J. N. GUPTA & OTHER Vs. UNION OF INDIA & OTHER

JUDGEMENT

(1.) This petition under Art. 226 of the Constitution of India, challenges the order dated 28th Aug., 1973 issued by respondent No 2, Ministry of Industrial Development fixing the seniority of tho petitioners in substantive grade III of Central Secretariat Stenographers Service (to be called the service) with effect from 10-1-72. In exercise of tho powers conferred by the proviso to Art. 309 of the Constitution of India the President framed the Rules regarding Central Secretariat Stenographers Service Rules, 1969 (hereinafter referred as the Rules) which came into force with effect from 1st August. 1969 The service is to consist of four grades consisting of among others grade III with which we are concerned in the present petition Rule (7) provided that the initial constitution of each Cadre; the permanent and temporary officers of each cadre on the appointed day shall be such as may be determined by the Central Government in the Department of Personnel in the Cabinet Secretariat from amongst departmental candidates. Rule 7 (2) (f) provides that posts in Grade III of the Service shall be filled by the appointment of departmental candidates holding posts of steno-typist provided they have passed a stenography by test held by the Secretariat Training School or they shall within the stipulated period pass such a test. Second proviso further presided that substantive appointment or continuance Grade I I of the Service beyond the period of probation as laid down in the Rule 16, of persons appointed as steno-typists on the basis of stenography tests held by the Ministries or Departments other than the Secretariat Training School and appointed to Grade III under this rule, shall be subject to their passing stenography test held by the Secretariat Training School, prior to promulgation of the Service under the aforesaid Rules, the petitioners were though holding the posts of Lower Division Clerks/Upper Division Clerks under the Central Secretariat Clerical Service but performing the duties of steno-typists in the Ministry of Industrial Development. It is common case that the petitioners were departmental candidates for purpose of initial Constitution of service within the meaning of Rule 7. The period of probation provided in Rule 16 is for a period of two years though the said period of probation can be extended or curtailed if the appointing authority deems fit. Rule 19 (1) provides that the relative seniority of members of the Service appointed to any Grade before the appointed day shall be regulated by their relative seniority as determined before that day. Sub-rule (3) and (4) of Rule 19 further provide that the seniority inter se of permanent/temporary officers included in the initial constitution of a Grade shall be regulated in the order in which they are so appointed. Along with the rules as explanatory memorandum was issued which provided that persons who have been appointed by the Ministries/Offices as Steno-typist on the basis of tests held by them should pass a test in English/Hindi Stenography conducted by the Secretariat Training School at 80 words per minute within a period of 2 years from the dato of commencement of the new scheme for which they will be given upto four chances. If they fail to qualify in such a test, they will not be eligible for confirmation or continuance on Grade III of the Service. In pursuance of this decision four stenography tests were held by the Government, the first of them being in Sept., 1970 and the 2nd of them in Dec., 1970, the third and fourth being on 7th April, 1971 and 7th July 1971 respectively. But the petitioners who were working in the Ministry of Industrial Development as Stenographers Grade III of the relevant time could not appear in the first two tests because their particulars were not sent to the Secretariat Training School in time by the Ministry of Industrial Development, and their names were not included in the first two tests. The petitioners did not qualify in the third test; as regards the fourth test the petitioner No. 1 did not appear, the other petitioners appeared but failed. It appears that apart from the petitioners who were not able to avail chances there were number of other persons who had not been able to qualify, these four tests. Consequently the Department of Personnel by its letter dated 24th Sept., 1971 decided to hold two more qualifying tests in stenography, (one in Jan., 1972 and other in July, 1972; and accordingly the probation period of unqualified persons were extended by one year with effect from 1st Aug., 1971. It was made clear that those who failed to qualify by 1-8-72 would stand reverted from Grade III of the Service to which they were provisionally inducted at the initial constitution of service. The petitioners appeared in the test held in Jan., 1972 and qualified the same.

(2.) Later on the question arose as to the respective seniority to be allotted to persons who had qualified by Aug., 1971 and those who had Qualified in January. 1972 or July, 1972. The Department of Personnel, Govt of India by its memo, dated 16th Aug., 1972 took the view that those persons who had satisfactorily completed two years period of probation and become eligible for confirmation against the authorised permanent strength of the grade from 1st Aug., 1971 would on such confirmation become senior to those who failed to qualify the stenography tests by that date and in whose cases, the period of probation had been extended This decision of the Department of Personnel has apparently effected the petitioner seniority and they represented to the Ministry of Industrial Development and pointed out that the department had not forwarded the names of the petitioners in time with the result that they had not been able to avail their first four chances. The Ministry of Industrial Development seems to have accepted their view point because it addressed letter pointing out that due to certain unforeseen circumstances the Stenographers Grade II. working in the cadre of the Ministry could not appear in the first two tests because their particulars could not be sent in the Secretariat Training School well in tune by the Ministry of Industrial Development and as such their names were not included in the first two tests. It was pointed out that even earlier this fact was brought to the notice of Department of Personnel by the Secretary's letter dated 3th May 1971 and 13th July, 1971 and it was for this reason that two more chances to qualifying were given to the Stenographers Grade III working. In the Ministry of Industrial Development, i.e. in Jan., 1972 and July 1972. The Ministry of Industrial Development therefore recommended that those candidates (Grade III Stenographers) i.e. like the petitioner, who had passed the test actually within three chances (held in Jan., 1972) and that it would be unfair to treat them junior to those who had qualified in the shorthand tests in the first four chances, and recommended that seniority should not be disturbed in accordance with the Department of Personnel's letter dated 16th Aug., 1972 particularly when they were not at fault.

(3.) It appears however, that this recommendation was not accepted and ultimately Ministry of Industrial Development by its memo, dated 28th Aug. 1973 appointed large number of persons substantively in Grade III in the service. The petitioners have been shown as having been appointed substantively with effect from 10th Jan., 1972, while many others have been shown appointed w.e.f 1.8.71. The petitioners being aggrieved having been shown as junior in this list have come up by means of this writ petition to this court. Mr. Gupta learned counsel for the petitioner made a grievance that seniority has not been fixed in accordance with Rule 19 read with Explanatory memorandum which lays down of Grade III stenographers appointed at the initial constitution will be fixed in such a manner that in the case of Lower Division Clerk/Upper Division Clerk/ Steno typist their inter se seniority will be fixed with reference to their seniority. In the Central Secretariat Clerical Service. It is common ground that the petitioners and respondents were member of the Central Secretariat Clerical Service. The contention is that irrespective of the dae of substantive appointment as Grade III Stenographers in service their inter se seniority should have been determined with respect to their seniority in tho Central Secretariat Clerical Service.