Case ID: 2381

Judgment:
No. 131 of 1966. Petition tinder article 32 of the Constitution of India for the enforcement of fundamental rights. A. K. Sen and K. B. Mehta	 for the petitioners. B. Sen and R. H. Dhebar for respondents Nos. 1 and 2. B. P. Maheshwari and section M. Jain	 for respondent No. 4. The Judgment of the Court was delivered by Bhargava	 J. section K. Ghosh and A. M. Narula	 the two petition ers 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	 section 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 11 th 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. On 24th May	 1948	 the Government sanctioned the creation of Indian Postal Service Class I with four grades as follows (i) Directors of Postal Services	 Grade I	 (ii) Directors of Postal Services	 Grade II	 (iii) Senior Time Scale	 and (iv) Junior Time Scale. This decision 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 appointment to the junior time scale were to be made by direct recruitment against 75% of the vacancies and the remaining 25% 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 rule cited above. Appointments to Grade IT of the Directors of Postal Services was to be made by promotion by selection 633 of the best officers in the senior time scale of the Indian Postal Service	 Class 1	 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 11 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 15 th 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 11 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 11 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 IIth 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. Ramamurti	 N. C. Talukdar	 Shiv Nath	 section 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 Class II Service came up for consideration of the Government. 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 speci 634 fically 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 these 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. The Ministry of Home Affairs subsequently 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 para. 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. the case of the petitioners that this Office Memorandum of 2nd December	 1959 did not in any way affect their seniority 635 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 to 7 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. Subsequently	 by an Order dated 5th June	 1965	 the Govern ment suddenly revised the seniority of these various officers. The letter dated 5th June	 1965 mentioned the subject as "Revision of seniority in the erstwhile Junior Time Scale of the Indian Postal Service	 Class 1 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 1	 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 Nos. 3 to 7 were placed as seniors at Nos. 14	 15	 17	 18 and 19	 while the two petitioners were shown as junior to them at Nos. 20 and 21. The petitioners	 consequently	 filed 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. The principal round	 on which these orders were challenged by the petitioners	 was that they had been made by the Government arbitrarily in exercise of their power to fix seniority and. by such arbitrary action	 had adversely affected the rights of the petitioners vis a vis respondents Nos. 3 to 7 in violation of Article 16 of the Constitution. The point taken was that the seniority having once been fixed by the Order dated 30th January	 1957 in accordance with the Rules then in force could not be arbitrarily disturbed by the Government	 particularly when the Rules were never revised subsequently	 nor were any fresh Rules issued governing the seniority of these officers who had been appointed to the junior time scale of Class 1 Service prior to 30th January. Learned counsel appearing for the petitioners formulated four different grounds for challenge of the Order dated 5th June	 636 1965	 all leading to the contention that that Order violated article 16 of the Constitution	 or was passed against the principles of natural justice. In addition	 the Order dated 17th January	 1966 was challenged on one more ground	 viz.	 that	 even if it be held that the re fixation of seniority in the junior scale of Class I Service was justified	 the Order of the Government revising the seniority in the grade of Directors was in any case void and illegal. This point was urged on the basis that appointment to the Directors ' grade was made on the basis of selection and there could not be automatic revision of seniority in that grade consequent upon the revision of seniority in the time scale of the Service. The petition was opposed by respondents 1 and 2	 the Union of India	 and the Director General of Posts and Telegraphs	 as on behalf of some of the other respondents. Most of the facts put forward by the petitioners have been admitted	 but the inferences and conclusions drawn by the petitioners as well as the submissions on their behalf in the writ petition were challenged. The principal contention for resisting the petition was that the order dated 30th January 1957 fixing the seniority had been made by mistake as a result of the Government having ignored Supplementary Rule 2(15)	 the effect of which was that for purposes of seniority the service of respondents 3 to 7 in junior time scale Grade I was wrongly taken as commencing from the date of their confirmation in the Service	 while	 correctly	 it should have been taken from the date on which these respondents joined as probationers. It was urged that	 on a correct interpretation of the Rules	 respondents Nos. 3 to 7 should have been held	 even initially	 to be senior to the petitioners in the _junior scale of the Class T. Service. It was further urged that	 since the revision of seniority in the junior time scale of Class I Service was justified and not arbitrary	 the consequential revision of seniority in the grade of Directors of Postal Services was also valid. Arguments were addressed at length on both aspects of the case	 but we think that it is not necessary for us in this case to decide the first point raised on behalf of the petitioners regarding the validity of the refixation of their seniority in the junior time scale of Class I Service by the order dated 5th June	 1965	 because the petitioners could even obtain adequate relief on the alternative ground that the revision of seniority in the grade of Directors by the order dated 17th January	 1966 was void. The peti tioners in para. 4 of their petition made a definite assertion that respondents 3 to 7 were all promoted as Directors after the petitioners. This factual assertion made in this paragraph has not been denied in any counter affidavit filed on behalf of the various respondents. In the course of arguments before us	 it was urged by learned counsel appearing for the respondents that the peti 637 tioners as well as respondents 3 to 7 were only shown as officiating in the grade of Directors in the Civil List and	 consequently we should not base our decision on acceptance of the allegation made 'by the petitioners that the petitioners and respondents 3 to 7 had all been promoted as Directors. We are unable to accept this submission. The entry in the Civil List is no proof that the petitioners and the live respondents have not been promoted in accordance with the Rules laid down by the Government for promotion. If it was a fact that there had been no promotion in com pliance with those Rules	 the assertion made on behalf of the petitioners in the petition should have been specifically controverted. The principles for appointment to the post of Directors of Postal Services were initially laid down by the Home Ministry 's Memorandum dated 24th May	 1948 to which we have already 	referred. As indicated earlier	 it was laid down that appointments to Grade It 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 1	 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 practically equal. it appears that	 after 'the two grades of Directors of Postal Services were amalgamated	 some fresh rules were promulgated. The relevant Rules have been brought to our notice by placing before us extracts from Posts and Telegraphs Manual Volume IV	 4th Edn.	 in which paragraph 153 mentioned that the rules for recruitment to the grade of Directors of Postal Services in the Indian Postal Service Class I in the Posts and Telegraphs Department are given in Appendix 6 A. A copy of Appendix 6 A has also been placed before us. The Appendix bears the heading "Rules for recruitment to the grade of Directors of Postal Services in the Indian Postal Services	 Class I in the Posts and Telegraph Department". Rule 2 in this Appendix lays down the scale of ' pay of the post in the grade which is admittedly Rs. 1	300 601	600. Rule 3 prescribes the method of recruitment and is as Follows: " Recruitment to posts in the grade shall be by selection from among the officers of the Senior Time Scale of the Indian Postal Service	 Class I		 one post being reserved for promotion of Presidency Postmasters	 on the basis of selection. " This Rule 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 638 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 I 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 rules. It 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 Directors 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 article 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. As a result	 we allow this petition and quash the order dated 17th January	 1966	 revising the seniority of the petitioners and respondents Nos. 3 to 7 in the grade of Directors of Postal Services. In the circumstances of this case	 we direct that the petitioners 'will receive their costs from respondent No. 1. ' V.P.S. Petition allowed. L7Sup. C.I./68 2	500 Sec. VI 24 4 69 GIPF.

Summary:
The petitioners were promoted from the Postal Superintendents Service Class II to the time scale of Class I Service	 and	 respondents 3 to 7 were direct recruits to the time scale of Class I service. On 30th January 1957	 Government fixed the inter se seniority between them by showing the petitioners as senior to respondents 3 to 7. Subsequently	 the petitioners were promoted as Directors of Postal Services	 and some time later	 respondents 3 to 7 were also promoted as Directors so that	 the petitioners were senior to respondents 3 to 7 even in the grade of Directors. On 5th June 1965 Government revised the seniority of these officers in the time scale of Class I service	 by showing respondents 3 to 7 as senior to the petitioners	 and on 17th January 1966	 their seniority in the grade of Directors was also revised placing respondents 3 to 7 as senior to the petitioners. The petitioners challenged the two orders in a petition under article 32. The Government justified its orders on the grounds	 that	 the order of 30th January 1957 was passed by mistake as a relevant rule	 namely	 Supplementary r. 2(15) was not given effect to	 and	 since the revision of seniority in the time scale of Class I Service was justified	 the consequiential revision of seniority in the grade of Directors was also valid. HELD : The revision of seniority in the grade of Directors by order dated 17th January 1966 was not based on any rule or applicable principle. it was therefore arbitrary and violative of article 16 and must be struck down. Once that order was quashed	 the petitioners would not be affected by the order dated 5th June 1965	 and therefore	 it was not necessary to decide on its validity. [638 E G]. Rule 3 of the Rule	; for recruitment lo the grade of Directors of Postal Services in Indian Postal Services Class 1. in the Posts and Telegraphs Department	 shows that appointment to the grade of Directors is made by selection and not on the basis of seniority in the time scale. It Must therefore be presumed that the promotion and appointment	 of the petitioners and respondents 3 to 7 as Director 	 was based on merit	 which was 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 Class I Service in the time scale was selected for promotion to the grade of Directors 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. Therefore	 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 I Service	 that revision could not in any way affecttheir order of seniority in the grade of Directors to which they were promoted on the basis of selection is accordance with the Rules. [637 G H;] 638 A C].