Research › Browse › Judgment

Patna High Court · body

1972 DIGILAW 56 (PAT)

GIRIJA SHANKAR MAIRH v. STATE OF BIHAR

1972-03-28

AKBAR HUSAIN, N.L.UNTWALIA

body1972
JUDGMENT : Untwalia, J. The petitioner, Shri Girija Shankar Mairh, in this case has prayed for a writ in the nature of a writ of mandamus to direct the State of Bihar (respondent no. 1) and the Secretary to the Government of Bihar, Department of Excise, Patna (respondent no. 2) to forbear from giving effect to the War Service Recruits (Pay, Pension and Seniority) Rules, 1969, a copy of which is Annexure 1 to the writ application, in so far as they affect the petitioner. It may be mentioned here that during the pendency of this writ application the said rules were susperseded and replaced by another set of rules called the War Service Recruits (Pay, Pension and Seniority) Rules, 1971. Except the changing of the word ‘or' at the end of Clause (a) of Rule 4 to 'and', word by word, the rules of 1971 are identical with those of 1969. We have, therefore, permitted the petitioner to add a prayer in this writ application for a writ of mandamus to restrain respondents 1 and 2 to forbear from giving effect to the rules of 1971. 2. The relevant facts which may be stated for the disposal of this writ application are these. The petitioner was appointed by direct recruitment as Inspector of Excise in the year 1944 and was confirmed in the post in the year 1946. In the year 1958 he was substantively promoted and confirmed in the rank of Superintendent of Excise. This is the substantive rank which he held on the date of the filing of the writ application and still holds, although subsequently he was promoted to the rank of Assistant Commissioner of Excise and then as Deputy Commissioner of Excise; but he is not confirmed in either of those posts. Shri H. E. Christensen, respondent no. 3, was in active war service from the 4th December, 1938 to the 16th, June 1946 as Nursing ORDER :ly Grade 1. Subsequently, he was appointed as Inspector of Excise on the 15th November, 1946. In the year 1954 a list was prepared in accordance with Rule 3(iii) of the rules framed by the Governor of Bihar for regulation of the recruitment of the Superintendent and Deputy Commissioner of Excise, in which list the names of 16 Inspectors of Excise, in ORDER :of preference, were mentioned. In the year 1954 a list was prepared in accordance with Rule 3(iii) of the rules framed by the Governor of Bihar for regulation of the recruitment of the Superintendent and Deputy Commissioner of Excise, in which list the names of 16 Inspectors of Excise, in ORDER :of preference, were mentioned. They were found fit for appointment as Superintendent of Excise in temporary leave vacancies. The petitioner's name was in serial 9 of the said list and that of respondent no. 3 in serial 13. The list was approved by the Bihar Public Service Commission. A copy of the list is Annexure 2 to the writ application. Respondent no. 3 was substantively promoted to the post of Superintendent of Excise in the year 1959 with effect from the 7th March, 1959. It is not disputed that the petitioner was confirmed to the post of Superintendent of Excise earlier than respondent no. 3. 3. On the 9th September, 1960, respondent no. 3 preferred a representation to the C0mmissioner of Excise, Bihar, wherein he claimed certain benefits of War Service under a governmental instruction known as C. P. S. 7, a copy of the relevant extracts from which is Annexure 3 to the writ application. The case of respondent no. 3 was twice placed before the Bihar Public Service Commission in the years 1966 and 1957, and the Commission held th3.t respondent no. 3 was not entitled to the War Service benefits on the basis of C. P. S 7. Notwithstanding the opinion of the Commission, the State Government decided on the 10th February, 1968 to give War Service benefits to respondent no. 3 in terms of the said C. P. S. 7. The decision was communicated to the petitioner also on the 18th November, 1968; a true copy of this decision is Annexure 4 to the writ application. By this decision respondent no. 3 was placed not only above the petitioner but also above other officers of the Excise Department. A view was expressed in Paragraph 2 of this decision that on giving War Service benefits to Shri Christensen in the rank of Inspector of Excise, his position in the gradation list would be next to Shri P K. Mitra. On that basis Shri Christensen should have been eligible for substantive promotion as a Superintendent of Excise in the vacancy which was available in 1956. On that basis Shri Christensen should have been eligible for substantive promotion as a Superintendent of Excise in the vacancy which was available in 1956. Since the correct seniority had not• been fixed by them, his promotion to the rank of Superintendent of Excise in the vacancy which was available in 1956 had gone by default. In the meanwhile, however, Shri Christensen had been adjudged, in consultation with the Public Service Commission, suitable for appointment as Superintendent of Excise on an officiating basis in 1956 and he officiate d as a Superintendent of Excise in 1956 and then again continuously from 1957 till he was absorbed in a substantive vacancy which was available in 1959. It was, therefore, stated in paragraph 2 of Annexure 4 that considering the record of service of Shri Christensen and the fact that he had actually been adjudged fit to hold the rank of Superintendent of Excise in 1956, the Government felt satisfied that had the correct position about his placing in the gradation list been known when the question of filling up the vacancy available in 1956 was considered, Shri Christensen would have been substantively appointed in that vacancy. The decision, therefore, contained in paragraph 3 of Annexure 4 was that the Government had been "pleased to decide that to the matter of all future promotion above the rank of Superintendent of Excise, he would be deemed to rank senior to Shri B. L. Bhagat, notwithstanding his confirmation as a" Superintendent of Excise in 1959". Shri B. L. Bhagat was admittedly senior to the petitioner and hence by this ORDER :respondent no. 3 was placed above the petitioner also. 4. The ORDER :dated the 10th February, 1966 of the Government was challenged in C. W. J. C. No. 1180 of 1968 by Shri B. L. Bhagat and another. Before this ORDER :came to be made by the Government Shri Christensen had filed C. W. J. C. No. 938 of 1968 asking for a writ of mandamus to the Government for giving him benefits of seniority on the basis of War Service. Both the applications were heard together and disposed of on the 16th April, 1969 by a Bench of this Court. Both the applications were heard together and disposed of on the 16th April, 1969 by a Bench of this Court. It was held that the Governmental instruction known as C. P. S. 7 had spent its force on the 8th November, 1946 and could not be pressed into service to give War Service benefits to (Sic) seniority to Shri Christensen as he was appointed a week later, i.e. on 15th November, 1916. A few months after the delivery of this JUDGMENT : which had quashed the governmental ORDER :dated the 10th February 1968, the Governor of Bihar was pleased to make the 1969 War Service Recruits Rules in exercise of his powers under the proviso to Article 309 of the Constitution. These rules were made to come into force retrospectively with effect from the 8th November, 1946. The rules were framed and published on the 15th January, 1970. The petitioner rushed to this Court on the 11th February, 1970, obviously thinking that the rules were meant to enable the Government to reiterate its ORDER :dated the 10th February, 1968. It is undisputed that if the retrospective operation of the rules is valid then respondent no. 3 under Rule 3 of the Rules will be deemed to have been appointed as Inspector of Excise prior to the appointment of the petitioner and that way in that rank he will be senior to the petitioner. If that be so, then as per the decision taken on the 10th February 1968, it would follow that the State Government will reiterate its views contained in paragraphs 2 and 3 of the said decision and hold respondent no 3 senior to the petitioner even in the substantive rank of Superintendent of Excise. Hence, the petitioner has prayed for a writ of mandamus to restrain respondents 1 and 2 from giving effect to the Rules of 1969, as subsequently replaced by the Rules of 1971, so as not to affect the petitioner's seniority. 5. Counter-affidavits have been filed on behalf of respondents 1 and 2 as also on behalf of respondent no. 3. I have left out to recite the disputed facts which are not necessary to be decided. The facts stated above are not in dispute. 5. Counter-affidavits have been filed on behalf of respondents 1 and 2 as also on behalf of respondent no. 3. I have left out to recite the disputed facts which are not necessary to be decided. The facts stated above are not in dispute. Upon those facts it is contended on behalf of the petitioner that the War Service Recruits Rules, in so far as they retrospectively affect the seniority of the petitioner, are violative of Article 16 of the Constitution and hence they are constitutionally invalid; as the Governor, in exercise of his rule-making power under the proviso to Article 309, cannot violate the provisions of Part III of the Constitution. In answer it was contended on behalf of the respondents that the framing and promulgation of the rules do not by themselves infringe any right of the petitioner, nor do they violate Article 16 of the Constitution by their retrospective operation, and hence no relief can be given to the petitioner in this case. The petitioner may come to this Court after a fresh ORDER :is made by the Government on the basis of the War Service Recruits Rules on the lines of their decision dated the 10th February, 1968. The question which falls on our determination is which of the rival contentions is sound and fit to succeed. 6. The relevant rule which may be quoted from the War Service Recruits Rules, 1971 is Rule 3 (1) which runs as follows : "3. (1) (i) A 'War Service' recruit to a State Service or post shal1 be treated as a recruit of the year following the year in which he joined War Service or the year after he attained the minimum age for recruitment to that service, whichever is later. He shall be graded below the non-War Service candidates of the year of which he is considered a recruit; and (ii) all War Service Recruits of a particular year shall be graded inter se for purpose of seniority according to their age." On the basis of the said rule, a War Service Recruit like respondent no. 3 shall be treated as a recruit of the year 1939 or 1940 (it is not clear whether he was appointed in War Service in the year 1938 or 1939) as an Inspector of Excise. 3 shall be treated as a recruit of the year 1939 or 1940 (it is not clear whether he was appointed in War Service in the year 1938 or 1939) as an Inspector of Excise. On conferring this notional benefit in regard to the year of recruitment, it is plain that respondent no. 3 would be deemed to be senior to the petitioner as an Inspector of Excise. Had the matter stopped at that, it would not have been possible to take the view that the changing of the seniority per se in the initial rank violates Article 16 of the Constitution. War Service Recruits will be a class by themselves. There will be reasonable nexus between the classification and the object to be achieved, and on that ground alone the retrospective operation of the rule could not possibly be struck down as violative of Article 14 or 16 of the Constitution. But the difficulty crops up when on the basis of the seniority, as it then existed, in the next higher rank the petitioner was promoted and confirmed earlier than respondent no.3. The general rule is that if one substantively enters the next higher rank by promotion earlier than the one who comes later, the former would rank senior to the latter in that rank. If by the Rules it is proposed, as it seems to be the intention in the background of the history of this case, that not only the seniority of the petitioner and respondent no. 3 in their rank of Inspector of Excise is to be disturbed, but on that footing by some notional and deeming facts it is also to be held that respondent no. 3 albeit substantively appointed to the post of Superintendent of Excise later than the petitioner, will rank senior to him in that post, I am afraid such an interpretation of Rule 3 of the 1971 Rules will violate Article 16 of the Constitution. By a retrospective operation of the law, to change the seniority in the next higher rank on the supposed and notional basis that respondent no. 3 would have been appointed earlier to the post of Superintendent of Excise, if the Rules would have been framed earlier, in my opinion, is violating Article 16 of the Constitution. By a retrospective operation of the law, to change the seniority in the next higher rank on the supposed and notional basis that respondent no. 3 would have been appointed earlier to the post of Superintendent of Excise, if the Rules would have been framed earlier, in my opinion, is violating Article 16 of the Constitution. By conferring this notional and fictional benefit of seniority in the next higher rank so as to affect the civil right of the petitioner in the matter of promotion to further higher ranks is denial of equal opportunities in the matter of employment. It is a well-established canon of interpretation of a legislative enactment or a rule that if by a particular interpretation the enactment of the rule can be held to be constitutionally valid, then that interpretation should be adopted in preference to the one which would make it constitutionally invalid. On a due consideration of the matter, I have come to the conclusion that if by interpretation Rule 3 is not restricted to confer seniority benefits to War Service Recruits in the first and the initial rank but is allowed to extend to affect the next promoted rank, it would be violative of Article 16 of the Constitution. In the background of the history of this case, therefore, it seems that the prayer of the petitioner is justified and a writ of mandamus should issue to the respondents to restrain them from affecting the seniority of the petitioner vis-a-vis respondent no. 3 in their rank as Superintendent of Excise. 7. I will now proceed to refer to some of the decisions of the Supreme Court which, though not directly in point, can very well be relied upon to lend support to the view expressed by me above. In (1) Mervyn Continho V. Collector of Customs (A.I.R. 1967 Supreme Court 52), the methods used by the Government to determine the seniority of Appraisers were not interfered with the seniority of Principal Appraisers who were appointed by promotion from the rank of Appraisers on the basis of rotational system which governed the seniority of the Appraisers. In (1) Mervyn Continho V. Collector of Customs (A.I.R. 1967 Supreme Court 52), the methods used by the Government to determine the seniority of Appraisers were not interfered with the seniority of Principal Appraisers who were appointed by promotion from the rank of Appraisers on the basis of rotational system which governed the seniority of the Appraisers. In this connection, it was said at page 57, column 1 thus: "The present method by which the respondent puts a direct recruit from the grade of Appraiser, though he is promoted later, above a promotee who is promoted to the grade of Principal Appraiser on an earlier date clearly denies equality of opportunity where the grade of Principal Appraiser has only one source of recruitment namely, from the grade of Appraisers. In such a case the seniority in the grade of Principal Appraisers must be determined according to the date of continuous appointment in that grade irrespective of whether the person promoted to that grade from Appraisers' grade is a direct recruit or a promotee." I am conscious of the fact that in (1) Mervyn Continho's case the question of affecting the seniority not only in the first rank but also in the next higher rank with reference to the retrospective action of a rule under Article 309 of the Constitution did not fall for consideration. But on a parity of reason I venture to think that if the Governmental action affecting the seniority of the Principal Appraiser on the rotational basis was tantamount to a denial of equality of opportunity in relation to the employment, any retrospective rule bringing about the same result can also be struck down as being violative of Article 16 of the Constitution. It is well-settled that the law framed or the governmental ORDER :is liable to be struck down if either violates Article 16. In (2) S. K. Ghosh V. Union of India (A.I.R. 1968 Supreme Court 1385) also, the question for consideration was not with reference to ;my rule framed under Article 309, but it was with reference to Government instructions and ORDER :s. The ORDER :of the Government dated the 5th June, 1965 was made, revising the seniority of the officers of the Postal Department in the junior time scale, and upon that basis the ORDER :dated the 17th January. 1966 was made revising the seniority in the grade of Directors of Postal Services. 1966 was made revising the seniority in the grade of Directors of Postal Services. The Supreme Court held that the second ORDER :was not valid. The reason given in paragraph 8 of the JUDGMENT : at page 1389 is : "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 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 give n 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." On reference to rule 3 of the Rules framed by the Governor in 1944 in exercise of the powers conferred by Clause (b) of. Sub-section (1) of Section 241 of the Government of India Act, 1935 for the regulation of recruitment of Superintendents and Deputy Commissioners of Excise, it wou1d be noticed that the appointment to the post of Superintendent is not on the basis of giving weight age of seniority over merit, but it is by way of selection of fit officer, and as is the rule of promotion in many departments of the Government, fitness and qualification being equal, seniority may have its due weight. Under Rule 13 of the said Rules, Superintendents are not confirmed in their respective appointments till they have passed the Departmental Examination completely. Of course, if some mistake is discovered in the matter of given promotion, either due to the ignorance of any existing rule or otherwise which may justify the reopening and revision of the ORDER :s of promotion of different officers and thereby disturbing their dates of promotion and consequently the seniority in the promoted posts, the matter will be different; that will stand on a different footing. But to me it appears that it would be dangerous to permit the law or the rule making authorities to disturb the seniority in the next higher rank by a retrospective operation of the law or the rule, as, in my opinion, it will be clearly permitting them to violate Article 16 of the Constitution, if and when they so choose to do. 8. In (3) B. S. Vadera V. Union of India (A. I. R 1969 Supreme Court 118), it was held that a rule framed by the President or by such person as he may direct under the proviso to Article 309 of the Constitution can be made to have retrospective operation. There is no difficulty in going to that extent now. This question was left open by the Supreme Court in (4) State V. Padmanabhacharya (A. I. R 1966 Supreme Court 602). But in Vadera's case the Supreme Court ruled that the view taken by the Mysore High Court in (5) Govindappa V. Inspector General of Registration (A. I. R. 1965 Mysore 25) is not correct, and the one taken by a Full Bench of the Allahabad High Court in (6) Ram Autar Pandey V. State of Uttar Pradesh (A. I. R 1962 Allahabad 328), more or less, is the correct view. There is therefore, no difficulty in holding that the rule framed by the Governor under the proviso to Article 309 of the Constitution could be made to come into force retrospectively. But the general bar in exercise of that power is still there. As pointed out in paragraph 24 of the JUDGMENT : of the Supreme Court in (3) Vadera's case, the rules are liable to be impeached on grounds, such as breach of Part III or any other constitutional provision. It would be noticed from the facts stated in paragraphs 15 and 16 of the report that the petitioners were not confirmed in the next higher ranks of Upper Division Clerks, or in the grade of Assistants; their substantive rank was that of Lower Division Clerk. There appointments to the next higher grades, although it had continued for about a decade, were all on temporary and ad hoc basis. There appointments to the next higher grades, although it had continued for about a decade, were all on temporary and ad hoc basis. I am inclined to think that a pointed reference to these facts in the JUDGMENT : of the Supreme Court was necessitated to find out whether the retrospective operation of the rule under challenge there was affecting the seniority of the petitioners in their next higher ranks. And if it would have been found that the petitioners had been confirmed in their next higher rank and the retrospective operation was effecting their seniority in that rank, I venture to think that on a parity of the reasons given by the Supreme Court in the earlier cases referred to above, perhaps it would have been held that the retrospective operation to affect the seniority in the next confirmed rank was violative of Article 16 of the Constitution. 9. There is a latest reported decision of the Supreme Court in (7) Ex- Major N. C. Singhal V. Director General, Armed Forces Medical Services (A. I. R. 1972 Supreme Court 628). Paragraph 7 of the report at page 630 runs as follows : "We think that the appellant's conditions of service were governed by Para 13 of Army Instruction No. I/S of 1954 and his previous full pay commissioned service should be taken in the matter of 'ante date' for the purpose of his pay. The condition of service in this regard was not liable to be altered or modified to the prejudice of the appellant by a subsequent administration (Army?) instruction which was given retrospective effect from 26th October, 1962". In the placitum there is a reference to Article 309, although from the JUDGMENT : it is not clear whether the impugned Army Instruction No. 176 of 1965 was a rule made by the President or by such person as he may have directed under the proviso to Article 309 of the Constitution. If the slid Army Instruction was a rule under the proviso to Article 309 of the Constitution, the ratio of the decision Can be said to directly support the view expressed by me above. If, however, the slid Instruction was merely an executive instruction, the ratio mw not be helpful directly in deciding the point but can be used as a guide-line for the proposition of law enunciated above. 9. If, however, the slid Instruction was merely an executive instruction, the ratio mw not be helpful directly in deciding the point but can be used as a guide-line for the proposition of law enunciated above. 9. For the reasons stated above, I hold that the petitioner is entitled to the relief Sought for by him in this writ application. The writ application is accordingly allowed. A writ of mandamus would issue commanding respondents 1 and 2 not to enforce the War Service Recruits Rules, 1969 as replaced by 1971 Rules, so as to affect the seniority of the petitioner vis-a-vis respondent no. 3 in their rank as Superintendent of Excise. In the circumstances of the case I shall make no ORDER :as to costs. AKBAR HUSAIN, J. I agree. Application allowed.