- (1.) This appeal is by Special Leave against the summary rejection of the Letters Patent Appeal challenging the Judgment of a Single Judge of the Punjab and Haryana High Court. 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) on 25-7-58 while the Appellant was promoted on 23-8-58, Hem Raj and Santokh Singh on 6-10-58. After these promotions were given the Government of India accepted the appeal of Respondent 4 on 11-7-59 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 on 15-1-60 against the first and second batch of promotions made overlooking his seniority. It is alleged that on the 18th August 1960 the State Government had examined the service records of the 10 officials who were given promotion, gave them a personal hearing and rejected the representation of Respondent 4. On 9th November 1960, Prakash Chand who was at serial No. 17 and below the seniority of Respondent 4 as accepted by the Government of India was promoted as Superintendent. It is also alleged, though we find no order of the Government stating that Respondent 4 was not considered fit for promotion and that he may wait for one more year namely upto 18-8-1960 after which his fitness or otherwise would be determined. The appellant contends that this was a case of supersession under R. 6 (3) of 1963 Rules, R. 8 of which provides that inter se seniority will only be determined by the dates of substantive appointment in the same post i.e. for the purposes of the same post and not for different posts. 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 office. After this promotion the State Government rejected the appeal earlier filed by the Respondent 4 against his supersession. Thereafter the Government on 22-1-63 confirmed Prakash Chand as Deputy Superintendent with effect from 24-12-60. Jaswant Singh, Gurcharan Dass Vaid the Appellant and Hem Raj were confirmed on March 1, 1962 and Santokh Singh with effect from July 17, 1952. By another notification dated 19-1-65 the remaining six officiating Deputy Superintendents including Respondent 4 were confirmed in their appointment with effect from January 13, 1963, in the existing vacancies. The Inspector General of Police in the return filed by him explained that the approval of the Public Service Commission in respect of the four officials Prakash Chand, Jaswant Singh, Gurcharan Dass Vaid and Santokh Singh was taken on a mistaken view that seniority which was determined under the Punjab Police Clerical Service (State Service Class III), Rules 1960 (hereinafter called 'the 1960 Rules') which had not come into force in February-March 1960 but were enforced with effect from December 2, 1960 would govern their cases. On this mistaken view it was said that name of Respondent 4 was not sent to the Commission as he was considered to be a Junior Officer. On April 18, 1965, however, the Central Government issued an order under Section 117 of the States Reorganisation Act 1956 directing the Government of Punjab to determine the seniority, pay and other matters concerning the Officers included in the final gradation list in accordance with the principles set out below: "(1) Promotions made before 27th February, 1961, on the basis of the provisional gradation lists shall not be disturbed. Provided that the claims of officers for future promotion on the basis of seniority determined in accordance with the principles set out hereafter shall not be prejudiced. (2) Promotions made after 27th February, 1961 on the basis of the provisional gradation lists shall be reviewed to the extent necessary to give effect to the claim of officers who are senior in the final gradation lists to the officers who have been promoted. (3) The seniority of an officer who would have been available on 1st November 1956, should be counted from the date on which an officer junior to him had started continuous officiation in the higher post because of his promotion under the provisional gradation lists. (4) The pay of an officer whose promotion and seniority is determined in accordance with Clauses (2) and (3) shall be fixed at a stage which he would have attained in the time-scale of the higher post if he had been promoted to that post on the date set out in Clause (3): Provided that he shall not be entitled to arrears of pay for the period to the date of his actual promotion. Action as aforesaid may be taken without prejudice to the principles of promotion on merit whatever applicable."
(2.) 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 services. It appears that one Ram Narain Bahl one of the six persons who were confirmed by the order dated 19-1-65, along with Respondent 4, made a representation against that order and the Inspector General of Police issued a notification on 27-7-66 fixing the seniority of the six Deputy Superintendents to whom the notification of 19-1-65 related, as a result of which Respondent 4 became senior to the other five. Vishwanath Sharma one of the six affected by that order who was appointed on 7-12-59 prior to Respondent 4 filed a Writ Petition challenging the notification dated 19-1-65 as well as the one dated 27-7-66. In view of the fact that when the Writ Petition came up for hearing before the Single Judge of the High Court the Inspector General made a statement that the question of the seniority of various officers concerned would be decided afresh and it was prayed that the case may be dismissed. In that case Respondent 4 was Respondent 11 and he also raised no objection to the Writ Petition being dismissed, as long as it did not affect him. By the time the matter was adjourned and came up for hearing on 27-1-67 a fresh notification had been issued on 17-1-67 according to which different dates of confirmation in the rank of Deputy Superintendents were given to the respective persons. In view of this, that Writ Petition was dismissed on the ground that the impugned orders had been superseded by the Government itself and that Vishwanath Sharma would be at liberty to file another Writ Petition challenging the order dated 17-1-67 if he was so advised. It may here be mentioned that Respondent 4 was promoted as officiating Superintendent on July 26, 1966 and he was given March 1, 1962 as the deemed date of confirmation as Deputy Superintendent in accordance with the directive of the Central Government dated 18th April 1965 by an order dated December 7/9, 1966. The appellant filed an appeal against that order on December 22, 1966. It is unnecessary to set out the various views which the several Departments expressed in this regard while processing the appeal including that of the Chief Secretary, Legal Remembrancer and the Advocate General, as that will not in any way determine the question raised in this appeal. What really matters is that the appeal was rejected on 26-11-68 after the Writ Petition was filed by the Appellant. Sometime before the appeal of this Appellant was rejected the Inspector General on 19th October, 1968 issued the following notification published in the Gazette dated 1st November, 1968 :- "Promotion: Consequent upon the implementation of the directive issued by the Government of India, Ministry of Home Affairs, vide their order No. 14/4/60-SR (S), dated the 18th April, 1965, read with No. 17/10/67-SR (S) dated the 24-2-1968 the President of India is pleased to give deemed date of promotion as officiating Superintendent (Office) to Shri Kishan Chand (Respondent 4) from April 6, 1961. He will get the benefit of increments from 6th April, 1961, but will not be entitled to arrears of pay for the period from April 6, 1961, to July 25, 1966". Thereafter, by notification dated February 26, 1969, respondent 4 was confirmed as Superintendent with effect from January 29, 1963, the date from which his immediate junior, Jaswant Singh had been confirmed. By this order Jaswant Singh (one of the 11 persons who were earlier confirmed) was deconfirmed with effect from September 2, 1965, on which date a permanent vacancy occurred due to the retirement of Shri Gurbux Singh Brar.
(3.) The appellant did not however challenge these two aforesaid notifications as they had been published after the filing of the Writ Petition. The learned Judge who heard the Writ Petition of the appellant however decided with the concurrence of the Counsel on both sides, to adjudicate on the validity of both these notifications also in order to see whether any relief can be granted to the appellant.;