B.R. Tuli, J. - (1.) THE Petitioner joined service in the erstwhile State of Nabha on April 16, 1940, as a Clerk. He was promoted to the post of Head Clerk on March 13, 1945 which post be held till September 1, 1948, on which date the services of the eight princely States, which formed themselves into Patiala and East Punjab States Union, were integrated. On integration, the post of Head Clerk was equated with that of a Routine Clerk, with the result that the petitioner was appointed a Routine Clerk in the Pepsu Civil Secretariat. On September 1, 1950, the Pepsu Government decided that 75 per cent of the vacancies in the post of Assistant in the Secretariat should be filled up by direct recruitment through the Public Service Commission and the remaining 25 per cent should be filled up by promotion of deserving Routine Clerks. It was further decided that the senior most Routine Clerk should be promoted provided he was at least a Matriculate, had at least seven years' clerical service to his credit and there were no serious adverse reports regarding him. The petitioner was promoted to officiate as an Assistant on July 27 I950, for a period of two months as a stopgap arrangement and while that officiation was going on, he was promoted to officiate as Assistant till further orders by an office order dated August 28, 1951. Along with him three more Routine Clerks were promoted to officiate as Assistants It has to he remembered at this stag' that the officiating promotion of the petitioner was not against the quota of 25 per cent but on ad hoc basis because the decision to fill 25 per cent posts of Assistants by promotion from amongst the Routine Clerks taken on September 1, 1950.
(2.) THE Pepsu Government invited applications though the Public Service Commission for the posts of Assistants as direct recruits and respondents 3, 4 and 5 were appointed as officiating Assistants, with effect from January 1, 1951, March 1. 1952. and March 4, 1952, respectively. The Pepsu Government thereafter framed the Pepsu Secretariat Service Recruitment, Probation, Punishment and Seniority Rules, 1952 (hereinafter referred to as the Rules) to govern the conditions of service of Routine Clerks Assistants, Superintendents and some other ministerial staff working in the various departments of the Pepsu Secretariat. These rules were framed by His Highness the Rajpramukh of Pepsu in exercise of the powers conferred m him by Article 309 of the Constitution of India, Rule 7 of the Rules provided - Twenty -five per cent of the payment vacancies and temporary or officiating vacancies likely to become permanent of Assistants shall be filled by promotion from amongst the Routine Clerks in the Service in accordance with Rule 15, and seventy five per cent, by direct recruitment. Rule 14 provided - (a) All direct recruits to the Service small be treated on probation for a period of one year from the date on which they take up their duties. The period of probation may, in the discretion of the Home Department, be extended but in no case it shall in the aggregate exceed two years. (b) Officiating service shall be reckoned as period spent on probation but no person, who is officiating in any appointment, shall, on the completion of not more than two years in the Service, be entitled to be confirmed until he is appointed against a permanent vacancy. Service spent on Probation to a corresponding or a higher post may be allowed to count towards the period of probation fixed under these rules. (c) If the work or conduct of any person during his period of probation is, in the opinion of the Chief Secretary, not satisfactory, the Chief Secretary may dispense with his services or revert him to his former position if he had been appointed otherwise than by direct recruitment. It is to be noted that no period of probation was provided for Assistants promoted from the rank of Routine Clerks. Rule 16 provided for the method of fixing seniority and ran as under: 16. Seniority in the different classes aid grades of the Service shall count from the date of confirmation in that class or grade of the Service. The following principles shall be followed in determining the seniority of persons confirmed on the same date: (i) In the case of persons recruited by the public Service Commission according to their respective position on the merit list mentioned in Sub -rule (a) of rule is; (ii) in other cases according to the respective position of the persons concerned in the lower grades from which they hive been promoted. There is no provision made in this rule for fixing inter se seniority of the Assistants appointed as direct recruits and those appointed by pro -motion in case the confirmation takes place on the same date. The absence of this provision has led to the filing of the present petition. By an order dated October 1, 1953, the petitioner was reverted to the post of Routine Clerk but was again promoted as officiating Assistant on October 5, 1953, He was again reverted as Routine Clerk on December 4, 1953, and was subsequently promoted as officiating Assistant on January 2, 1954. Respondents 3 to 5 continued working as officiating Assistants till they were confirmed by an order dated October 10, 1955, along with some other officiating Assistants The petitioner was confirmed as an Assistant along with eight other Assistants by an order dated February 7, 1955. These nine Assistants submitted a representation to the Government in which the following points were stressed: 1. That while the Assistants recruited through Public Service Commission have been confirmed under Home Department order dated October 10. 1955, the order of our confirmation has been issued on February 7, 1956 on the acceptance of our appeal. 2. That the orders of our confirmation have not been given effect to from 10.10.1955, the date on which the direct recruiters were confirmed. 3. That some of us were promoted to officiate in this cadre much before the direct recruitment of these persons and were thus entitled to be confirmed earlier in order to maintain our position in seniority.
(3.) THAT the revised pay scales have been given effect to from January 1, 1956 while the orders of our confirmation as Assistants, as they now stand, will take effect from February 7, 1966, depriving us of the benefit of the revised pay grades is normally given against the substantive post. Not to speak of any benefit in some cases, our pay in the revised grade is likely to be reduced unless our confirmation is given effect to retrospectively.;