D.K. Mahajan, J. - (1.) THE Petitioners are members of the Haryana Civil Secretariat Service. They are working as Assistants. Originally, they were recruited as Clerks on different dates between November 20, 1944 and August 13, 1959, in the State of Punjab, out of which the State of Haryana was carved out. The conditions of service of these employees were originally laid down in the Punjab Civil Secretariat Service Rules, 1943 (hereinafter referred to as the 1943 Rules). These rules were framed under Section 241 of the Government of India Act, 1935. After the coming into force of the Constitution, these rules were repealed. A new set of rules, namely, the Punjab Civil Secretariat (State Service Class III) Rules, 1952 (hereinafter called the 1952 Rules) were promulgated and notified on January 7, 1952. The relevant 1943 rules and the 1952 rules are reproduced side by side: (His Lordship read 1943 Rules and 1952 Rules and then proceeded).
(2.) HOWEVER , vide its letter dated September 5, 1958, the Chief Secretary to Government, Punjab, Chandigarh, issued instructions to the effect that the Clerks will have to pass a test before being promoted to the posts of Assistants. The relevant part of the said instructions is as follows: For the purpose of appointment of officials from the offices of Heads of Departments as Assistants in the Punjab Civil Secretariat as also for promotion of Assistants in the cadre, a test separately prescribed will be held by the Punjab Public Service Commission. For officials belonging to the offices of the Heads of Departments, this test will be competitive one and for the Secretariat Clerks, it will be a qualifying test. As at present, this test will be conducted simultaneously in Accounts as also in Noting and Drafting. The question as to what standard of Accounts test, it would be fair to expect of the examinees, is being considered separately. These instructions were challenged by Shamsher Jang Shukla by a suit and it was held that these instructions were invalid and could not override the rules governing the service. This decision was affirmed by this Court and later on by the Supreme Court and is reported as The State of Haryana v. Shamsher Jang Shukla : A.I.R. 1972 S.C. 1546. To the same effect is the law laid down by their Lordships of the Supreme Court in The State of Punjab v. Madan Singh and Ors. : A.I.R. 1972 S.C. 1429. After the decisions of the Supreme Court, the Clerks who had failed to qualify the test and consequently had not been promoted as Assistants, filed a joint writ petition in this Court claiming benefit of the Supreme Court decisions, mentioned above. It may be mentioned that during the pendency of the appeal to the Supreme Court, a large number of writ petitions were filed in this Court and in the returns filed by the States of Punjab and Haryana, a representation was made that the States were awaiting the decision of the Supreme Court. In the meantime, the composite State of Punjab approached the Central Government for the grant of retrospective approval to the rules regarding qualifying the test by Clerks before being eligible for promotion to the posts of Assistants. Obviously, this approach was made in view of the provisions of Section 115 of the States Reorganisation Act, 1956. But this request of the State Government was declined. In the present petition, which is directed against the State of Haryana, it is alleged that the instructions issued vide Chief Secretary's letter dated September 5, 1958, are contrary to the statutory rules, because they change the conditions of service governing the members of the Service. It is also averred that as these instructions have been issued without obtaining the prior approval of the Central Government, they cannot operate and govern the Petitioners. The Petitioners approached the Government to settle their case under the 1952 rules without regard to the instructions issued by them vide letter dated September 5, 1958. This request was not acceded to by the State Government. Instead, the State Government issued the following directions vide letter dated September 11, 1973: The matter has been under the consideration of the State Government as how best to implement the judgments of the Supreme Court. It has now been decided that the benefit should be given only to those officials who went to the Courts and got decrees in their favour. Accordingly they should be given due seniority as if there was no requirement of passing the test in their cases, in pursuance of the instructions issued by the Government in the year 1958 or the service rules which were framed without getting the prior approval of the Government of India as required under Section 115 of the State Reorganisation Act, 1956. Thus, the stand taken by the State of Haryana is that the benefit of the decision of the Supreme Court should be given only to those officials who went to Court and got decrees in their favour. Besides the fact that the latest instructions issued by the State of Haryana are contrary to the decision of the Supreme Court, it is claimed that they are violative of Article 16 of the Constitution being discriminatory. It is also maintained that the effect of non -implementation of the Supreme Court decision is that persons far junior to the Petitioners had gained undue seniority on the basis of the test declared illegal by the Supreme Court.
(3.) IN the return filed on behalf of the State of Haryana, a number of preliminary objections have been raised, inter alia: (a) that a joint writ petition by a number of persons is not competent, (b) that all the Petitioners who took the test, but failed to qualify, are estopped from challenging the resultant supersession, and (c) that the claim of the Petitioners was grossly belated and if they had filed civil suits, the same would have failed on account of bar of limitation. This petition was placed before my learned brother M.R. Sharma, J., and by his order dated November 28, 1973, the learned Judge referred the case to a larger Bench. The learned Judge, in the order of reference, observed: The controversy as it crystalised itself from the pleadings of the parties relates to the following two matters: (a) Whether the provision of the departmental examination introduced vide letter dated September 5, 1958, by the Chief Secretary to the Government, Punjab, Chandigarh, runs counter to the statutory rules on the subject; and (b) Whether the seniority list of the Petitioners and the Respondents which was published on November 27, 1964, in the official Gazette, could be revised as a consequence of the later decisions.;