Case: Amarjit Singh Ahluwalia Vs. The State Of Punjab &amp; Ors

that clause (2) (ii) of the memorandum dated 25th October, 1965 was in the nature of administrative instruction, not having the force of law, but the State Government could not at its own sweet will depart from it without rational justification and fix an artificial date for commencing the length of continuous service in the case of some individual officers only for the purpose of giving them seniority in contravention of that clause. That would be clearly violative of Articles 14 and 16 of the Constitution. The sweep of Articles 14 and 16 is wide and pervasive. These two articles embody the principle of rationality and they are intended to strike against arbitrary and discriminatory action taken by the State. Where the State Government departs from a principle of seniority laid down by it, albeit by administrative instructions, and the departure is without reason and arbitrary, it would directly infringe the guarantee of equality under Articles 14 and 16.It is interesting to notice that in the United States it is now well settled that an executive agency must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. Vide the judgment of Mr. Justice Frankfurter in Vitaralli v. Seaton, (1959) 359 US 535 at pp. 546-547 - 3 Law Ed (2nd Series) 1012. This view is of course not based on the equality clause of the United States Constitution and it is evolved as a rule of administrative law. But the principle is the same, namely, that arbitrariness should be eliminated in State action. If, therefore, we find that the order dated 4th December, 1967 gave an artificial date from which the continuous service of respondents Nos. 3 to 19 shall be deemed to have commenced, though in fact and in truth their continuous service commenced from different dates and it was thus in contravention of the principle of seniority laid down in clause (2) (ii) of the memorandum dated 25th October, 1965, it would have to be held to be void as being violative of Articles 14 and 16.10. We do not, however, think that the order dated 4th December, 1967 providing that the seniority of respondents Nos. 3 to 19 shall be reckoned from the date of their appointment namely, 8th April, 1964 constituted a departure from the principle of seniority laid down in clause (2) (ii) of the memorandum dated 25th October, 1965 The test for determining seniority in the integrated cadre laid down by clause (2) (ii) of the memorandum dated 25th October. 1965 was the length of continuous service from the date of appointment in the group. The appellant contended that continuous service in a post could commence only when the incumbent took charge of the post and not earlier and, therefore, though respondents Nos. 3 to 19 were promoted under the order dated 8th April, 1964, their continuous service in the posts of promotion in PCMS Class I did not commence until after 25th April, 1964 when they took charge of their respective posts of promotion and hence the length of their continuous service in PCMS Class I was less than that of Dr. Jagjit Singh and the appellant in Public Health Service, Class I. This contention is fallacious in that it fails to give sufficient importance to the words "from the date of appointment" and ignores the true meaning and effect of the order dated 8th April, 1964. First let us see what the words "date of the order of appointment" mean. Are they synonymous with "date of appointment"? We think not. An order of appointment may be of three kinds. It may appoint a person with effect from the date he assumes charge of the post or it may appoint him with immediate effect or it may appoint him simpliciter without saying as to when the appointment shall take effect. Where the order of appointment is of the first kind, the appointment would be effective only when the person appointed assumes charge of the post and that would be the date of his appointment. It would be then that he is appointed. But in a case of the second kind which is the one with which we are concerned since the order dated 8th April, 1964 appointed respondents Nos. 3 to 19 to PCMS Class I "with immediate effect", the appointment would be effective immediately irrespective as to when the person appointed assumes charge of the post. The date of his appointment in such a case would be the same as the date of the order of appointment. It is, therefore, obvious that so far as respondents Nos. 3 to 19 were concerned, the date of their appointment was 8th April, 1964 and the length of their continuous service in PCMS Class I was required to be reckoned from that date. It is true that respondents Nos. 3 to 19 did not assume charge of their respective posts of promotion until after 25th April, 1964, but that makes no difference because the length of continuous service is to be counted from the date of appointment on the hypothesis that once the appointment is effective the person concerned is in the post and his service in the post is deemed to have commenced though under the rules governing his conditions of service he may not be entitled to the salary and allowances attached to the post until he assumes charge of the post. The continuous service of respondents Nos. 3 to 19 in PCMS Class I, therefore, commenced from 8th April, l964 and since that was longer than the continuous service of Dr. Jagjit Singh and the appellant in Public Health Service Class I, which commenced only on 25th April, 1964, respondents Nos. 3 to 19 were entitled to be placed senior to Dr. Jagjit Singh and the appellant in the joint seniority list of the integrated PCMS Class I.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]The measure or yard-stick for adjusting inter se seniority of the officers coming from the two services should be the length of continuous service of each from the date of appointment in his group. This was the principle laid down in clause (2) (ii) of the memorandum dated 25th October, 1965 for bringing about integration of the two services by adjusting the inter se seniority of the officers in the integrated service. There was no occasion or need at that time to lay down any principle for determining seniority inter se Deputy Directors or Assistant Directors. The seniority of Deputy Directors or Assistant Directors inter se in Public Health Service Class I was already determined and known and clause (2) (ii) of the memorandum dated 25th October, 1965 in fact provided that the adjustment of inter se seniority in the integrated service according to the length of continuous service from the date of appointment should be subject to the condition that "the seniority of persons in the present seniority list will not be disturbed. Clause (2) (ii) of the memorandum dated 25th October, 1965 was, therefore, not intended to provide for seniority of Deputy Directors or Assistant Directors inter se in their parent service. Whatever was the inter se seniority of Deputy Directors or Assistant Directors in their parent service was not to be disturbed while adjusting the seniority of the officers in the integrated service and so also was the inter se seniority of the officers already in PCMS Class I not to be violated while fixing seniority in the integrated service. There can, therefore, be no doubt that on a proper interpretation of clause (2) (ii) of the memorandum dated 25th October, 1965 the principle of length of continuous service from the date of appointment was applicable to officers coming from both the services for the purpose of fixing their inter se seniority in the integrated service.8. Now, it is true that cl. (2) (ii) of the memorandum dated 25th October, 1965 was not a statutory provision haying the force of law and was merely an administrative instruction issued by the State Government in exercise of its executive power. But that does not present any difficulty, for it is now well settled by several decisions of this Court that where no statutory rules are made regulating recruitment or conditions of service, the State Government always can in exercise of its executive power issue administrative instructions providing for recruitment and laying down conditions ofargument urged on behalf of the State Government was that it was competent to it to fix an assumed date on which the continuous service of respondents Nos. 3 to 19 should be deemed to have commenced for the purpose of determining their seniority in the integrated service, and the order dated 4th December, 1967 was, therefore, not beyond its power. But we do not think this argument is well founded. Clause (2) (ii) of the memorandum dated 25th October, 1965 provided that the seniority of the officers in the integrated service shall be determined by reference to the length of continuous service from the date of appointment in the group within their respective service. What was, therefore, required to be taken into account was the actual length of continuous service from the date of appointment and not the length of continuous service reckoned from an artificial date given by the State Government. Now, it is true that clause (2) (ii) of the memorandum dated 25th October, 1965 was in the nature of administrative instruction, not having the force of law, but the State Government could not at its own sweet will depart from it without rational justification and fix an artificial date for commencing the length of continuous service in the case of some individual officers only for the purpose of giving them seniority in contravention of that clause. That would be clearly violative of Articles 14 and 16 of the Constitution. The sweep of Articles 14 and 16 is wide and pervasive. These two articles embody the principle of rationality and they are intended to strike against arbitrary and discriminatory action taken by the State. Where the State Government departs from a principle of seniority laid down by it, albeit by administrative instructions, and the departure is without reason and arbitrary, it would directly infringe the guarantee of equality under Articles 14 and 16.It is interesting to notice that in the United States it is now well settled that an executive agency must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. Vide the judgment of Mr. Justice Frankfurter inVitaralli v. Seaton, (1959) 359 US 535 at pp. 546-547 - 3 Law Ed (2nd Series)This view is of course not based on the equality clause of the United States Constitution and it is evolved as a rule of administrative law. But the principle is the same, namely, that arbitrariness should be eliminated in State action. If, therefore, we find that the order dated 4th December, 1967 gave an artificial date from which the continuous service of respondents Nos. 3 to 19 shall be deemed to have commenced, though in fact and in truth their continuous service commenced from different dates and it was thus in contravention of the principle of seniority laid down in clause (2) (ii) of the memorandum dated 25th October, 1965, it would have to be held to be void as being violative of Articles 14 and 16.10. We do not, however, think that the order dated 4th December, 1967 providing that the seniority of respondents Nos. 3 to 19 shall be reckoned from the date of their appointment namely, 8th April, 1964 constituted a departure from the principle of seniority laid down in clause (2) (ii) of the memorandum dated 25th October, 1965 The test for determining seniority in the integrated cadre laid down by clause (2) (ii) of the memorandum dated 25th October. 1965 was the length of continuous service from the date of appointment in the group. The appellant contended that continuous service in a post could commence only when the incumbent took charge of the post and not earlier and, therefore, though respondents Nos. 3 to 19 were promoted under the order dated 8th April, 1964, their continuous service in the posts of promotion in PCMS Class I did not commence until after 25th April, 1964 when they took charge of their respective posts of promotion and hence the length of their continuous service in PCMS Class I was less than that of Dr. Jagjit Singh and the appellant in Public Health Service, Class I. This contention is fallacious in that it fails to give sufficient importance to the words "from the date of appointment" and ignores the true meaning and effect of the order dated 8th April, 1964. First let us see what the words "date of the order of appointment" mean. Are they synonymous with "date of appointment"? We think not. An order of appointment may be of three kinds. It may appoint a person with effect from the date he assumes charge of the post or it may appoint him with immediate effect or it may appoint him simpliciter without saying as to when the appointment shall take effect. Where the order of appointment is of the first kind, the appointment would be effective only when the person appointed assumes charge of the post and that would be the date of his appointment. It would be then that he is appointed. But in a case of the second kind which is the one with which we are concerned since the order dated 8th April, 1964 appointed respondents Nos. 3 to 19 to PCMS Class I "with immediate effect", the appointment would be effective immediately irrespective as to when the person appointed assumes charge of the post. The date of his appointment in such a case would be the same as the date of the order of appointment. It is, therefore, obvious that so far as respondents Nos. 3 to 19 were concerned, the date of their appointment was 8th April, 1964 and the length of their continuous service in PCMS Class I was required to be reckoned from that date. It is true that respondents Nos. 3 to 19 did not assume charge of their respective posts of promotion until after 25th April, 1964, but that makes no difference because the length of continuous service is to be counted from the date of appointment on the hypothesis that once the appointment is effective the person concerned is in the post and his service in the post is deemed to have commenced though under the rules governing his conditions of service he may not be entitled to the salary and allowances attached to the post until he assumes charge of the post. The continuous service of respondents Nos. 3 to 19 in PCMS Class I, therefore, commenced from 8th April, l964 and since that was longer than the continuous service of Dr. Jagjit Singh and the appellant in Public Health Service Class I, which commenced only on 25th April, 1964, respondents Nos. 3 to 19 were entitled to be placed senior to Dr. Jagjit Singh and the appellant in the joint seniority list of the integrated PCMS Class I.