Sabyasachi Mukharji, J. - (1.) This is an application by one Chitta Ranjan Basu who is an employee at present of the Government of India in the customs department. The petitioner challenges certain orders or communications dated 1st of February, 1963, 6th May, 1963 and 22nd March, 1967, being annexures N, P, and Q respectively. The petitioner further claims that the petitioner's period of service as a Preventive Officer under the Burma Customs from 16th July, 1941 to 21st December, 1948 as well as the period from 21st December, 1948 to May, 1949 be taken into consideration in determining the seniority of the petitioner as a Preventive Officer. Grade I under the Government of India. It is not in dispute that the period from 21st December, 1948 to May, 1949 has been taken into consideration in determining the seniority of the petitioner. In order to determine the controversy in this case it would be necessary shortly to set out the facts. The petitioner in 1937 joined as a permanent employee in the office of the Accountant-General of Burma. Thereafter with effect from 15th July, 1941, the petitioner was transferred to the Customs Department, Burma, as a Preventive Officer in the time scale of Rs. 100-5-250 which was subsequently revised to the time scale of Rs. 110-10-300. According to the petitioner due to emergency created by the second world war a large number of employees of the customs department of Burma were transferred temporarily to other Government departments for the proper execution of the work and to meet the war emergencies. The petitioner's service was also requisitioned and the petitioner had joined the Civil Affairs Services. Burma, which was an arm of the Army on the 21st January, 1944 on a monthly salary of Rs. 300/-. Thereafter according to the petitioner on the 1st of January 1953, (Sic) the petitioner was promoted to Civilian Gazetted Officer, Class II, on a monthly salary of Rs. 240/- plus Rs. 60/- as personal allowance. Subsequently the petitioner was transferred to Welfare and Rehabilitation Department. Government of Burma as a junior Welfare Officer on a monthly salary of Rs. 400/-. On the cessation of the hostilities the petitioner was recalled to the customs department and was placed in the post of Preventive Officer. The petitioner claims and contends that the period of service from the 21st January, 1944 to 30th June, 1946, rendered by the petitioner in the aforesaid services in the Civil Affairs Services as well as the Rehabilitation Department was counted as service as a Preventive Officer, Government of Burma. The petitioner, however, states that the Government of Burma did not pay any increment to their employees during the evacuation of Burma but after re-occupation of Burma when the question of payment of past increments was being considered, the petitioner was released from service and as such at the time of release the petitioner was drawing the basic salary of Rs. 110/- although according to the petitioner in the normal course with all the increments the petitioner would have drawn at the rate of Rs. 180/- per month. Due to constitutional changes the petitioner was asked to accept Burmese Citizenship inasmuch as the Burmese Government had decided that non-citizens of Burma would not be employed in the Government of Burma. The petitioner was not inclined to accept Burmese Citizenship. Thereafter by an office order No. 116 of 1948 dated 19th October, 1948, passed by the Collector of Customs, Rangoon, the petitioner's service as Preventive Officer was terminated with effect from the 15th of December, 1948. On the 11th of December, 1948, an order was passed whereby the petitioner was granted pension facility and the terms of the said order have been set out in the petition. It is not necessary for me to refer to it in detail. On release from the service the petitioner was granted pension and the petitioner claims that in calculating the pension the period of service rendered by the petitioner as Preventive Officer from 15th July 1941 to 15th December, 1948, had been taken into consideration. After the constitutional changes in India, Burma and Pakistan the Ministry of Finance, Government of India issued a Notification No. F5 (138) Est. 111/48 whereby it was stated that the Government of India had under consideration re-employment of persons who were employed under the Government of Burma. The said Notification is in the following terms:- "The Government of India have had under consideration the question of the terms to be granted to Indian Nationals released from service under the Government of Burma who may be employed under the Government of India. It has been decided that such persons on employment under the Government of India should be given the following terms:- (i) Where employment is secured while on leave preparatory to retirement, they may take all leave which may be granted to them on their release from the service of the Government of Burma and draw their leave salary due from the Government in addition to the duty pay under the Government of India. (ii) They may draw the pension (or gratuity) if any, which may be granted to them by the Government of Burma in addition to duty pay under the Government; (iii) They will be employed initially on a temporary basis under the Government of India; (iv) They will draw pay in the scale prescribed under the Central Civil Service (Revision of Pay) Rules. 1947 for the post concerned. In the case of a permanent Burma Government servant, how ever, higher initial pay in the scale will be granted at the stage which together with his pension, does not exceed his substantive pay while last on duty under the Government of Burma or if he was officiating in a higher Post and is appointed to a post in India comparable to such higher post, he will be entitled to draw initial pay at the stage in the prescribed scale equal to the difference between his officiating pay last drawn while on duty under the Government of Burma and his pension or if there is no such stage, the stage next below it provided that he had been officiating continuously for a period of three years or more. 2. The above terms are admissible only for temporary employees under the Government of India. If and when such persons are to be absorbed permanently, the terms for permanent absorption will be at that time separately decided. 3. The procedure to be followed in employing such persons will be that laid down in para 9 of the Ministry of Home Affairs Office Memorandum No. 30/61/48-appts. dated the 25th May, 1949." On the 31st December, 1948, a Notification was issued being No. F5 (138) Est. III/48 whereby certain terms of appointment were settled for appointment under the Government of India of Indian Nationals released from service under the Government of Burma, Pursuant to the aforesaid notification the petitioner was appointed as a Preventive officer on the, 2nd of April, 1949 on a temporary basis. The Ministry of Finance. Government of India, thereafter settled and issued a Circular on the 1st of March, 1950, which provides as follows:- "A question has arisen whether the terms of appointment as set out in the Finance Ministry's office Memorandum referred to above should apply only to persons appointed in accordance with para (9) of the Home Ministry office Memorandum No. 30/61/48-Appts. dated the 25th May, 1948. It has been decided in consultation with the Ministries of Home Affairs and Finance that the terms of appointment contained in the Finance Office Memorandum under reference are applicable to all Ex-Burma Government employees who on release from that Government, on account of transfer of power, have been appointed to various posts under the Government of India, whether through the Transfer Bureau or otherwise (i. e. Employment Exchange etc.)." On the 22nd of June, 1949, the Ministry of Home Affairs, Government of India, issued a notification which inter alia provides as follows: "Due to absorption of a large number of displaced Government servants and temporary employees in the various grades of service, the Government have re-framed the rules regarding the seniority in respect of persons employed in any particular grade and seniority should as a general rule be determined on the basis of 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. As it is difficult to work on the basis of 'comparable posts or grades', it has been decided that service in equivalent grade should generally be defined as 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 quasi-permanent basis before 1st January 1944 should however, not be disturbed."
(2.) On the 3rd of February, 1950, the Ministry of Home Affairs issued another office Memorandum which inter alia provides as follows:- "Some of the Indian employees of the Government of Burma whose services were terminated due to constitutional changes in that country have been reemployed under the Government of India. The Government have decided that principles laid down in paragraph 2 of the Home Ministry's office Memorandum no. 30/44/48-Appts. dated 22nd June, 1949, should be extended to all former employees of the Government of Burma also on their appointment under Government of India; the service rendered by them in Burma be taken into account as if it were service under a Provincial Government of India."
(3.) On the 1st of September, 1956, the petitioner was confirmed as Preventive Officer. Thereafter the petitioner wrote to the Assistant Collector of Customs for fixation of his seniority. On the 13th August, 1957, the Assistant Collector of Customs asked the petitioner to submit a statement of his services and pay drawn in Burma. On the 11th January 1960, the petitioner made a representation to the Assistant Collector of Customs for seniority. In November, 1960, the Assistant Collector of Customs informed the petitioner that the matter was under consideration of the Board in consultation with the Indian Embassy in Rangoon. On the 11th May, 1961, by a letter the Ministry of Finance, Government of India requested the Indian Embassy, Rangoon to supply information regarding (a) service particulars of the petitioner under the Government of Burma (b) retirement if due to constitutional changes (c) pension sanctioned on the basis of pay increment, if allowed. The reply from the Indian Embassy according to the petitioner was never forwarded to the petitioner. The petitioner was informed that according to the Burmese Government the service book was with the petitioner and the Burmese Government did not maintain any particulars. On the 27th July, 1962, the Assistant Collector of Customs wrote to the petitioner that the petitioner's service book was not in Burma office as stated by the Government of Burma and it was stated further by the Government of Burma that the service book had been handed over to the petitioner. The petitioner was asked to support by documentary proof of posts held by him from 15th July, 1941; otherwise the petitioner's previous service under the Burmese Government could not be counted. On the 7th August, 1962. the petitioner requested the Assistant Collector of Customs that until decision by Government seniority list circulated should not be given effect to so far his seniority was concerned. On the 14th August, 1962, the Assistant Collector of Customs replied that his seniority in the list would be revised, if seniority was given to someone else pending his case. On the 23rd August, 1962, the petitioner made a representation for seniority to the Secretary, Central Board of Revenue. The petitioner stated that the petitioner did not have the service book with him. The petitioner forwarded certain other testimonials in support of his contention. The petitioner on the 15th October, 1962, requested the Collector of Customs not to confirm promotion till the decision of his case. On the 1st of December, 1962, the Assistant Collector of Customs wrote to the petitioner that in his application for appointment in the Calcutta, Customs dated the 22nd of December, 1947, the petitioner had written that he was an officiating Preventive Officer and that the petitioner joined the Civil Affairs Department on the 21st of December, 1944 and Welfare and Rehabilitation Department thereafter and was recalled to the Customs Department on the 1st July, 1946. Therefore, it was stated that the petitioner could not say that-he was a Preventive Officer of Customs from 16th July, 1941 to 21st December, 1948 and the petitioner was asked to give his comments. On the 18th December, 1962. the petitioner replied to the said letter of 1st December, 1962 stating that it was clearly stated in his application dated 22nd December, 1947 that he joined the Accountant-General of Burma on the 3rd of April, 1937 and later on he was transferred to the Customs Department, Burma, as a Preventive Officer on the 16th July, 1941 and during the War his services were requisitioned and he was recalled to the Customs Department as Preventive Officer on the 1st July. 1946 and the Army services during the war were counted towards his Customs employment in determining his pension. The Assistant Collector of Customs on the 1st February, 1963, informed the petitioner of the Board's decision that the petitioner's services in the Civil Affairs and in the Welfare and Rehabilitation Department in Burma could not be considered for his seniority and as he was drawing less than the scale of Preventive Officer, he was not entitled in terms of Memorandum No. 30/44/48 dated 22nd June, 1949, to get benefit of the services in Burma. The petitioner made a further representation for seniority to the Board of Revenue.on the 20th February, 1963. On the 6th May, 1963, the petitioner was informed that the Board was not in a position to reconsider the decision of 1st February, 1963. Thereafter on the 22nd March, 1967, the petitioner again applied to the Board for review. On the 17th April, 1967, the Board passed an order stating that the order could not be reviewed. On the 25th April, 1967, the petitioner wrote a letter demanding justice. On the 22nd May, 1967, the petitioner moved this Court and obtained a Rule Nisi.;