Case: P.C.Sethi  Vs. Union Of Idnia

Office Memorandum of 1971 (Annexure 1), simply because it is not in conformity with the Office Memorandum of June 22, 1949. Besides, it is stated in the counter-affidavit of the Deputy Secretary (page 176 of the record) that "the Office Memorandum of 1971 is no longer operative. " We have seen that the rule of length of continuous service has been adopted in the case of different categories reconstituted in the Service in accordance with the administrative instructions of the Home Ministry issued after consultation with the Union Public Service Commission. The grievance that the said Office Memorandum should have been applied to all the temporary employees without the requirement of their being eligible in accordance with other instructions is without any foundation and cannot be upheld. A regular set of separate instructions governed the Service the existence of which cannot be explained if the Office Memorandum of June 22, 1949, alone were applicable, de hors these other instructions.It is further contended that rule 18 of the Rules is invalid in so far as it protects the seniority of the Assistants already observed violating the rule of continuous length of service amongst the entire group as a whole. This argument is untenable as the rule of continuous length of service cannot be invoked unless the temporary Assistants are absorbed in the Service in accordance, with the instructions which are valid. The entire group of temporary Assistants cannot claim seniority by the rule of length of continuous service without prior compliance with the conditions laid down under the instructions. Rule 1 8 is, therefore, not violative of article 14 or article 16 of, the Constitution on the score o f giving effect to the earlier or other instructions which are not found to be otherwise objectionable.That leaves one more question to be resolved, that is, with reference to the direct recruits. Once the temporary Assistants have been abs orbed in the service after they are found to be eligible in accordance with the instructions their claim for seniority cannot be superseded by the direct recruits if appointed after the formers absorption in the Service. This conclusion is based on the following factors:-Although the Scheme was made in July 1948 it was not enforced until November 1951. Even then there was no direct recruitment until 1956. The reasons for delaying direct recruitment can be found from a perusal of paragraph 15 of the 1948 Scheme itself, that it is essential from the point of view alike of economy and efficiency that as large a proportion is possible of the members of the service should be recruited on a permanent basis. If the Authorised permanent strength is reduced, effect should be given to such reduction by equivalent reduction in the following triennium of the rate of direct recruitment to the Service. It was, therefore, not the intention of the scheme to prejudice the seniority of the Assistants after their absorption in the Service nor such an intention was evident in the explanatory memorandum annexed to the Office Memorandum of October 25, 1948. In para 11 of the latter Memorandum it is unambiguously stated the "reinforcement is not required at the lowest level, namely the Assistants Grade. Here what is necessary is the weeding out of the poor quality material and the improvement of efficiency of the rest. through permanent tenure and better training d guidances. This is also clear from the instructions for the constitution and maintenance of the regular temporary establishment of Assistants dated August 26, 1968. Para 9 thereof provides that "all permanent vacancies in Grade IV not filled by direct recruitment on the results of Competitive Examination, held by the Union Public Service Commission shall be filled from the Regular Temporary Establishment in the order of Gazetted List" subject to certain provisions with which we are not concerned.It appears the quota, if any, of direct recruitment Was Dot enforced and perhaps for good reasons as noted above, the policy of the Government being different. Administrative instructions, if not carried into effect for obvious and good reasons, cannot confer a right upon entrants on later recruitment to enforce the same to supersede the claims of others already absorbed in the Service in accordance with the appropriate and valid instructions. Nothing was brought to our notice which could justify such a wholesale or en bloc discrimination in favour of those who suddenly enter the same grade of service by direct recruitment. It would, if permitted, be violative of article 16 of the Constitution which should never be overlooked in such cases.We are, therefore, clearly of opinion that the direct recruits who were appointed after the absorption of the Assistants, in conformity with the instructions of the initial constitution or in regular temporary establishment shall rank junior to the latter. We, therefore, direct that the seniority of such Assistants shall be adjusted and the seniority list corrected accordingly. T his will, however, not affect the cases of these Assistants who are already promoted and confirmed in a higher rank prior to the date of this petition.The learned counsel for the respondents strenuously contended that the petition may be dismissed on account of delay and laches. In view of the entire circumstances of the case and the hopes held out by the Government from time to time we are not prepared to accede to this submission. The petitioners also sought to take advantage of what they described as admission in Governments affidavits filed in connection with certain earlier proceedings of similar nature and other admissions in Parliament on behalf of the Government. We, are, however, unable to hold that such admissions, if any, which are mere expression of opinion limited to the context and also being rather vague hopes, not specific assurances, are binding on the Government to create an estoppel. In the view we have taken the case is distinguishable from Union of India and Ors. v. M. Ravi Yarma and Ors. etc. ([1972] 2 S.C.R. 992) principally relied upon by the petitioners.

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

Explanation:
1[ds]Para 2 of the Office Memorandum as quoted above clearly shows that paragraph 8 which contains the rule of seniority being length of continuous service was in terms applicable to the initial constitution of the grade of Assistants. The said rule of seniority should be taken as "the medal in framing the rules of seniority for other services". This would go to demonstrate that the Office Memorandum of June 22, 1949, is no bar to the Government in making separate provisions for the mode of constitution. and future maintenance of the service of Assistants. There is, therefore, no obligation under the aforesaid Office Memorandum on the part of the Government to enforce a rule of bald length of continuous service irrespective of other considerations then the service was sought to be reorganised and reinforced. As noticed earlier the service had to be reconstituted and the temporary Assistants properly observed keeping in view the question of quality and efficiency as well as at the same where regard being had to accommodate as large number as possible for gradual absorption. In doing so we are unable to hold that the Government has violated the provisions of articles 14 or 16 of the Constitution. The classification under the instructions for the constitution of regular temporary establishment in the manner done cannot be characterised as unreasonable in view of the object for which these had to be introduced in reconstituting the service to ensure security of temporary employees assistant with efficiency in the Service. There is no discrimination whatsoever amongst the equals as such nor any arbitrary exercise of power by the Government. In absence of any statutory rules prior to the Central Secretariat Rules 1962 it was open to the Government in exercise of its executive power to issue administrative instructions with regard to constitution and reorganisation of the Service as long as there is no violation of article 14 or article 16 of the Constitution. Subject to what is observed hereafter, as held above we do not find that the instructions of the Government made from time to time violated any fundamental rights of the petitioners. We should also observe that the various Office Memorandum and instructions including the Civil list of 1962 have not been challenged as invalid with the solitary exception of the Office Memorandum of 1971 (Annexure 1). This Office Memorandum again is based on the Civil List of 1962 the validity of which is not specifically challenged in this Petition. We, therefore, do not find any infirmity in the Office Memorandum of 1971 (Annexure 1), simply because it is not in conformity with the Office Memorandum of June 22, 1949. Besides, it is stated in the counter-affidavit of the Deputy Secretary (page 176 of the record) that "the Office Memorandum of 1971 is no longer operative. " We have seen that the rule of length of continuous service has been adopted in the case of different categories reconstituted in the Service in accordance with the administrative instructions of the Home Ministry issued after consultation with the Union Public Service Commission. The grievance that the said Office Memorandum should have been applied to all the temporary employees without the requirement of their being eligible in accordance with other instructions is without any foundation and cannot be upheld. A regular set of separate instructions governed the Service the existence of which cannot be explained if the Office Memorandum of June 22, 1949, alone were applicable, de hors these other instructions.It is further contended that rule 18 of the Rules is invalid in so far as it protects the seniority of the Assistants already observed violating the rule of continuous length of service amongst the entire group as a whole. This argument is untenable as the rule of continuous length of service cannot be invoked unless the temporary Assistants are absorbed in the Service in accordance, with the instructions which are valid. The entire group of temporary Assistants cannot claim seniority by the rule of length of continuous service without prior compliance with the conditions laid down under the instructions. Ruleis, therefore, not violative of14 or article 16 of the Constitutionon the scoregiving effect to the earlier or other instructions which are not found to be otherwisethe temporary Assistants have been abs orbed in the service after they are found to be eligible in accordance with the instructions their claim for seniority cannot be superseded by the direct recruits if appointed after the formers absorption in theare, therefore, clearly of opinion that the direct recruits who were appointed after the absorption of the Assistants, in conformity with the instructions of the initial constitution or in regular temporary establishment shall rank junior to the latter. We, therefore, direct that the seniority of such Assistants shall be adjusted and the seniority list corrected accordingly. T his will, however, not affect the cases of these Assistants who are already promoted and confirmed in a higher rank prior to the date of thisare, however, unable to hold that such admissions, if any, which are mere expression of opinion limited to the context and also being rather vague hopes, not specific assurances, are binding on the Government to create an estoppel.