Case: Gurcharan Dass Vaid Vs. State Of Punjab &amp; Ors

The appellant was an Assistant Grade Clerk in the Police Department in the State of Punjab prior to its Reorganisation. Respondent 4 was also occupying a similar post in the Patiala and East Punjab States Union (hereinafter called Pepsu) as Head Assistant which was equivalent to the post of an Assistant. At the time of the States reorganisation a provisional list of the persons in this service was prepared and published in 1957 in which the 4th Respondent was given 36th place while 5 others namely Prakash Chand, Jaswant Singh, Gurcharan Dass Vaid (the Appellant), Santokh Singh and Hem Raj were given 17th, 18th, 19th, 20th and 21st place respectively. Respondent 4 appealed to the Government of India which under the State Reorganisation Act 1956 was the competent authority to determine this question, against his seniority in the provisional list. While this appeal was pending promotions were made and Prakash Chand and Jaswant Singh were promoted as Deputy Superintendent (Office) on8 while the Appellant was promoted on, Hem Raj and Santokh Singh on. After these promotions were given the Government of India accepted the appeal of Respondent 4 on9 and placed him at serial No. 16 in the provisional seniority list i.e. over Prakash Chand. This decision was communicated to the Inspector General of Police on the 18th August 1959. The Inspector General of Police in the meanwhile had promoted on 7th December 1959 five other persons as officiating Deputy Superintendents who were also juniors to Respondent 4 and were in fact junior even to the first five who were earlier promoted. The respondent appealed on0 against the first and second batch of promotions made overlooking his seniority.

Court's reasoning:
This averment has been made in the affidavit of the appellant but as we said, that since there is no specific order of the Government superseding Respondent 4 we cannot accept this contention as valid. This contention however is to a large extent contradicted by the fact that soon thereafter on the 22nd March 1960 the Respondent was promoted and assumed charge of his office2. The provisions of Section 127 of the States Reorganisation Act gave an overriding effect to the directions given by the Central Government which would prevail against rules of all other services6. The chronology of the various orders, representations, notifications etc. with respect to the contestants in this appeal show that even 16 years after the States Reorganisation Act the trouble relating to integration of services, fixation of seniority, promotions, provisional lists, confirmations and deemed dates etc. still continue to trouble the Courts, without really affording much satisfaction to the aggrieved persons mostly because of the confusion and complications which have been the result of long and protracted administrative action and interaction. In so far as this petition is concerned we find little difficulty in simplifying the issues to be determined by us. These are(1) whether Respondent 4 was senior in service as Assistant to the appellant, (2) whether Respondent 4 was superseded on merits and the appellant and others who were promoted in two batches were promoted purely on merit, (3) whether the directions of the State Government to give a date of confirmation to the 4th Respondent both as an officiating Deputy Superintendent and an officiating are ultra vires the powers of the State Government under the Rule or, (4) whether they were in accord with the directions of the Government of India under the States Reorganisation Act7. Admittedly Respondent 4 is senior to the appellant and over some others, who are without doubt senior to the appellant. As we understand, the appellant wants to take advantage of the fortuitous circumstance of respondent 4 not being promoted at the time when others who are juniors to him were promoted because in the provisional gradation list he was wrongly given a very low seniority, and which was rectified by the Government of India. Instead of giving effect to it by promoting him, the appointing authority was playing for time probably because they wanted to avoid reversion of the previous promotees and on that score wanted to justify their action in not promoting him on the ground that he was not fit. But as we have shown in the narration of facts even before his representation was rejected Respondent 4 was promoted, so that the main ground upon which the appellant relies for his continued seniority over him cannot be availed of. In so far as Respondent 4 is concerned he was unaffected by his representation being rejected, as he was already promoted, nor was his alleged unfitness appears to be a valid ground because he was found subsequently on a comparison of the records not only fit but superior in merit to Jaswant Singh a person senior to him and hence senior to the Appellant. This opinion was also confirmed by the State Public Service Commission and Respondent 4 was given a deemed date of promotion with effect from1 the date from which Jaswant Singh was promoted as an officiating Superintendent. Jaswant Singh does not appear to be aggrieved nor has he been made a party. The appellant however argues that Jaswant Singh was transferred to Haryana and so he has no ground for complaint. This contention cannot be valid because even if that be so the appellant should have challenged that order of 14th July 1967, as rectified on the ground of a typographical error by the letter of 2nd July, 1968, because as long as that order is valid he cannot claim seniority over Respondent 4. It cannot be that Respondent 4 is senior to Jaswant Singh a person admittedly senior to the Appellant and yet be considered junior to the appellant, which will be the effect, if the aforesaid order remains in forcebut this contention is again devoid of merit because Respondent 4s case was under consideration, that he was not superseded at any time except that his promotion was made late due to an error in the provisional list and that in any case among the promotees to the Superintendents post, Respondent 4 is definitely senior to the appellant by virtue of the orders of 14th July, 1967 and 2nd July, 1968It may however be mentioned that these rules do not apply to the persons governed by Section 115 of the States Reorganisation Act but only by those rules which immediately prior to the reorganisation governed them. In this case the Punjab Rules of 1933 will govern the appellant and Pepsu Rules of 1933 will govern Respondent 4. These rules are identical so that under Rule 8 and Clause (d) of the proviso to these rules the seniority of the members of the service holding the same posts shall be determined by the dates of their substantive appointment to such posts provided that if two or more members are subsequently appointed on the same date, in the case of members who are both or all recruited by promotion, seniority shall be determined according to seniority in the appointments from which the members are promoted. It is contended that these rules are repealed but in so far as the services which are to be governed by the provisions of the States Reorganisation Act their conditions of service are subject to the directions of the Government of India which determine their inter se seniority. Such directions, as we have noticed, had been given by the Government of India more particularly those dated the 18th April 1965 contained in Annexure GPursuant to this the Government of Punjab by its order dated 9th December 1966 (Annexure H) granted to Respondent 4 the deemed date of confirmation as Deputy Superintendent (Office) with effect from2 the date from which Shri Jaswant Singh officiating Deputy Superintendent (Office) was confirmed in his appointment. We have already discussed the position of the Appellants the seniority of Jaswant Singh in the post of officiating Superintendent and the same reasoning will apply equally to the position relating to his promotion to the Deputy Superintendents post. When confronted with the situation the appellant takes his stand on the 1960 Rules, which however, whatever be the merits of the contention thereunder, cannot apply because they were not issued with the previous approval of the Central Government under Section 115 and only those directions which the Central Government can give under Section 117 read with S. 127 of the Reorganisation Act will govern the inter se seniority of the appellant and Respondent 4The appellant says that in Raghavendra Rao v. Deputy Commr. South Kanara AIR 1963 SC 136 this Court had observed that the previous approval will be presumed. This construction would be a misreading of the judgment because in that case the Central Government had already in a Memorandum addressed to all State Governments after examining the various aspects agreed with the view of State Governments that it would not be appropriate to provide any protection in the matter of travelling allowance, discipline, control, classification, appeal, conduct probation and departmental promotion; in other words it means that the State Governments might, if they so desire, change service rules as indicated in the Memorandum, which would amount to previous approval within the proviso to Sec. 115 (7) to the making of the Mysore General Services (Revenue Subordinate Branch) Recruitment Rules 1959, so as to make them valid. The circumstances in which such a direction was given justified this Court from coming to the conclusion that previous approval was given to the making of the rulesIn any case in a subsequent decision of this Court in Mohammad Bhakar v. Y. Krishna Reddy, 1970 Ser LR 768 (SC)it was explained that generally the remarks like that contained in Raghavendra Raos case were not meant to lay down the proposition contended for namely that the previous approval of the Central Government was not required for prescribing departmental examinations as qualification for promotion. Any rule which affects the promotion of a person relates to his condition of service and therefore unless there be the approval of the Central Government in terms of proviso to. (7) of Sec. 115a rule which lays down the passing of certain departmental examination as a condition for promotion of a person who was an allottee to the new State of Mysore would be in violation of. (7) of Section 11510. There is our view no force in the contention urged by the Appellant before us that the Rules of 1960 made by the Punjab Government must be deemed to have received the previous approval of the Central Government. The proviso to. (7) of Sec. 115 is clear and categorical and therefore previous approval must not be presumed but must be either categorically given or that approval becomes unmistakably apparent from the correspondence between the State Governments and the Central GovernmentApart from this claim being unfair and unjust particularly having regard to the fact that the appellant is trying to canvass all kinds of technical contentions which are unwarranted in order to project his seniority over Respondent 4 who is admittedly senior to him, the direction of the Central Government and those of the State Government in implementation of those directions establish the seniority of the 4th Respondent over the appellant. The directions to which we have referred show that whatever promotions were made, have been made on the basis of the provisional gradation list prior to. Though they should not be disturbed, the claims of officers for future promotion on the basis of seniority determined in accordance with the principles stated therein was not to be prejudiced; namely that promotions made after1 on the basis of the provisional gradation list would be reviewed to the extent necessary to give effect to the claim of officers who are senior in the final gradation list to the officers who have been promoted and wherever applicable these direction should be treated as being without prejudice to the principles of promotion on merit. We have already dealt with the contentions that the Respondent 4 was denied promotion because he was found unfit and therefore the appellant and others must be deemed to be promoted out of seniority because of their merit. There is therefore no validity in the submission that Respondent 4 cannot be given a deemed date of confirmation either as a Deputy Superintendent or as officiating Superintendent. In fact we are informed by the learned Advocate General that no injustice has been done to the appellant because even his grouse that if he had got his seniority he would have been attached to the Inspector General and would have got Rs. 50/as allowance or special pay is no longer available to him because he is now occupying that post. It is also pointed out to us that the highest promotion that the Appellant or Respondent 4 can expect to have in the service is the post of Superintendent which both he and Respondent 4 are occupying. If either of them aspire to any post in a higher service that will not be determined by their inter se seniority but on a selection basis depending upon the respective merits. We only refer to this to indicate that even the sense of injustice which the Appellant appears to suffer from has no justification