Case: S.K. Ghosh &amp; Another Vs. Union of India &amp; Others

1. S. K. Ghosh and A. M.. Narula, the two petitioners in this petition under Article 32 of the Constitution, appeared for the examination held in October, 1945 for recruitment to the Indian Audit and Accounts Service and other Allied Central Services. On the basis of the result of the examination both of them were selected for appointment to the Postal Superintendents Service Class II. Petitioner No. 1, S. K. Ghosh, joined a post in that Service on probation with effect from 9th April, 1947, while petitioner No 2, A. M. Narula joined as a probationer on 11th February. 1947. At that time there was no Class I Service in the Postal Department. In Class II Service, to which these two petitioners were appointed. recruitment was made by a competitive examination to the extent of 50 per cent. while the remaining 50 per cent posts were filled by promotion from lower cadres of the Department.2. On 24th May 1948, the Government sanctioned the creation of Indian Postal Service Class I with four gradesDirectors of Postal Services, Grade(ii) Directors of Postal Services , Grade II;(iii) Senior Time Scale, and(iv) Junior Timedecision of the Government was communicated to the Director-General Posts and Telegraphs, by their letter dated 13th November, 1948, which also laid down the manner of recruitment to the Service and the various sources from which recruitment was to be made. The normal rule laid down was that appointments to the junior time-scale were to be made by direct recruitment against 75 per cent of the vacancies and the remaining 25 per cent were to be filled by promotion by selection of the best officers in the Postal Superintendents Service Class II, seniority being regarded only when all other qualifications were practically equal. To this rule, however, an exception was laid down to the effect that all initial appointments to the time scale cadres of the Indian Postal Service Class I consisting of 64 posts (23 in the senior scale and 41 in the junior scale) were to be made by promotion from amongst officers of Postal Superintendents, Service Class II by selection Future recruitment was to be governed by the general rules cited above. Appointments to Grade II of the Directors of Postal Services was to be made by promotion by selection of the best officers in the senior time-scale of the Indian Postal Service, Class I, seniority being regarded only where other qualifications were practically equal. These promotions were to be made through a Departmental Promotion Committee consisting of the Director-General, Posts and Telegraphs, Senior Deputy Director General, Posts and Telegraphs, and a member of the Federal Public Service Commission Appointments to Grade I of Directors of Postal Services were to be made by promotion from Grade II of Directors in the order of seniority, provided the senior officer was considered fit for such promotion. The Service under these rules was, in fact, constituted with effect from 15th September 1948, and, even in cases where appointments were actually made later, they were made effective retrospectively from 15th September, 1948 for purposes of confirmation. The two petitioners were still probationers in Postal Superintendents Service Class II on 15th September, 1948; and, since only persons holding permanent posts in the cadre of Class II were to be considered for appointment to this Class I Service, the petitioners were not considered at the initial stage. Both the petitioners completed their probation in Class II Service in the year 1949. According to the petitioners, petitioner No. 1 was promoted to Class I Service on 2nd December, 1949 and petitioner No. 2 on 5th December 1949. They were shown as officiating in this Service. Subsequently, petitioner No. 1 was confirmed in the junior time-scale of Class I Service with effect from 11th May, 1951, while petitioner No. 2 was confirmed with effect from 12th February, 1952. In the meantime, direct recruitment to Class I Service was also made on the basis of competitive examinations held in the years 1948 and 1949, and a number of direct recruits were selected for appointment to this Service. Amongst them were K. Ramamurthi, N. C. Talukdar, Shiv Nath, S. L. Rajan and B. N. Dubey, respondents Nos. 3 to 7 in the petition. Besides these, a number of other direct recruits were also taken, but it is unnecessary to take notice of them, because the petitioners have sought relief against these five respondents only, the others having already retired by the time this petition was filed These five respondents joined Class 1 Service as probationers on various dates falling between 16th March, 1950 and 22nd November, 1950. Thereafter, the question of fixing seniority inter se between the direct recruits and officers promoted from Glass II Service came up for consideration of the Government communicated their final decision through the letter dated 30th January, 1957. The letter indicated the considerations that led the Government to fix the seniority of the various officers and to the letter was annexed an Appendix giving the seniority of junior time-scale officers. In this list, the two petitioners were placed at Nos. 31 and 32, while the five respondents were placed Junior to them at Nos. 33, 36, 41, 42 and 44. In the letter, the Government specifically stated that, in arriving at the decisions, the Government had given due consideration to all the representations submitted by officers on the subject and replies to those representations were not therefore, being sent separately. Only one representation of A. C. Mohamedi was still under consideration, but, with that representation, we are not concerned in the present writ petition. The Government added that the seniority list along with a copy of the memorandum was to be given to all the officers concerned for their information and they were to be informed that any further representations against the principles on the basis of which the seniority list had been prepared, would not be entertained. At the time when this seniority was fixed, the principles, which, according to the petitioners, were applicable, were those laid down in the Ministry of Home Affairs Office Memorandum dated 22nd June, 1949, paragraph 2 of which contained the decision that seniority in respect of persons employed in any particular grade should, as a general rule, be determined on the basis of the length of service in that Grade as well as service in an equivalent Grade, irrespective of whether the latter was under the Central or Provincial Government in India or Pakistan. The order of seniority laid down by the order dated 30th January, 1957 continued in force for a number of years.3. The Ministry of Home Affairs sub-sequently issued an Office Memorandum on 22nd December, 1959, laying down general principles for determining seniority of various categories of persons employed in Central Services. This Memo referred to various earlier Office Memoranda, including the one dated 22nd June. 1949 issued by the Home Ministry. Paragraph 3 of this Office Memo laid down that the instructions contained in those various Office Memoranda were thereby cancelled but made an exception in regard to determination of seniority of persons appointed to the various Central Services prior to the date of this Office Memorandum. The revised General Principles embodied in the Annexure to this Memorandum were not to apply with retrospective effect, but were to come into force with effect from the date of issue of these orders, unless a different date in respect of any particular service/grade from which these revised principles were to be adopted for purposes of determining seniority had already been or was to be thereafter agreed to by the Home Ministry. In para 2 of the Annexure it was again laid down that. subject to the provision of pare 3 below, persons appointed in a substantive or officiating capacity to a grade prior to the issue of these general principles were to retain the relative seniority already assigned to them or such seniority as might thereafter be assigned to them under the existing orders applicable to their cases and were to be en bloc senior to all others in that grade. It was, thus, the case of the petitioners that this Office Memorandum of 22nd December, 1959 did not in any way affect their seniority which had already been determined under the decision of the Government dated 30th January, 1957. Subsequently, the petitioners as well as respondents Nos. 3 to 7 were promoted as Directors. The common case of both the parties was that, by the time these promotions were made, the two grades of Directors of Postal Services were amalgamated into one single grade, and the promotions of the petitioners as well as respondents Nos. 3 to7 were to that grade. The case of the petitioners was that respondents Nos. 3 to 7 were promoted as Directors after the petitioners, so that the petitioners were recognised as seniors in the grade of Directors also. These promotions, according to the petitioners, were made some time in the years 1961 and 1962.4. Subsequently, by an Order dated 5th June, 1965, the Government suddenly revised the seniority of these various officers. The letter dated .5th June, 1 mentioned the subject as Revision of seniority in the erstwhile Junior Time Scale of the Indian Postal Service, Class I of direct recruits from the combined competitive examinations held in the years 1947. 1948 and 1949." As a result of this revision of seniority in the junior time-scale of the Indian Postal Service Class I, respondents Nos. 3 to 7 were shown as senior to the petitioners. The places allotted to respondents Nos. 3 to 7 were at Nos. 17, 20, 22, 23 and 25, while the two petitioners were placed below them at Nos. 26 and 27. Later, again, another Order was issued on 17th January, 1966, revising the seniority in the grade of Directors of Postal Services, and, in that revision also, respondents No. 3 to 7 were placed as seniors at Nos. 14, 15, 17, 18 and 19, while the two petitioners were down as junior to them at Nos. 20 and 21. The petitioners, consequently flied this petition under Article 32 of the Constitution challenging the revision of their seniority in the junior time scale by the order dated 5th June, 1965 as well as the revision of their seniority in the grade of Directors of Postal Services by the order dated 17th January. 1966.

Reasoning:
8. The principles for appointment to the posts of Directors of Postal Services were initially laid down by the Home Ministrys Memorandum dated 24th May, 1948, to which we have already referred. As indicated earlier, it was laid down that appointments to Grade II of the Directors of Postal Services were to be made by promotion by selection of the best officers in the senior time scale of the Indian Postal Services Class I, seniority being regarded only where other qualifications were practically equal From the very first stage, therefore, appointments to the posts of Directors of Postal .Services were to be made on the basis of merit and not on the basis of seniority. Seniority was to be taken into account only if other qualifications were practicallyRule also makes it clear that appointment to the grade of Directors of Postal Services is made by selection and not on the basis of promotion in accordance with seniority The presumption exists that the promotion of the petitioners and respondents 3 to 7 to the grade of Directors must have been made in accordance with these instructions and rules, so that the appointment of all these concerned parties as Directors was based on merit to be taken into account at the time of selection and not on seniority in the time scale of Class I Service Once a member of the Class I Service in the time scale was selected for promotion to the grade of Director and given seniority over another officer selected later, the seniority so determined as a result of selection could not be made dependent on the seniority in the time scale.It is clear that, in these circumstances, even if there was justification for revising the seniority inter se of the petitioners and respondents 3 to 7 in the time scale of Class l Service that revision of seniority could not in any way affect their order of seniority in the grade of Directors to which they were promoted on the basis of selection in accordance with the rulesIt is, therefore, clear that even if it be held that the order of the Government dated 5th June, 1965 revising the seniority of these officers in the junior time scale was valid the order dated 17th January 1966 revising the seniority in the grade of Directors of Postal Services is not valid and justified. The seniority in the grade of Director of Postal Services was not dependent on the inter se seniority in the junior time scale and any alteration in the seniority in the latter could not form the basis for revising the seniority in the former grade. No other justification for the revision of the seniority in the grade of Directors of Postal Services was put forward on behalf of any of the respondents. It is, thus, clear that the revision of seniority in the grade of Directors of Postal Services by the order dated 17th January, 1966 was not based on any rule or appropriate principle applicable to determination of seniority in that grade, and must, therefore be held to be totally arbitrary. Such an arbitrary order, which affects the civil rights of the petitioners in respect of future promotion must therefore be struck down as violating Art. 16 of the Constitution.Once this order dated 17th January, 1966 is quashed, the petitioners will no longer be affected in future by the revision of their seniority in the time scale of the Service by the order dated 5th June, 1965 and consequently. we have refrained from going into the question of the validity of that order The petitioners are not claiming any relief on the basis of the invalidity of the order dated 5th June, 1965 which would give to them any additional benefit over and above the relief which they can obtain on the order dated 17th January 1966 being quashed.