T. C. Tiankham v. Union of India — 1967 DIGILAW 43 (GAU)

ORDER This is a writ petition filed under Article 226 of the Constitution of India by T.C. Tiankham, S.D.O., Bishenpur, against the Union of India, the Union Territory of Manipur and the Chief Commissioner of Manipur, who were added as respondents 1 to 3, for declaration that he is entitled to be confirmed in service with effect from 19-1-1950 or 1-4-1950 or 1-4-1952 and not from 13-12-1960. 2. The petitioner was first appointed as a Circle Officer in the then Manipur State on probation from 21-5-1947 (on a scale of Rs. 100-10-150). Vide Ext. A/1 and serial No. 2 of the Civil List of Manipur Government servants for 1953-54 - Land Revenue Department. He worked as Circle Officer upto 19-12-1947. After the Manipur State Constitution Act of 1947 came into force, the petitioner was nominated as a Minister in the then interim Council of Manipur. He worked from 20-12-1947 as Minister (vide Ext. A/2) on a fixed monthly salary of Rs. 300. He resigned and contested the election to the defunct Manipur State Legislative Assembly. He was elected and served as Speaker from 23-11-1948 to 15-10-1949 (Ext. C). 3. On 21-9-1949, there was an agreement between the Governor General of India and His Highness the Maharaja at Manipur. The latter ceded to the Dominion Government of India full and exclusive authority, jurisdiction and powers for and in relation to the governance of the State and agreed to transfer the administration of the Sate to the Dominion Government on 15-10-1949. The Central Government subsequently passed the Manipur (Administration) Order, 1949, which came into force on 15-10-1949 for the purpose of governance of the State of Manipur. Under para 7 of the said Order, the Ministers in Manipur State ceased to function and the Legislature of the State stood dissolved with effect from 15-10-1949. The Chief Commissioner, appointed under para 3 of the said order, also issued a notification dated 15-10-1949 to the same effect as in para 7 of the said order. The Government of India passed another order, viz. The States Merger (Chief Commissioners Provinces) Order 1950, which came into effect from 23-1-1950 for the- administration of the States of Manipur, Tripura and Vindhya Pradesh, as Chief Commissioners Provinces. 4. The petitioner was appointed by the 3rd respondent as the 4th Assistant to the Chief Commissioner with effect from 1-11-1949, as a temporary measure, on a monthly salary of Rs. 4. The petitioner was appointed by the 3rd respondent as the 4th Assistant to the Chief Commissioner with effect from 1-11-1949, as a temporary measure, on a monthly salary of Rs. 350 Vide Ext. A/4. He continued in service in that capacity upto 17-1-1950. On 18-1-1950, the petitioner was appointed by the 3rd respondent as a Deputy Collector in the scale of Rs, 200-350, as a result of the re-organised set up, consequent upon the merger of Manipur with Indian Territory. He was posted as S.D.O. Tamenglong. But, the conditions of the appointment were that the petitioner would be on probation for two years and that he would be confirmed only after (i) he passed the Departmental tests, (ii) qualified himself in survey and settlement work and (iii) proved himself fit for discharging his duties. Vide Ext. A/5. 5. Though the petitioner did not pass the Departmental tests, he was continued in service. In the meanwhile, the 2nd respondent Government of Manipur issued an order dated 16-5-1952, that the Government of India decided that the revised scales of pay should be given effect to in the various Departments, after they were re-organised and after inefficient and surplus personnel were retrenched and that the employees, who were retained after screening, would continue in service in the re-organised departments regarded. Vide Ext. A/7. Para 2 of Ext. A/7 reads that the Chief Commissioner desired that everybody, whom it was proposed to retain, should be confirmed as soon as the revised scales of pay were introduced. The Government of India also passed an order (vide Ext. A/8) on 28-2-1953 that the revised scales of pay were to be given with retrospective effect from 1-4-1950 to such personnel taken over from the former State and retained in service after proper screening and to whom the benefit of any ad hoc revision of scale of pay had not already been given. 6. The post of Deputy Collector, in which the petitioner was appointed, was regarded as Extra Assistant Commissioner, (E.A.C.) with effect from 1-4-1950. The petitioner, who was being continued in service was given the revised pay scale of Rs. 250-650 with effect from 1-4-1950. The pay scale was again revised to Rs. 250-800 with effect from 1-7-1959. The petitioner was given this scale also. It was subsequently revised to Rs. 350-1000 with effect from 1-4-1964. The petitioner, who was being continued in service was given the revised pay scale of Rs. 250-650 with effect from 1-4-1950. The pay scale was again revised to Rs. 250-800 with effect from 1-7-1959. The petitioner was given this scale also. It was subsequently revised to Rs. 350-1000 with effect from 1-4-1964. The 2nd respondent Government of Manipur issued a notice dated 12-1-1959 to the petitioner that if he did not pass the Assam Departmental tests, before 3-1-1960, his services would be terminated with effect from 4-1-1960. Vide Ext. A/12. The Petitioner made representations to the respondents 1 to 3 for his confirmation with retrospective effect. Vide Ext A/32. One of such representations. The Union of India decided on 13-12-1960 that the petitioner should be confirmed with effect from the said date, on which the Home Minister took the decision vide Ext. B/1. So, the third respondent passed an order dated 18-5-1961 (vide Ext. A/13) that the petitioner was confirmed as E.A.C. with effect from 13-12-1960 in pursuance of the letter of the first respondent, the Union of India as per Ext. B/1. The 2nd respondent also mentioned in the statement annexed to Ext. A/14 that it exempted the petitioner from passing the Departmental tests and confirmed him as Extra Assistant Commissioner with effect from 13-12-1960. 7. In this writ petition the petitioner challenges the orders of the respondents 1 to 3 covered by Exts. A/13 to B/1 regarding the date of 13-12-1960 with effect from which he was made permanent. 8. The first contention of the learned counsel for the petitioner is that as he was first appointed by the Manipur State Darbar on 21-5-1947 he was a pre-merger employee, that though there was break in service from 23-11-1948 to 31-10-1949 (when he was Speaker of the defunct Manipur State Legislative Assembly and unemployed from 16-10-1949 to 31-10-1949) the Chief Commissioner condoned the break in service under Article 422 of the Civil Service Regulations (vide Ext. A/6), that he was subsequently continued in service, that under Article VIII of the Manipur Merger Agreement dated 21-9-1949 he was entitled to continue in service on the same conditions on which he worked and that, therefore the new terms of service could not be less advantageous than those on which he served prior to the merger of Manipur with the Union Territory of India. This contention involves, firstly, determination of the effect of condonation of the break in service from 23-11-1948 to 31-10-1949 as per Ext. A/6 and secondly the bearing of Article VIII of the Manipur Merger Agreement dated 21-9-1949 on the facts of the petitioners case. With regard to the question regarding the condonation of service, the contention of the petitioners counsel is that the break in service was condoned for all purposes, while the contention of the Government Advocate is that it was condoned only for the purpose of pension. As rightly urged by the learned counsel for the respondents. Article 422 occurs in Part IV of the Civil Service Regulations regarding "ordinary pensions" Part IV consists of Chapters XV to XXI. Article 422 is found in Chapter XVII, relating to the "rules for reckoning service." So, evidently, Article 422 relates to condonation of interruptions in service only for the purpose of pension. It lays down that "upon such conditions as it may think fit in each case to impose, the authority competent to fill the appointment, held by an Officer at the time condonation is applied for were he to vacate that appointment, may condone all interruption in his service." But the learned counsel for the petitioner drew my attention to the Government of Indias decision, which is found at page 259 of Chaudris Compilation of the Civil Service Regulations 5th Edition Vol. I. It shows that the Government of India decided that a Government servant, who has been reinstated in the relevant grades under the provisions of the instruction 12 of the Instructions for Retrenchment, should be treated for the purpose of seniority as if he had not been reverted or retrenched to the lower grades at all. No doubt this decision of the Government of India, relates to the treatment of the period of break in service for the purpose of seniority. But, essentially Article 422 relates to condonation of interruptions in service only for the purpose of pension though Ext A/6 is silent on this point. But even assuming that the break is service was condoned not only for the purpose of pension, but for all purposes, still, the petitioner must show that he is entitled to rely on Article VIII of the Manipur Merger Agreement. But even assuming that the break is service was condoned not only for the purpose of pension, but for all purposes, still, the petitioner must show that he is entitled to rely on Article VIII of the Manipur Merger Agreement. In para 1 of Article VIII, the Government of India guaranteed either the continuance in service of the permanent members of the public service of Manipur on conditions, which would not be less advantageous than those on which they were serving, before the date on which the administration of Manipur was made over to the Government of India, or the payment of reasonable compensation. In this case, there is no evidence to show that the petitioner was a permanent member of the Manipur Public Service. On the other hand, Ext. A/1 shows that the petitioner was first appointed as Circle Officer on probation. Subsequently, he worked as Minister. He was never a permanent member of Manipur public service. So, Article VIII of the Manipur Merger Agreement does not apply to him. 9. The decisions on which the petitioners counsel placed reliance, in this connection, do not support his case. In State of Madras v. K.M. Rajagopalan, AIR 1955 SC 817 the Supreme Court laid down that, by virtue of the Indian Independence Act of 1947, a completely independent Dominion of India was set up with an independent Govt. free from any kind of fetters and that the effect of the political change was that the basic foundation of the contractual-cum-statutory tenure of Indian Civil Service came to an automatic and legal termination. In Rajvi Amar Singh v. State of Rajasthan. AIR 1958 SC 228 it was held that it is well-established that when one State is absorbed in another, whether by accession, conquest, merger or integration, all contracts of service between the prior Government and its servants automatically terminate, that thereafter those, who elect to serve in the new State and are taken on by it, serve on such terms and conditions as the new State may choose and that this is no thing more than an application of the principle that underlies the law of master and servant, when there is a change of masters. Vide also Athokpam Mombi Singh v. Officer on Special Duty, Manipur State Transport, Imphal, AIR 1960 Manipur 45 . Vide also Athokpam Mombi Singh v. Officer on Special Duty, Manipur State Transport, Imphal, AIR 1960 Manipur 45 . So, on the merger of Manipur State with the Union Territory of India, the service conditions of the petitioner prior to the merger came to an end. It is also doubtful whether he can take advantage of Article VIII of Manipur Merger Agreement, as he was not a party to the agreement and as it was only between the two High contracting parties viz. the erstwhile. Sovereign of Manipur and the new Sovereign State of India, In view of the decision of the Supreme Court in State of Assam v. Ajit Kumar Sarma, AIR 1965 SC 1196 . Still Article VIII does not apply to the petitioner, as he was not a permanent employee of the erstwhile State of Manipur. 10. Thus, the appointment of the petitioner, as Deputy Collector on 18-1-1950 (as can be seen from Ext. A/5) took place after the integration of Manipur with the Union Territory of India subject to certain conditions mentioned therein. The post was regarded as Extra Assistant Commissioner with effect from 1-4-1950. So he had been in service from 18-1-1950 to 31-3-1950 as Deputy Collector and from 1-4-1950 as Extra Assistant Commissioner and he continued ever since. He was given the first revised pay scale of Rs. 250-650. He was also given the subsequent revised scale of Rs. 250-800 with effect from 1-7-1959. He was given 3 advance increments for good work. Vide Ext. A/9. But he did not pass the Departmental tests, the passing of which was one of the conditions to be satisfied, before he could be confirmed, according to the terms of his appointment as seen from Ext. A/5. 11. The contention of the learned counsel for the petitioner with regard to the above aspect of the case is two fold. His first contention is that the respondents did not make any local arrangement for conducting the Departmental tests until 29-5-1951, but that as can be seen from Ext. A/11 the third respondent brought into force the Assam Government Rules for the conduct of the Departmental Examinations with effect from 29-5-1951, and that, therefore, the respondents waived the condition of the service of the petitioner, that he must pass the Departmental tests before he was confirmed. A/11 the third respondent brought into force the Assam Government Rules for the conduct of the Departmental Examinations with effect from 29-5-1951, and that, therefore, the respondents waived the condition of the service of the petitioner, that he must pass the Departmental tests before he was confirmed. But, it has to be noted that the respondent introduced the Departmental tests in Manipur with effect from 29-5-1951 and before the expiry of the period of two years from 18-1-1950, the date of appointment of the petitioner. So, he had ample opportunity to appear for the Departmental tests. As such, there is no force in the contention of the petitioners counsel that the respondents must be deemed to have waived the condition of service that the petitioner should pass the Departmental tests before he could be confirmed. On the other hand, Exts. A/10, A/11, A/12 and A/17, show that the respondents were insisting that the petitioner and the other Officers who were required to pass the Tests should pass the Departmental tests before they could be confirmed. The Period of probation of the petitioner was also being extended. 12. The second contention of the petitioners counsel is that the petitioner was not discharged from service for his failure to pass the Departmental tests but that, on the other hand, one of the Deputy Commissioners issued a certificate as per Ext. A/19 dated 10-9-1957 that the petitioner completed his 2 years probationary period satisfactorily by 1-4-1952 and that, therefore, the petitioner must be deemed to have been made permanent. He relied on Parshotam Lai Dhingra v. Union of India, AIR 1958 SC 36 wherein the scope of Article 311 of the Constitution of India was discussed. In AIR 1960 Manipur 45 this court held that where a person had been appointed on probation to a substantive post, it cannot be said that he was appointed temporarily either for an indefinite period or for a specific period, that the Government can discharge him from service during the period of his probation in such a substantive post but that where he has not been so discharged and when once the probationary period is over, then he acquires a right to hold the post But this view must be held to have been considerably shaken by the Judgement of the Supreme Court in S. Sukhbans Singh v. State of Punjab, AIR 1962 SC 1711 . It was held that a probationer cannot, after the expiry of probationary period, automatically acquire the status of a permanent member of the service, unless of course the rules under which he was appointed, expressly provide for such a result Dhingras case. AIR 1958 SC 36 mentioned above was also referred to. In the present case there are no rules in Manipur which show that after the expiry of the period of probation, the petitioner became automatically confirmed in the post. On the other hand the terms of appointment of the petitioner evidenced by Ext. A/5 go to show that the petitioner was, to be confirmed only after he passed the Departmental tests. Far from there being any rule that the petitioner must be held to have been confirmed after the expiry of the period of probation Ext. A/5 negatives any such presumption and shows that the petitioner could not be confirmed until he passed the Departmental tests. The order of appointment of the petitioner in AIR 1960 Manipur 45 did not contain any conditions to be satisfied, before he could be made permanent. In the present case, however the terms of appointment of the petitioner contained a condition that the petitioner should pass the Departmental tests before he was confirmed. So, there is no substance in the contention of the petitioners learned counsel that he must be deemed to have been confirmed after the expiry of the probationary period of two years, which was, on the other hand, being extended by the respondents 2 and 3. 13. The next contention of the learned counsel for the petitioner is that according to the order of the second respondent the Government of Manipur, as per Ext. A-7 dated 16-5-1952 which shows that the Chief Commissioner desired that everybody out of the erstwhile while Manipur employees, who were screened retained and regarded should be confirmed and also affording to the order of the first respondent. Union territory of India as per Ext. A/8 that such members of the staff should be given revised scales of pay with effect from 1-4-1950 the Petitioner must be deemed to have been confirmed and given revised pay scale retrospectively with effect from 1-4-1950. Union territory of India as per Ext. A/8 that such members of the staff should be given revised scales of pay with effect from 1-4-1950 the Petitioner must be deemed to have been confirmed and given revised pay scale retrospectively with effect from 1-4-1950. But in view of my finding that the petitioner is not a "pre-merger" employee and that he was not employed as such pre-merger employee, the petitioner cannot take advantage of the above orders of the respondents. 14. Then, the material contention of the petitioners counsel is that, though the respondents confirmed the petitioner on account of compassionate or some other reasons, the date of 13-12-1960 with effect from which the confirmation was made to take effect is an arbitrary, artificial and discriminating date, which attracts Article 14 as well as Article 311 of the Constitution of India, and that, therefore, the order is liable to be modified by making the petitioner permanent with retrospective effect either from 19-1-1950 or 1-4-1950 or 1-4-1952. The first respondent was under the wrong impression that the petitioner worked as Deputy Collector for about 10 years continuously and, therefore, his representation for confirmation was considered favourably. But, it confirmed him with effect from 13-12-1960, the date on which the Home Minister took the decision. Thus, the first respondent relaxed the condition that the petitioner should pass the Departmental tests before he was confirmed. But, the date of 13-12-1960 as rightly contended by the petitioners counsel, is highly arbitrary, artificial and discriminating When once the first respondent took the decision for some reason or other that the petitioner should be confirmed, then the confirmation must be based on some principle, but it should not be arbitrary. There are at least two instances of officers of the same cadre and the grade, who were confirmed with retrospective effect from the next date on which they joined, even though they did not pass the Departmental tests. There is one officer, by name. Shri Haobam Ibungoyaima Singh, who was appointed temporarily on 13-6-1952 as S.D.O. cum E.A.C. (vide Ext B/2) Ext. A/16 shows that he was confirmed on 1-9-1952 with effect from 14-6-1952, that is, with effect from the very next day after he was appointed. According to the respondents, his order of appointment (Ext. B/2) did not contain any condition that he should pass the Departmental tests. A/16 shows that he was confirmed on 1-9-1952 with effect from 14-6-1952, that is, with effect from the very next day after he was appointed. According to the respondents, his order of appointment (Ext. B/2) did not contain any condition that he should pass the Departmental tests. Besides, they allege that his service was found satisfactory and that therefore, he was confirmed with the approval of the U.P.S.C. But Ext. A/1" dated 1-6-1953 shows that the said Offices, was directed to pass the Departmental tests his name is No. 3 in the list of Officers, who were directed to pass the tests. It appears that the said Officer made a representation to the second respondent to exempt him from passing the Departmental tests. He would not have made such a representation if it was not necessary for him to pass the tests. Ext. A/18, copy of order dated 14-7-1953, shows that his representation was rejected and that he was directed to pass the Departmental tests. But, Ext. A/15 statement shows that he was exempted from passing the tests. So, the contention of the respondents that the said Officer was not required to pass the tests and that, therefore, he was confirmed is not correct. Exts. A/19 and A/20, show that the then Deputy Commissioner, Manipur, certified that the petitioner also completed his probationary period satisfactorily. The fact that the petitioner was given 3 advance increments as evidenced by Ext. A/9 also shows that the petitioners work was found to be satisfactory. In such a case there was no reason for discriminating him and confirming him, with effect from 13-12-1960, while his co-equal Officer was confirmed with effect from 14-6-1952, the next day on which the latter was appointed. 15. Again, there is another instance where discrimination was made. Shri T. Kipgen was appointed on probation as Deputy Collector on the same date of 18-1-1950 when the petitioner was appointed as evidenced by Ext. A/5. The petitioner as well as Shri T. Kipgen and others were thus appointed en the same date and under the same order. He too was directed to pass the tests before he was confirmed. But, though he did not pass the tests, he was confirmed on 8-5-1957 as Assistant Secretary, with effect from 20-1-1950. A/5. The petitioner as well as Shri T. Kipgen and others were thus appointed en the same date and under the same order. He too was directed to pass the tests before he was confirmed. But, though he did not pass the tests, he was confirmed on 8-5-1957 as Assistant Secretary, with effect from 20-1-1950. The contention of the respondents is that Shri T. Kipgen was appointed as Assistant Secretary in the Secretariat under the same order, that he continued to hold the same, but that no Departmental tests were prescribed for the post of Assistant Secretary or Secretary and that, therefore, he was confirmed. This again is not wholly correct. For Ext. A/5 copy of the order of appointment of Shri T. Kipgen, shows that the conditions of appointment of the petitioner and Shri T. Kipgen were the same. His number is 2 in the names of the persons appointed in Ext 5. Though, he might have been subsequently appointed as Assistant Secretary, yet in view of the fact that he was first appointed as Deputy Collector and the specific condition of appointment that he would not be confirmed until he passed the Departmental tests, the respondents should not have confirmed him until he passed the tests. There is force in the petitioners contention that because Shri T. Kipgen is working in the Secretariat, he managed to set himself confirmed even without passing the Department tests, while the petitioner, who is working in the moffusil stations could not so manage. 16. Some more instances were also noticed by the petitioner in his writ petition. But, with regard to the above two officers, namely Shri H. Ibungoyaima Singh and Shri T. Kipgen, there is clear proof that equals were not equally treated. Article 14 of the Constitution of India guarantees the right to equality and lays down that the State shall not deny to any person equality before the law or equal protection of the laws within the territory of India. The essence of the right is very aptly summarised at page 261 of Basus Commentary on the Constitution of India Vol. I, 4th Edition that equality before the law means that among equals the law should be equal and should be equally administered and that like should be treated alike. Article 14 protects all persons from discrimination by the legislative as well as executive organs of the State. I, 4th Edition that equality before the law means that among equals the law should be equal and should be equally administered and that like should be treated alike. Article 14 protects all persons from discrimination by the legislative as well as executive organs of the State. Vide Note 8, page 2673 of AIR. Manual Vol. 3, 2nd Edition, Vide also Kishan Singh v. State of Rajasthan, AIR 1955 SC 795 , wherein it was laid down that Article 14 of the Constitution of India prohibits unequal treatment of persons similarly situated. As against these authorities, the learned counsel for the respondents relied on Jyoti Pershad v Administrator for the Union Territory of Delhi AIR 1961 SC 1602 , wherein the rules or guidance for the interpretation of Article 14 of the Constitution of India were laid down. But, the important test whether equals have been equally treated is a common one. So, the order of the first respondent as per Ext. B/1 in so far as it relates to the date of 13-12-1960 with effect from which the confirmation is to take effect is discriminating and offends the provisions of Article 14 of the Constitution of India. 17. There is also another decision of the Supreme Court in D.R. Nim v. Union of India, Civil Appeal No. 371 of 1965 (reported in AIR 1967 SC 1301 ) which has material bearing regarding the date, with effect from which the confirmation was ordered to take effect. The Union of India chose one date arbitrarily for determining the date of seniority of the appellant in that case. The Supreme Court held that the Central Government could not pick out a date from a hat and say that the period prior to that date would not be deemed to be approved by the Central Government. In this case also the fixation of the date of 13-12-1960 cannot be said to be based on any principle. According to the respondents, if they took the decision on some other date, then that date would be the date from which the petitionerwould be confirmed. So, the date of 13-12-1960 is artificial, arbitrary and discriminating. 18. Again, it has to be noted that the arbitrary fixation of the date affects the seniority and emoluments of the petitioner and entails penal consequences, which attract the provisions of Article 311 of the Constitution of India. So, the date of 13-12-1960 is artificial, arbitrary and discriminating. 18. Again, it has to be noted that the arbitrary fixation of the date affects the seniority and emoluments of the petitioner and entails penal consequences, which attract the provisions of Article 311 of the Constitution of India. For this reason also, the order in so far as it refers to the date of 13-12-1960 is liable to be quashed. 19. Inasmuch as Shri T. Kipgen, who was appointed along with the petitioner on 18-1-1950 was confirmed with effect from, 20-1-1950, though he did not pass the required Department tests, it stands to reason as well as justice that the petitioner should also be confirmed with effect from the same date of 20-1-1950. 20. In the result, the writ petition is allowed. The respondents are directed to fix the date as 19(20 ?)-1-1950, instead of 13-12-1960 as the date, with effect from which the petitioner is confirmed. As the respondents confirmed the petitioner merely out of compassionate grounds by exempting him from passing the Departmental tests, I direct the parties to bear their respective costs. Petition allowed.