorandum of the Commissioner Department of Transport  Tourism Himachal Pradesh dated August 7 1973 addressed to the appellant informing him of the decision of the Central Government to give to the appellant proforma promotion as Assistant Manager in the scale of Rs225 500 with retrospective effect referred to the appellant s representation dated June 30 1973
Apart from this representation the appellant had also made another earlier representation on June 3 1968 which has been admitted by the Government of Himachal Pradesh in paragraph 7 of the counter affidavit dated July 3 1982 affirmed on behalf of the respondents Nos
I and 2 by the Deputy Secretary Tourism to the Government of Himachal Pradesh
In the circumstances it is not correct to say that no representation was made by the appellant
It is true that the seniority list was prepared in 1971 but no prejudice was caused to the appellant by the seniority list as he was holding the position of District Public Relations Officer all through
Moreover the appellant was given proforma promotion by the Government on or about August 7 1973
It is only by the impugned order dated April 28 1982 that the Government accepted the representation of the respondents Nos 4 and 5 and directed that the inter se seniority of the appellant and of the said respondents was to be determined on the basis of their substantive ranks on November l 1966 and further directed that the respondents Nos 4 and 5 would tank senior to the appellant
The cause of action really arose to the appellant for moving the writ petition after he was communicated with the impugned order dated April 28 1982
In our opinion therefore there has been no unreasonable delay on the part of the appellant to challenge the impugned order and consequently the final seniority list
At this stage it may be stated that some contentions have been made on behalf of both the parties regarding the creation of the post of Assistant Manager in the Tourism Department under the rules framed on December 7 1967 relating to recruitment promotion and service conditions applicable to non gazetted officers of the Department of Tourism under the proviso to Article 309 of the Constitution of India
It may also be noticed that the post of Assistant manager created under the rules was subsequently abolished
In our opinion nothing turns out on the creation or abolition of the post of Assistant Manager
PG NO 1020 The next contention of Mr Ghosh is that no promotion with retrospective effect can be given to the disadvantage of others
In support of this contention learned Counsel has placed much reliance upon a decision of this Court in State of Himachal Pradesh vs Union of India  In that case a post was upgraded with retrospective effect and it was held that the State Government of Himachal Pradesh could not upgrade the post with retrospective effect without the sanction of the Central Government under section 826 of the Act
In the instant case we are not concerned with the question of upgradation of posts but with proforma promotion given to the appellant with retrospective effect from November 1 1966
The said decision in our opinion has no application to the facts of the instant case
Next Mr Ghosh has placed reliance upon another decision of this Court in N Subba Rao vs Union of India 1973 I SCR 945
That is a case under the States Reorganisation Act1955
It has been held that if there is any question of change of conditions of service it will have to be found out whether in the first place it amounts to change in the conditions of service and if so secondly to find out whether there was prior approval of the Central Government
One of the contentions that was advanced before this Court in the said case was that the retrospective regularisation and relaxation of rules by the State of Andhra Pradesh subsequent to the appointed would amount to change in conditions of service and conferment of new advantages on Andhra Pradesh Officers to the detriment of the Telengana Officer
In the instant case however the question of regularisation and relaxation of rules do not arise
What has been done in the present case is that a glaring injustice was done to the appellant by taking into account his substantive rank as the reception Officer on November 1 1966 while as a matter of tact on that date he was holding the position of District Public Relations Officer
that was done in violation of the directions of the Central Government and subsequently the Government rectified the mistake the by granting proforma promotion to the appellant with effect from June 4 1966 to the post of Assistant Manager equivalent to the post of District Public Relations Officer
It is however submitted by Mr Ghosh that as the previous approval of the Central Government was not taken as required to be taken under the provision to section 826 of the Act the Government order as contained in the Memorandum dated August 7 1983 read with that contained in the Memorandum dated March 3 1974 granting proforma PG NO 1021 promotion to the appellant as Assistant Manager in the scale of Rs225 500 with retrospective effect from June 4 1966 was illegal
In order to consider this contention we may refer to the provisions of sub sections 1 2 and 6 of section 82 of the Act which provide as follows 82
Provisions relating to other Services
1 Every person who immediately before the appointed day is serving in connection with the affairs of the existing State of Punjab shall on and from that day provisionally continue to serve in connection with the affairs of the State of Punjab unless he is required by general or special order of the Central Government to serve provisionally in connection with the affairs of any other successor State
2 As soon as may be after the appointed day the Central Government shall by general or special order determine the successor State to which every person refer red to in sub section 1 shall be finally allotted for service and the date with effect from which such allotment shall take effect or be deemed to have taken effect
3 to 5      6 Nothing in this section shall he deemed to affect on or after the appointed day the operation of the provisions of Chapter 1 of Part KIV of the constitution in relation to the determination of the conditions of service of persons serving in connection with the affairs of the Union of any State Provided that the condition of service applicable immediately before the appointed day to the case of any person referred to in sub section 1 of sub section 2 shall not he varied to his disadvantage except with the previous approval of the Central Government
Under the proviso to sub section 6 the conditions of service applicable immediately before the appointed day to the case of any persons referred to in sub section 1 or sub section 2 shall not be varied to his disadvantage PG NO 1022 except with the previous approval of the Central Government
Under sub section 1 and sub section 2 the persons referred to are those who immediately before the appointed day were serving in connection with the affairs of the then State of Punjab
In other words the respondents Nos 4 and 6 come within the purview of sub sections  1 and 2
In view of proviso to sub section 6 of section 32 the conditions of service applicable immediately before the appointed day to the respondents Nos 4 and 5 could not be varied to their disadvantage except with the previous approval of the Central Government
The said order granting proforma promotion to the appellant to the post of Assistant Manager with effect from June 4 1966 does not at all vary the conditions of service of the respondents Nos 4 and 5 applicable to them immediately before the appointed day
There is therefore no question of taking the previous approval of the Central Government as contemplated by section 826 of the Act
Indeed the said order was passed in rectification of the mistake committed by the Department of Tourism andor the State Government and for doing substantial justice to the appellant
We have already expressed our views as to the nature of the seniority list and the manner in which it was prepared in violation of the directions of the Central Government
The High Court has not considered the directions of the Central Government as contained in the said letter of the Joint Secretary dated February l4 1967 and the utter violation of the same by the Department andor the State Government in preparing the final selection list as indicated above
The High court as already stated has dismissed the writ petition of the appellant principally on the ground that the seniority list once finalised after integrating the persons working in the Tourism Department and those coming from Punjab cannot be reopened to the disadvantage of the other persons without considering that the final seniority list was made without complying with the directions of the Central Government to the prejudice of the appellant
In the circumstances the judgment of the High Court cannot be sustained
For the reasons aforesaid the appeal is allowed
There will however be no order as to costs
The impugned order dated April 28 1982 and the judgment of the High Court are set aside
The name of the appellant shall be placed above that of the respondents Nos 4 and 5 since deceased in the final seniority list
The application of the interveners are also disposed of accordingly


Summary:
The detenu in the writ petitions filed by the petitioners under Article 32 of the Constitution belonged to the Security Unit of Delhi Police
While on duty they were alleged to have stopped a rickshaw puller who was carrying some goods to a transport company
They caught hold of him and started beating him and asked for a receipt for the goods
Thereafter they removed the goods from the rickshaw and went away in a TSR The aforesaid goods was recovered from their possession and a case under Section 39234 IPC was registered against them
Thereafter they were arrested and placed under suspension
The court however released them on bail
While the case was under investigation
the Commissioner of Police Delhi detained them us 32 of the on the ground that the above criminal activity of the detenu has created a sense of insecurity in the minds of public at large and is pre judicial to that maintenance of public order
It was contended on behalf of the petitioners that the said orders are bad in law since the ground of detention has no nexus to thepublic order  but purely a matter for law and order 
Counsel for the respondents on the other hand argued that though the incident in question was a simple case of robbery since it was committed by persons to longing to the disciplined police force it would of certainly disturb the public safety in the life of the community with a sense of insecurity in their minds and therefore the detention orders were justified
Allowing the writ petitions HELD 1 The orders of detention are quashed
The detenu Ram Ratan and Hawa Singh are set at liberty forthwith
1030F PG NO 1023 PG NO 1024 2 The law of preventive detention is not different to police personnel
It is the same law that is applied to police as well as to public
Therefore this Court cannot apply a different standard in respect of acts individually committed by any police officer
1027D 3i The subjective satisfaction of the detaining authority with respect to the persons sought to be detained should be based only on the nature of the activities disclosed by the grounds of detention
The grounds of detention must have nexus with the purpose for which the detention is made
1027E 3ii The impact on public order  and law and order  depends upon the nature of the act the place where it is committed and motive force behind it
If the act is confined to an individual without directly or indirectly affecting the tempo of the life of the community it may be matter of law and order only
But where the gravity of the act is otherwise and likely to endanger the public tranquility it may fall within the orbit of the public order 
What might be an otherwise simple law and order  situation might assume the gravity and mischief of a public order  problem by reason alone of the manner of circumstances in which or the place at which it is carried out
Necessarily much depends upon the nature of the act the place where it is committed and the sinister significance attached to it
1028C E In the instant case the offence was committed by two misguided police men under the cover of darkness with the assistance of a member of the public
It is an isolated criminal case with no sinister significance attached to it
It way certainly suicidal to those two police personnel
But it seems to that 110 connection whatsoever to disturb the public order  having regard to the circumstances of the case
1030D E Superintendent Central Prison Fatehgarh vs ram Manohar Lohia  Ayya Alias Ayub vs The State of UP Aziz vs The Distt
Magistrate Burdwan  Ors  and Mohd Dhana Ali Khan vs State of West Benal
1975 Suppl
SC 124 followed