- (1.) Whether the criterion to determine the seniority of Ravi Varma and Ganapathi Kini respondents should be length of service in accordance with the Office Memorandum date June 22, 1949 issued by the Ministry of Home Affairs, as claimed by the said respondents, or whether it should be the date of confirmation, as claimed by the appellants, is the main question which arises for decision in civil appeals Nos. 1845 and 1846 of 1968 which have been filed by the Union of India and two others by special leave against the judgment of Mysore High Court. Similar question arises in respect of the seniority of Suresh Kumar and Tara Chand Jain respondents in Civil appeal No. 50 of 1969 which has been filed by the Union of India and two others on a certificate granted by the Punjab and Haryana High Court against the judgment of that Court reversing in Letters Patent appeal the decision of the single judge and issuing a writ in favour of those respondents. The High Court held in all the cases that the seniority of the concerned respondents should be determined on the basis of the length of service in accordance with the above mentioned Officer Memorandum.
(2.) Before giving the facts of the three cases it would be pertinent to refer to two Officer memoranda issued by the memoranda is dated June 22, 1949. It was mentioned in this memorandum that the Government of India had under consideration the question of the fixation of seniority of displaced government servants and temporary employees in the various grades. Employees of the Central Government who were displaced from their Officers in Pakistan, according to the memorandum, had been absorbed in offices under the control of the same administrative ministry or nomination by the transfer bureau of the Ministry of Home Affairs in others officers. All those persons had been appointed, with a few exceptions on temporary basis. The Ministry of Home Affairs accordingly conveyed the following decision : "It has now been decided in consultation with the Federal Public Service Commissioner that the question of seniority in each grade should also be examined in the same context and specific rules suitable for each service prescribed in framing those instructions. The question of seniority of Assistants in the Secretarity of Assistants in the Secretarial was recently examined very carefully in consultation with all the Ministries and Federal Public Service Commission and the decisions reached are incorporated in Para 8 of the 'Instructions for the initial constitution of the grade of Assistants' and extract of which is attached. It has been decided that this rule should generally be taken as the model in framing the rules of seniority for other services and in respect of persons employed in any particular grade seniority should, as a general rule, be determined on the basis of the length of service in that Grade irrespective of whether the latter was under the Central or Provincial Govt. in India or Pakistan. It has been found difficult to work on the basis of the 'comparable' post or grades and it has therefore been decided that 'Service in an equivalent Grade' should, generally be defined service on a rate of pay higher than the minimum of the time scale of the grade concerned. The seniority of persons appointed on permanent or quesi-permanent basis before the 1st January 1944, should however not be disturbed."
(3.) Direction was accordingly issued by the Ministry of Home Affairs that the principles given in the Memorandum be borne in mind in determining the seniority of 'Government servants of various categories employed under the Ministry of Finance, etc.' On December 22, 1959 another Office Memorandum was issued by the Ministry of Home Affairs on the subject of the general principles for determining seniority of various categories of persons employed in Central Services. Material part of this memorandum was as under : "The instructions contained in the Ministry's Office Memorandum No. 30/44/48-Apptts. Dated the 22nd June, 1949, were issued in order to safeguard the interests of displaced Government servants appointed to the Central services after partition. As it was not possible to regulate the seniority of only displaced Government servants by giving them credit for previous service, the instructions were made applicable to all categories of persons appointed to Central Services. The principles contained in the 22nd June, 1949, Orders were extended to - (i) ex-Government servants of Burma appointed to Central Services, and (ii) the employees of former part 'B' States taken over to the Centre as a result of Federal Financial Integration. The instructions contained in this Ministry's Office Memorandum No. 32/10/49-CS dated the 31st March, 1950 and No. 32/49-CS(C), dated the 20th September, 1952 similarly regulate the seniority of candidates with war service appointed to the Central Services. 2. The question has been raised whether it is necessary to continue to apply the instructions contained in the Office Memoranda cited above. Displaced Government servants have by and large been absorbed in the various Central services and their seniority has been fixed with reference to the previous service rendered by them. Similarly, the seniority of ex-employees of the Government of Burma and of Part 'B' States as well as of candidates with war service has already been determined in accordance with the instructions cited above. As the specific objects underlying the instructions cited above have been achieved, there is no longer any reason to apply those instructions in preference to the normal principles for determination of seniority. It has, therefore, been decided in consultation with the Union Public Service Commission, that hereafter the seniority of all persons appointed to the various Central Services after the date of these instructions should be determined in accordance with the general principles annexed hereto. 3. The instructions contained in the various office memoranda cited in paragraph 1 above are hereby cancelled, except 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 will not apply with retrospective effect from the date of issue of these orders, unless a different date in respect of any particulars service/grade from which these revised principles are to be adopted for purposes of determining seniority has already been or is hereafter agreed to by this Ministry." Relevant parts of paragraphs 2, 3 and 4 of the Annexure to this Memorandum were as under : "2. Subject to the provisions of para 3 below persons appointed in a substantive or officiating capacity to a grade prior to the issue of these general principles shall retain the relative seniority already assigned to them or such seniority as may hereafter be assigned to them under the existing orders applicable to their cases and shall en-bloc be senior to all others in that grade. 3. Subject to the provisions of para 4 below, permanent officers of each grade shall be ranked senior to persons who are officiating in that grade. 4. Direct Recruits: Notwithstanding the provisions of part 3 above, the relative seniority of all direct recruits shall be determined by the Order of merit in which they are selected for such appointment on the recommendations of the U. P. S. C. or other selecting authority, persons appointed as a result of an earlier selection being senior to those appointed as a result of a subsequent selection....";