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Judgment
T.U. Mehta, C.J.—The dispute involved in both these matters is as old as 1963 and the proper resolution of the same has been delayed on account of the various types of intrigues indulged in by the staff of the State Secretariat. The real dispute is with regard to the inter se seniority of the contending parties. The matter provides a classic example of how the attention of public servants is seriously diverted from the solution of the problems facing public administration on account of the fact that they remain mostly engaged in looking after only to their personal interest. The following facts will bear out these observations.
Before the year 1956, the area called Himachal Pradesh was functioning as Part ''C'' State under our Constitution. Some of the contending parties were, before Part ''C'' State was formed, serving in different integrating States of this Area. The status of Part ''C'' State came toan end in the year 1956 when Territorial Council Act, 1956, came into force in the month of November. This Act stipulated a diarchical form of administration inasmuch as a special Territorial Council was formed and some minor subjects of local importance such as education, medical department-both upto particular level-and other minor subjects were transferred to the Territorial Council. The remaining subjects of major importance were administered by an Administrator on behalf of the Central Government.
On the formation of the Territorial Council the Services of the contending parties were transferred to it along with the departments and the posts to which they belonged.
Civil Writ Petition No. 136 of 1975 is preferred by two Petitioners named Shri D.K. Bhatnagar and Shri Ramji Dass Chauhan, while Civil Writ Petition No. 149 of 1978 is preferred by Shri O.P. Gupta. Petitioner Shri Bhatnagar was serving the Territorial Council as junior scale Stenographer while the Petitioner Ramji Dass was serving the Council as senior clerk. Petitioner O.P. Gupta was initially serving the Council as Junior Clerk but was promoted as Senior Clerk on 9-10-1958. The services of these Petitioners were governed by the rules called Himachal Pradesh Territorial Council Secretariat Subordinate Services (Class III and IV) Recruitment, Promotion and Condition of Service Rules and Regulations, 1958. These rules were framed as per powers conferred by Sub-sections (4) and (5) of Section 32 of the above referred Territorial Council Act, 1956. Post of junior scale Stenographer was considered as equivalent to the post of Senior Clerk. As regards the inter se seniority of these Petitioners as Senior Clerks, it is an admitted position that Petitioner Bhatnagar of C.W.P. 136 of 1975 was senior to the Petitioner O.P. Gupta of writ petition No. 149 of 1978. A tentative seniority list of Senior Clerks of the Council is found at Ann. P. 2 in C.W.P. 159 of 1978. According to that list Petitioner O.P. Gupta was shown at serial No. 3 while Petitioner Ramji Dass was shown at serial No. 7. Thus, according to that list Petitioner O.P. Gupta of C.W.P. 149 of 1978 was senior to the Petitioner No. 2 Ramji Dass of C.W.P. No. 136 of 1975 as Senior Clerk.
The recruitment and promotions of these servants of the Council were made on the recommendations of a Committee called Statutory Standing Committee of the Council on 16th July 1962, a meeting of this Standing Committee was held for the purpose of making recommendation for promotion to the post of Assistants. All the three Petitioners and several others were admittedly falling within the field of choice for this promotion. According to Rule 6(j) of the above referred recruitment rules following was the field of choice for the selection of an Assistant:
Assistants.-He is a graduate or above of a recognised University and has at least three years office experience unless appointment is made by promotion of senior clerks or junior scale stenographer in the service of the Council with at least 5 years office experience.
Rule 9 of these rules further provided as under for the guidance of the Standing Council at the time of making recommendations:
(a) In respect of a post carrying a minimum monthly salary (exclusive of allowances) of more than rupees one hundred and has to be filled up by means of promotion of a member of the service, the recruitment and promotion committee shall take into consideration the seniority of the members of the service as well as the remarks about their work they have been given to them by the officers under whom they have served and serving.
The decision taken by the Standing Committee will there after be implemented by the Chief Executive Officer".
It is an admitted fact that Petitioner O.P. Gupta was appointed as a senior clerk on 8-10-1958 while Petitioner Ramji Dass was appointed as such on 15-12-1958. Therefore one of the contentions raised by the contenting parties in both these writ petitions is whether these Petitioners possessed sufficient qualification to be selected for promotion as Assistants in the month of July 1962 in view of the fact that on that date they had not completed five years of office experience as senior clerks. The Standing Committee, however, seems to have proceeded on the assumption that they had completed 5 years of office experience in general though not on the post of a senior clerk. It is found from the proceedings of the Standing Committee, which were referred to by both the parties during the course of arguments before us, that the Standing Committee proceeded to select the persons belonging to the field of choice on the principle of merit-cum seniority and recommended four names which included the names of Petitioners Bhatnagar and Ramji Dass. Petitioner O.P. Gupta who was senior to Ramji Dass was not recommended though he fell in the field of choice probably because the Committee made recommendations on the basis of merit-cum-seniority.
The above recommendations of the Standing Committee were, however, not implemented for about one year.
It is found that thereafter it was proposed that the Territorial Council should be abolished. Since this abolition was under active consideration, the Government of India in the Ministry of Home Affairs issued a Circular on 6th September 1962 to stop confirmation, promotion and direct recruitment in in services of the Council. A copy of this Circular is found at Annexure-B of C.W.P. 136 of 1975 and the same is as under:
"In view of the impending changes in the administrative set-up of the Union Territories of Himachal Pradesh, the Government of India have decided that until the new administrative set-up comes into force, the Himachal Pradesh Admn. and T.C. should not confirm employees in the departments partly administered by the T.C. and partly by the administration such as Education, Medical, Animal Husbandry, Sectt. etc. but departments which are under the exclusive jurisdiction of either the Administration or the T.C. may confirm officers in their respective departments if it is absolutely necessary and if the confirmations have become ripe and fulfil all other criteria laid down for such confirmations. In the same way, promotions or direct recruitment to services and posts under them should not be made unless such recruitment or promotion is necessary for technical and teaching posts required for plan schemes. It should be clearly under stood that these promotions and recruitment would purely be ad hoc and would give no claim to the incumbents for seniority or confirmation or for other purposes. The promotees or the direct recruits should also be told that after new set up comes in force, their services, as the case may be, may be terminated or they might be reverted at any time or after the coming into force of the new set up. If any specific difficulty arises in the implementation of these instructions, the matter might be referred to the Ministry.
I am to request that these instructions may be communicated to the Territorial Council and also brought to the notice of the concerned authorities under the Administration immediately under intimation to this Ministry for strict compliance.
The contents of this circular clearly show that the Himachal Pradesh Administration as well the Territorial Council were directed by the Government of India not to confirm employees in the departments concerned unless it was absolutely necessary, and the Council was further given to understand that even in cases where the recruitment or promotion was found to be necessary, the same should be purely on ad hoc basis so that the incumbents could have no claim for seniority or confirmation or for any other purpose.
This circular has been interpreted by this Court as having no statutory binding force, and as containing purely executive instructions. Such a view has been taken in two cases, namely, (1) K.K. Vij v. The Government of Himachal Pradesh reported in 1970 SLR 8 (2) Dharamvir Purl v. The State of Himachal Pradesh reported in ILR 1976 HP 255. As would be seen hereafter, though these decisions take the view that this circular was not legally binding on the Territorial Council, there is nothing therein to show that the Council was not at liberty to be pursuaded by the spirit of this circular and to take action accordingly.
The Territorial Council was to stand abolished on 1st July 1963 , as according to the Government of Union Territories Act, which came into force on 1-7-1963, the system of diarchical administration envisaged by Territorial Council Act was to end, and the Himcahal Pradesh territory was to be administered as per provisions of the Union Territory Acts.
As stated above, the recommendations of the Standing Committee for the recruitment to the vacant posts of Assistants remained unimplemented. However, on the eve of the abolition of the Council, i.e. on 21st June, 1963, the Standing Committee recommended that the four persons selected by it for promotion to the post of Assistants should be given ad hoc appointments and accordingly such an appointment order was issued by the Chief Executive Officer of the Council on 25th June, 1963. This order is found at Annexure-A and Annexure P-3 respectively in C.W.P. 136 of 1975 and 149 of 1978. Thus, the Petitioners D.K. Bhatnagar and Ramji Dass were promoted on 25th June, 1963 as Assistants on ad hoc basis.
Petitioner Gupta of C.W.P. 149 of 1978 came to know of these promotions and, therefore, on 27th June, 1963 he filed his representation against these promotions as found at Annexure P-4 in C.W.P. 149 of 1978. By this representation he contended that his seniority was ignored. The Standing Committee, however, observed that since the promotions in question were ad hoc nothing was required to be done with regard to this representation of Shri Gupta. This will be evident from the proceedings of the Standing Committee dated 28-6-1963 which are as under:
It was observed that the appointments to the posts of Assistants approved by the Appointments and Promotions Committee in its meeting held on the 16th July, 1962, were ordered on the basis of merit-cum-seniority. It was further observed that as these appointments have been made on ad hoc basis, there should be no ground for representation against the said appointments.
These proceedings clearly show that Shri Gupta''s representation against these promotions virtually remained pending without being decided on merits.
Since the Council stood abolished as from 1-7-1963, all of its officers/servants were integrated with the Secretariat department of the Himachal Pradesh Administration. For the purpose of this integration the rules called Integration of Territorial Council Employees Rules, 1963 were framed. These rules were pursuant to Section 58(2) of the Government of Union Territories Act, 1963, which was in the following terms:
(2.) Notwithstanding the repeal of the Territorial Councils Act, 1956,
(a) every officer and other employee of the Territorial Council of a Union territory serving under the Council immediately before such repeal shall become an officer or other employee of Government and shall be employed in connection with the administration of the Union territory with such designation as the Administrator may determine and shall hold office by the same tenure and at the same remuneration and on the same terms and conditions of service as he would have but for such repeal held the same and shall continue to do so unless and until such tenure, remuneration and terms and conditions are duly altered by the Administrator.
Pursuant to the provisions of Section 58(2) and the Integration Rules above referred to, the Administrator of Himachal Pradesh passed the following order on 1-7-1963, i.e. on the date on which the Government of Union Territories Act, 1963, came into force:
(a) As from the 1st July, 1963, every officer and other employee of the Territorial Council of Himachal Pradesh serving under the Council on the 30th June, 1963 in a post specified in col. 2 of the Schedule to this Order shall become an officer or other employee of Government, and shall be employed in connection with the administration of Himachal Pradesh with the designation specified in col. 3 of the Schedule to this order, and shall hold office by the same terms and conditions of service as he would have but for the repeal of the Territorial Councils Act, 1956 (Act No. 103 of 1956) held the same and shall continue to do so unless and until such tenure, remuneration and terms and conditions are duly altered by the administrator; and
(b) As from the 1st July, 1963, the posts both permanent and temporary under the Territorial Council specified in col. 2 of the Schedule to this Order shall be included in and be integrated with the corresponding grade under the Government of Himachal Pradesh, specified in col. 3 of the said Schedule as permanent and temporary posts as the case may be.
The schedule which is attached to this order (known as S.R.O.H.P.-8), shows that the post of an Assistant under Territorial Council was equated with the post of Assistants in the new set up under the Government of Himachal Pradesh, and similar was the equation for the post of Senior clerks. A copy of this order is found at Annexure R.B. in C.W.P. 136 of 1975.
So far as the record of both these cases is concerned, it does not contain any formal order of equation with regard to the Petitioners. But it appears that Petitioners Bhatnagar and Ramji Dass continued to function as Assistants on ad hoc basis in the new Secretarial set up of the Himachal Pradesh Government, and Petitioner O.P. Gupta continued to function as senior clerk in that set up.
In view of the above position, Petitioner O.P. Gupta pursued his objections regarding the promotion of Petitioner Ramji Dass who, according to him, was junior to him in the list of senior clerks. By reference to Annexure P-5 of C.W.P. 149 of 1978, which is a memorandum issued by the Government of Himachal Pradesh, it is found that Shri Gupta had given a representation dated 9th July, 1964 protesting against the promotion of Assistants on the eve of the abolition of the Teritorial Council. By this Annexure P-5 the Government informed him that his previous representation in this regard was receiving "due consideration" by the Government. This is also evident by reference to Annexure P-6 and Annexure P-7 which are respectively dated 27th July, 1966 and 7th October, 1966. O.P. Gupta, however, did not get any relief and, therefore, on 21-11- 1966 he submitted a representation to the then Chief Minister as found at Annexure P-8 of his writ petition.
It appears that since Shri Gupta''s representation remained pending even after the abolition of the Territorial Council, the Government of Himachal Pradesh was in correspondence with the Government of India in that connection in view of the provisions contained in Section 58(2) of the Government of Union Territories Act, 1963. It is found that ultimately on 21st September, 1968 the Government of India took the following decision on the objections raised by Shri O.P. Gupta, as found from Annexure R-1 of the writ petition of Shri Gupta:
�No. 3/45/67-HMT
GOVERNMENT OF INDIA MINISTRY OF HOME AFFAIRS
To
The Chief Secretary to
the Government of Himachal Pradesh.
New Delhi-1, the 21st September, 1968 30 Bhadra, 1890.
Subject: Reversion of Shri Ramji Dass.
Sir,
I am directed to refer to the correspondence resting with your letter No. 17-1/66-SAD, dated the 18th June, 1968 and to state that after careful consideration this Ministry are of the view that the promotion of Shri Ramji Dass to the post of Assistant in June, 1963 was erroneous and that he should be reverted to his previous post from a prospective date. Earlier ad hoc promotion of Shri Dass will not entitle him to any claim.
Yours faithfully,
R.C. GUPTA, Under Secretary to the Govt. of India�.
The learned Advocates of the parties have referred to the original office file which was produced before us by the Government, and by reference to this file, we have found that the Government of Himachal Pradesh was also of the opinion that the recommendations made by the Standing Committee of the Territorial Council in its meeting held in the month of July, 1962 in favour of the promotions of four persons including the Petitioners Bhatnagar and Ramji Dass, were against the rules and, therefore, deserved to be set aside. It seems that by the above quoted letter the Government of India agreed with this view of the Himachal Pradesh Government and directed that Government to revert Petitioner Ramji Dass to his previous post from a prospective date. It further directed that Shri Ramji Dass would not be entitled to any claim with regard to his earlier ad hoc promotion as Assistant.
Before the above quoted decision of the Government of India, however, the Petitioner O.P. Gupta got his own promotion as Assistant on ad hoc basis with effect from 30th March, 1968 in the Himachal Pradesh Secretariat. This is clear by reference to the office memorandum dated 5th April, 1968 found at Annexure P-10 of Gupta''s petition.
Though the Government of India conveyed its above quoted decision dated 21st September, 1968 to the Government of Himachal Pradesh, the said Government of Hirnachal Pradesh did not give any information thereof to Shri Gupta, nor implemented the same with the result that Shri Gupta went on making representations against the earlier promotion in favour of Petitioner Ramji Dass. Curiously enough, the Government went on informing Shri Gupta with regard to these representations that they were under consideration of the Government. This will be evident by reference to Annexure P-11 and Annexure P-12 which are respectively dated 25th July, 1969 and 26th February, 1971. It is not understood from the record of the case as to why the Government of Himachal Pradesh did not inform Shri Gupta about the decision of the Government of India in his favour or as to why the said decision of the Government of India was not implemented by the Himachal Pradesh Government.
It is further found that even though the Government of Himachal Pradesh knew that the Government of India had accepted the representation of Shri Gupta and that the Petitioner Ramji Dass was required to be reverted without claiming any advantage on account of his ad hoc promotion as Assistant, on 5th June, 1972 the Government of Himachal Pradesh issued an office order regularising the ad hoc promotions of Petitioners D.K. Bhatnagar and Ramji Dass as Assistants with retrospective effect as from 25th June, 1963, the date on which they were given ad hoc promotions promotions by the Territorial Council on the eve of its abolition. This is apparent by reference to Annexure-D of the C.W.P. 136 of 1975. However, before this happened, Himachal Pradesh Government had virtually accepted the contentions of Shri Gupta on 22nd February, 1972 when by an office order he was given four advance increments under Fundamental Rule 27 with effect from 30th March, 1968, the date on which he was given ad hoc promotion as Assistant. This is evident by reference to Annexure P-13 of Gupta�s petition which is in the following terms:
As a result of promotion of his junior Assistants prior to Shri O.P. Gupta and subsequent decision of the Government for promotion of Shri O.P. Gupta as Assistant with effect from 30th March, 1968 and to bring him at par with the pay that his juniors were drawing, the Governor, Himachal Pradesh, has been pleased to give a higher initial start of Rs. 285.00 to Shri O.P. Gupta on his promotion as an Assistant in the pay scale of Rs. 225-15-260/20-50-500 with effect from 30th March, 1968 with the next date of increment on 30th March, 1969, by giving him four advance increments under the provisions of Fundamental Rule 27.
It is clear from this order that instead of implementing the above quoted decision of the Government of India dated 21-9-1968 the Government of Himachal Pradesh resorted to a device by which Shri Gupta would get his increments without getting seniority. Four advance increments contemplated by this order were also not quite in order and, therefore, subsequently the Government came out with further order giving five advance increments. This order is found at Annexure P-16 of Shri Gupta''s petition and is dated 3lst December, 1973.
Shri Gupta, however, persisted in his demand for obtaining proper seniority as an Assistant as will be clear by reference to Annexure P-14 which is a copy of his representation dated 7th June, 1972.
As stated above, the services of Petitioners Bhatnagar and Ramji Dass as Assistants were regularised on 5-6-1972. They were thereafter confirmed in that post on 21st December, 1973 along with other incumbents. This is evident by reference to Annexure-E of writ Petition No. 136/75.
After the above referred confirmation of the Petitioners Bhatnagar and Ramji Dass in the posts of Assistants, a seniority list of Assistants as on 1-7-1963, the date on which the Government of Union Territories Act came into force, was published and circulated as found from office memorandum Annexure-F of C.W.P. 136 of 1975 which is dated June, 1973. This seniority list shows the names of Petitioners Bhatnagar and Ramji Dass at serial No. 122 and 123. Obviously, the name of Petitioner O.P. Gupta would not appear there because on 1-7-63 he was not promoted to the post of Assistant.
Thereafter, on 1st November, 1966 the States of Punjab and Himachal Pradesh were re-organised as a result of which some area of erstwhile State of Punjab was integrated with Himachal Pradesh. Consequently, the servants inherited from the Punjab State Were to be integrated. At annexure-G of C.W.P. 136 of 1975 we find the integrated seniority list of Punjab and Himachal servants as on 1-11-1966. This list shows the names of Petitioners Bhatnagar and Ramji Dass at serial Nos. 124 and 125 but does not mention the name of Petitioner Shri O.P. Gupta as he was not promoted as Assistant even on 1-11-1966.
The record of the case shows that even though the Government of Himachal Pradesh gave five advance increments to the Petitioner O.P. Gupta, the said Petitioner was not satisfied as he was losing his seniority. His case was that he could have been given the post of an Assistant with effect from the month of June, 1963 when the Territorial Council had given promotion to Ramji Dass as an Assistant. He, therefore, pursued his remedies by filing representations. These representations also contained the prayer that the confirmation of the Petitioner Ramji Dass on the post of Assistant should be stayed if decision on his representations was to be delayed. All this is clear by reference to the copies found at Annexure P-18 and Annexure P-19 which are respectively dated 14-2-1974 and 28-1-1975.
Ultimately, the Government passed several orders on 30th April, 1975 by which the whole matter was proposed to be set right. It is found that by the time these orders were passed the Government of Himachal Pradesh realised that the services of Petitioners Bhatnagar and Ramji Dass could not have been equated with the post of Assistants on 1st July, 1963, when the Territorial Council stood abolished, in view of the fact that they were holding the posts of Assistants only on ad hoc basis, which meant that they had no right on that post. The Government therefore thought that these two Petitioners Bhatnagar and Ramji Dass could not have been regularised on the posts of Assistants on 5-6-1972 with effect from 25-6-1973, and could not have been confirmed on 21-12-1973 as was done by the orders found at Annexures D & E of Writ Petition No. 136 of 1975. It is found that this conclusion was reached by Government after making a reference to Departmental Promotion Committee and obtaining its opinion about the whole dispute raised by the Petitioner O.P. Gupta. The Government of Himachal Pradesh therefore, issued various orders found at Annexures H to O (of writ petition No. 136 of 1975) simultaneously on the same day, i.e. on 30th April, 1975. We shall shortly describe the nature of these orders (copies of some of these orders are also produced by O.P. Gupta in his petition).
By order Annexure H, the Government has observed that since the appointments of D.K. Bhatnagar and Ramji Dass as Assistants were purely on ad hoc basis, their regularisation as per order dated 5th June, 1972 with retrospective effect was void ab initio and could not be sustained. The order further observed that a representation was made against that order by Shri O.P. Gupta who was also eligible for consideration for promotion to the post of Assistant. The Government by this order therefore set aside the order dated 5th June, 1972 regularising the services of M/s. Bhatnagar and Ramji Dass as Assistants and directed that these two Petitioners should be assigned seniority at appropriate places as on 1-7-1963 among the concerned categories of employees and should then be reconsidered for promotion to the posts of Assistants. Thus, by this order the regularisation of the services of M/s. Bhatnagar and Ramji Dass which was done in the year 1972 was cancelled, and they were ordered to be reconsidered for promotion to the post of Assistants.
By another order Annexure-I it was ordered on recommendation of the Departmental Promotion Committee that the names of M/s. Bhatnagar and Ramji Dass should be removed from the seniority list of Assistants as on 1-11-1966 found at Annexure-G and that their names should be inserted in the seniority list of junior scale Stenographers and senior clerks respectively. Thus, by this order the names of Petitioners Bhatnagar and Ramji Dass were inserted in lower category of posts on which they had their lien.
By Annexure-J, the Government, on recommendations of the Departmental Promotion Committee, terminated the ad hoc promotions "made earlier from time to time" and further ordered, with immediate effect, the officiating promotions of the persons listed in the Annexure to that order to the post of Assistants. The names of M/s. Bhatnagar and Ramji Dass appear in the Annexure to the order. Thus, by this order the services of these two Petitioners as Assistant were regularised as from 30th April, 1975 instead of 26-3-1963 as was done earlier.
By order Annexure-K, the previous confirmation of M/s. Bhatnagar and Ramji Dass on the post of Assistant was cancelled and simultaneously by order Annexxure-L these two Petitioners were confirmed on the posts of Assistants with immediate effect, i.e. with effect from 30th April, 1975.
Orders found at Annexures M to O are merely consequential orders.
Thus, by the orders found at Annexures H to O of writ petition 136 of 1975 the Petitioners Bhatnagar and Ramji Dass of that writ petition lost their seniority as Assistants with effect from 25th June, 1963 but got the same from 30th April 1975. Therefore, being aggrieved by these orders they have filed writ petition No. 136 of 1975 praying that orders Annexures H to O should be quashed.
The contention of M/s. Bhatnagar and Ramji Dass is that they had acquired right to hold the post of Assistants on the regularisation of their services as such by order dated 5-6-1972 with effect from 25-6-1963 and by the subsequent confirmation on these posts on 21-12-1973. They further contend that orders Annexures H to O of their petition have been passed without serving them with any show cause notice which was essential under Article 311(2) of the Constitution as these orders Annexures H to O resulted in their reduction in rank. These Petitioners further contend that final integrated list found at Annexure G was passed after the approval of the Central Government under State Reorganisation Act and, therefore, no change in that list could have been made by the Government of Himachal Pradesh by the orders found at Annexures H to 0 without the further approval of the Government of India.
These two Petitioners have further contended that their promotion as Assistants made by the Territorial Council on 25-6-1963, on the eve of the abolition of that Council, was regular and not ad hoc inasmuch as it was the result of the recommendation of the Standing Committee which had acted purely according to the recruitment and promotion rules by which the services of the Territorial Council Were governed. According to these Petitioners, therefore, they were entitled to hold the post of Assistants in the Himachal Pradesh Government Secretariat even after the abolition of the Territorial Council. According to them, therefore, the regularisation of their service as per order dated 5th June, 1972, and the subsequent confirmation on 2lst December, 1973 were quite in order and were not liable to be set aside. It should be noted at this stage that Petitioners Bhatnagar and Ramji Dass have not preferred to join O.P. Gupta as a party to their petition even though the impugned orders Annexures H to O Were passed as a result of the objections raised against their promotions by Shri Gupta. The State of Himachal Pradesh has, however, resisted their petition on the ground that these Petitioners were promoted by the Territorial Council as Assistants purely on ad hoc basis and their services as Assistants were inherited by the Himachal Pradesh Administration only on ad hoc basis. According to the Respondent State, these two Petitioners were holding regular posts respectively as junior scale Stenographer and senior clerk and, therefore, they could have been equated only as such and hence the regularisation of their services as Assistants from the back date of 26th June, 1963 as per order dated 5-6-72 and their confirmation as Assistants on 21-12-1973 were void ab inito, and being void ab initio, no right accrued to them as per these orders, and therefore these orders were liable to be set aside without any notice to them. As for the integrated seniority list, the contention of the Government is that the approval of the Central Government was not required for omitting the names of these Petitioners from this seniority list in view of the act the regularisation of their services as Assistants and subsequent confirmation made respectively made in the years 1972 and 1973 were void ab initio.
So far as the Petitioner O.P. Gupta''s writ petition No. 149 of 1978 is concerned, his learned Advocate has rightly conceded that he does not claim any seniority over Shri Bhatnagar. Shri Bhatnagar belonged to a separate category of junior scale Stnographers and was rightly treated as senior to him. He, however, contends that Petitioner Ramji Dass belonged to the same category of service, namely, senior clearks, and in that category of service Shri Ramji Dass was junior to him and, therefore, could not have been promoted as Assistant before he himself was promoted.
The grievance of Shri O.P. Gupta, so far Ramji Dass is concerned, would be completely satisfied in view of the orders found at Annexures H to O in the writ petition 136 of 1975. However, Shri Gupta contends that he should have been promoted as Assistant from the back date of 25th June, 1963 when M/s. Bhatnagar and Ramji Dass were promoted as Assistants by the Territorial Council. He further contends that on account of the stay order obtained by M/s. Bhatnagar and Ramji Dass in their writ petition 136 of 1975, their seniority, as found in the list Annexures F and G of petition No. 136 of 1975, has continued with the result that these two gentlemen have been given selection grade and he himself has been robbed of this selection grade on account of the want of a proper place in the seniority list.
Since Petitioner O.P. Gupta has claimed seniority as Assistant from 25-6-1963, he has joined Respondents 5 to 85 over whom he claims seniority. In his writ petition, therefore, he has claimed the relief of quashing the Annexures P-3, P-13 to P-21, P-22 to P-29, P-32 and P-39 to P-44 of his writ petition and has claimed a declaration that he is senior to Respondents 4 to 85.
From the above facts it is apparent that both the writ petitions contain common questions of facts and law which arise to be determined on the same set of evidence. Thereafore, on 1st August, 1979 when these matters came up for hearing we allowed the parties of both the cases to intervene in each case to safeguard their interests and on the request and consent of the learned Advocates of the concerned parties we have heard both the matter together treating evidence recorded in one case as the evidence in the other, and have disposed of both these cases by this common judgment.
From the facts stated above the only substantial question which arises to be determined in both these matters is whether the orders Annexures H to O which are impugned in petition No. 136 of 1975 are valid or not. It is on the findings on this question that both the petitions would stand substantially disposed of.
The State seeks to justify the orders found at Annexures H to O on the ground that on consultation with the D.P.C. it was found that the orders as regards the regularisation and confirmation of the services of S/Shri Bhatnagar and Ramji Dass as Assistants were void ab initio as they were based on the wrong footing that their services could have been equated with those of regular holders of the posts of Assistants in the Secretariat. According to the State, therefore, its action of cancelling this regularisation and passing fresh consequential orders regarding the same was fully justified. It was pointed out that the Standing Committee of the Territorial Council had acted against the rules in recommending the promotion of these two Petitioners in its meeting dated 16th July, 1962, and that even if it is held that the said recommendations Were in accordance with the prevailing rules, the promotion of these two Petitioners was merely ad hoc which did not create any right in their favour on the posts of Assistants, and hence their services could not have been equated with those of Assistants, in the Secretariat of the Government.
As against this, the contention of the Petitioners is that their selection by the Standing Committee was proper and legal and hence their subsequent appointment, though termed ad hoc, was in reality a regular appointment. This being so, it was contended on behalf of the Petitioners, they were entitled to be equated on the posts of Assistants and the impugned orders found at Annexures H to O had no justification.
We are of the opinion that in view of the fact that the promotion and appointments of S/Shri Bhatnagar and Ramji Dass as Assistants were merely ad hoc, it would not be strictly necessary to consider whether the recommendations of the Standing Committee in favour of these Petitioners were in order or not. We would, however, like to note that according to Rule 9(a) of the Himachal Pradesh Territorial Council Secretariat Recruitment Rules, quoted above, the recruitment and promotion Committee was to take into account the seniority and the service record of the concerned servants. Neither this rule nor any of the other rules provided for promotion to the posts of Assistants on the basis of merits-cum-seniority. Unless the rules show that a particular promotion should be based principally on the principle of selection, the formula of merit-cum-seniority should not be applied and the normal principle of seniority-cum-merits should be followed. Under the circumstances, the recommendations of the Standing Committee, based as they were on the principle of merits-cum-seniority, were not justified and the Himachal Pradesh Administration was justified, in its subsequent correspondence with the Government of India, in taking the stand that the Standing Committee''s recommendations in favour of S/Shri Bhatnagar and Ramji Dass were against the rules.
In this connection it was contended that according to Rule 6(j) of the Recruitment Rules of the Territorial Council, recruitment to the post of Assistant from the cadre of senior clerks or junior scale stenographers could have been made only from those senior clerks and junior scale stenographers who possessed five years of "office experience" as such. The contention was that since S/Shri Bhatnagar and Ramji Dass did not possess five years office experience as junior scale stenographer and senior clerk on 16-7-1962 on which date the Standing Committee made recommendations in their favour, they did not fall within the field of choice and, therefore, also the recommendations in their favour were against the rules. This contention is based on the presumption that the expression "office experience" found in the relevant clause of Rule 6 connotes office experience on a particular post. The contention of the learned Advocate of these Petitioners was, however, that the expression "office experience" connotes office experience in any post in any department and, thereore, it can not be said that the Standing Committee had in any way infringed the provisions of Recruitment Rule No. 6(j). Since we are of the opinion that the recommendations of the Standing Committee would be vitiated on the ground that they were based on the principle of merits-cum-seniority, and not on the principle of Seniority-cum-merits, we do not propose to go into this contention.
The next important question which arises to be determined is whether the appointment of S/Shri Bhatnagar and Ramji Dass as Assistants in the cadre of the Territorial Council made on 25-6-1963 was really an ad hoc appointment or a regular appointment. On this point it was contended on behalf of these Petitioners by their learned Advocate that thought these appointments are termed as "ad hoc", really speaking, they were regular appointments and not ad hoc appointments. It was contended that this being the position, both these Petitioners had a right to be equated on the post of Assistants in the new set up on the principles of equation prescribed by the Administrator.
On consideration of the evidence which is recorded in the case, we find unable to accept this contention. In this connection it would be worth while to note that the recommedation in favour of these Petitioners for promotion as Assistants was made by the Standing Committee as early as the month of July, 1962. For about one year this recommendation was not implemented by the Council, and in the mean while, a situation developed which clearly showed that the Council was to be abolished. The Government of India had issued instructions, which are already quoted above, showing that fresh appointment and promotion should be made only if it was found absolutely necessary, and that when ever it was found absolutely necessary to make promotion or appointment, the same should be made act hoc. It is true that these instructions were merely executive instructions and the Territorial Council was not boud to carry out them as held by this Court in cases of K.K. Vij and Dharamvir Puri (supra). However, even though the Territorial Council was not legally bound to carry out these executive instructions, it was none the less free to arrive at its own conclusion after being persuaded by the instructions contained in the Government of India circular above referred to. There is nothing in the above referred two decisions of this Court to show that these executive instructions were illegal or that the Territlrial Council was not bound to he persuaded by the force of the argument contained therein.
Now, on a reference to the proceedings of the Standing Committee of the Terriotrial Council which were made available to both the contending parties, we find that on 21-6-1963, the said Council passed the following resolution for the actual appointment of S/Shri Bhatnagar and Ramji Dass as Assistants:
It was unanimously decided that the promotions already approved by the Standing Committee for the appointment and promotion in its meeting held on 16-7-1962, may be given effect to with immediate effect. It is clarified that the appointments are on ad hoc basis" (emphasis supplied).
According to the Recruitment Rules prevailing in the Territorial Council, all appointments were to be made on the recommendation of the Standing Committee. Therefore, the Standing Committee was within its right to recommend that the promotion of S/Shri Bhatnagar and Ramji Dass should be made on ad hoc basis. These recommendations of the Committee to make the appointment on ad hoc basis were ultimately accepted by the Committee and the appointment of these two Petitioners on the promoted posts of Assistant was, in fact, made on ad hoc basis.
It is evident from the facts of the case that the Territorial Council was abolished within five days after this promotion. It is, therefore, apparent that the promotions were made not on account of any exigency arising out of the administration of the Council affairs, but for considerations which were extraneous to the said administration. We were told during the course of the arguments that had these promotions not been made, four vacant posts of Assistants would have gone to the new set up of the administration. We find that even if it is so believed, it cannot be said that these promotions were made on account of any administrative exigency of the Territorial Council. Under the circumstances, we are unable to accept the contention of these Petitioners, S/Shri Bhatnagar and Ramji Dass, that their promotions in the month of June, 1963 on the eve of the abolition of the Council were regular promotions. It is thus evident that when the services of the Petitioners S/Shri Bhatnagar and Ramji Dass were taken over by the new administrative set up, they were functioning only as ad hoc appointees on the posts of Assistants.
Now, if once it is believed that these Petitioners were holding the posts of Assistants as ad hoc appointees, it follows as a necessary corollary that they had no right on that post, unlike regular appointees. Their legal right was on the respective posts from which they were promoted. Under the circumstances, according to the equation formula quoted above, their services could not be equated with the services of the Assistants in the new set up.
In this connection it is worthwhile to make a short reference to the integration rules called "Integration of Territorial Council Employees Rules, 1963" framed under Sub-section (2) of Section 58 of the Government of Union Territories Act, 1963. Rule 2 of these rules defines the expression "persons regularly appointed" as meaning "a person appointed before 6-9-1962 to a post under the Government or the Territorial Council in accordance with the relevant rules of recruitment or if there were no such rules, by a due process of selection, but does not include a person appointed ad hoc." This definition makes a reference to the date of 6-9-1962 because the Government of India circular which guided the Territorial Council and the Administration not to make fresh appointments or promotion and to make them only ad hoc if found absolutely necessary, is dated 6-9-1962. Therefore, these rules which have statutory power clearly contemplate that the persons appointed ad hoc after 6-9-1962 are not the persons regularly appointed.
Rule 3 of these integration rules empower the Administrator to make a declaration that any post or posts whether temporary or permanent under the Territorial Council can be included in the integrated grade from such date as may be specified in the order. The word "grade" is defined in Clause (4) of Rule 2 as meaning a group of posts the incumbents of which are borne on a common seniority list. The declaration contemplated by Rule 3 was required to be made by the Administrator taking into consideration the scale of pay and nature of duties and responsibilities of the post in respect of which the declaration was to be made. Rule 4(1) provided as under:
(1) Every person holding a post referred to in Rule 3 immediately before the appointed day shall, as from the appointed day, be deemed to have been appointed to that post by the authority competent to make appointments there to and subject to the provisions of these rules, he shall continue to hold that post by the same tenure and at the same rate of pay and dearness allowance as were applicable to him while holding the post under the Territorial Council:
Provided that nothing in this rule shall be deemed to restrict the power of the appointing authority to terminate at any time an ad hoc appointment or appointment made on or after the 6th September, 1962.
The proviso attached to Rule 4(1) clearly saves the power of the appointing authority to terminate at any time ad hoc appointment or appointments made on or after 6-9-1962 which was the date of the Government of India circular above referred to.
Then follows Rule 5 which contemplates about the combined seniority list of all the persons in the integrated grade. This Rule 5 originally contemplated the assignment of seniority in the order of dates from which the persons were "confirmed" on a particular post. But this Rule 5 was working hard on the employees who were continuously officiating on a post and, therefore, was amended on 12-7-1972. This amended rule was in the following terms:
(5) There shall he a combined seniority of all the persons regularly appointed according to the length of service in an integrated grade:
Provided that in case of persons appointed as a result of some selection/examination and interview, the relative order of merit assigned to them at the time of selection/examination and interview shall be the order of seniority. In cases where no order of merit was drawn at the time of selection/examination and interview and the date of appointment of certain officials happens to be the same, the older in age shall be senior:
Provided further that the interse seniority assigned to them immediately before the appointed day under the Administration and the Territorial Council, as the case may be, and the inter se seniority assigned to them before 15-8-1957 shall be maintained.
This amended rule, therefore, clearly contemplates the assignment of seniority in the combined list only to those who were "regularly appointed". We have already noted the meaning of the expression "regularly appointed". This expression clearly rules out the persons who were appointed ad hoc.
In view of these statutory provisions regarding integration, it is obvious that S/Shri Bhatnagar and Ramji Dass could not have claimed the intergration of their services in the new set up as Assistants. Therefore, the regularisation of their services and their confirmation on the posts of Assistants made as per Annexures ''D'' and ''K'' of C.W.P. No. 136 of 1975 respectively on 5-6-1972 and 30-4-1975 were obviously illegal and void.
It should further be noted that soon after the ad hoc appointments of S/Shri Bhatnagar and Ramji Dass by the Territorial Council in the year 1963 on the eve of its abolition, Petitioner O.P. Gupta of C.W.P. No. 149 of 1978 and others raised objection and, as already noted above, Shri O.P. Gupta''s objection was not taken into account by the Standing Committee of the Territorial Council on the simple ground that the appointments were merely ad hoc. As narrated above, Shri O.P. Gupta persisted in his representations and they were ultimately referred to the Central Government in view of the provisions contained in Section 58(2) of the Government of Union Territories Act, with State Government''s recommendations in favour of Shri Gupta. Ultimately, on 21-9-1968 the Central Government gave its definite opinion vide Anncxure R-I-114 of C.W.P. No. 136 of 1975 that Shri Ramji Dass''s promotion was illegal and that he should be reverted to his original post. It was in spite of this decision that the State Government illegally regularised the services of Shri Ramji Dass as Assistant on 5-6-1972 with a back date of 25-6-1963 and also subsequently confirmed him on that post. It was not legally open to the State Government to do this in defiance of the specific opinion given by the Government of India. The learned Advocate of S/Shri Bhatnagar and Ramji Dass contended that this opinion of the Government of India in favour of Shri O.P. Gupta was merely recommendatory, and had no binding force. We find unable to accept this contention in view of the proviso (1) which is attached to Section 58(2)(a) of the Government of Union Territories Act, 1963. This proviso is as under:
The original remuneration and terms and conditions of service of any such officer or other employee shall not be altered to his disadvantage without the previous sanction of the Central Government.
Seniority of Shri O.P. Gupta was one of the terms and conditions of service and, therefore, any decision with regard to the alteration of that seniority working to the disadvantage of Shri Gupta could not be made by the State Government without the sanction of the Central Government. Even the State Government was conscious of this position and, therefore, it had entered into correspondence with the Central Government on the representation of Shri O.P. Gupta. Under the circumstances, on the ratio of the decision given by the Supreme Court in Jagtar Singh and Others Vs. State of Punjab and Others, the State Government could not have passed the order of regularisation and confirmation of Ramji Dass as Assistant from the back date of the month of June, 1963 without obtaining the sanction of the Central Government. This is another reason why this regularisation and confirmation of Ramji Dass as Assistant was wrong and void ab initio.
Ultimately, it was on the recommendation of the D.P.C. that the State Government discovered this mistake in the year 1975 and tried to rectify the same by passing the impugned orders Annexures H to O on C.W.P. No. 136 of 1975. The State Government was fully justified in rectifying the obvious mistake committed by it by passing the impugned orders found at Annexures H to O.
It was, however, contended by the learned Advocate of the Petitioners S/Shri Bhatnagar and Ramji Dass that even if the State Government was justified in passing the orders found at Annexures H to O with a view to rectify its mistake committed earlier, it should have given a proper show cause notice to the Petitioners in view of the fact that on the date on which the orders Annexures H to O were passed these Petitioners were already confirmed and the impugned orders Annexures H to O resulted in reduction of their rank to a lower post. The contention was that the State Government have infringed the rule of natural justice in passing these orders without giving any opportunity to them to show cause why these orders should not be passed. In this connection reliance was placed on several decisions including the decision given by the Supreme Court in State of Uttar Pradesh v. Sughar Singh reported in 1974 (1) SLR 435 and in Regional Manager v. Pawan Kumar reported in 1976 (2) SLR 44. In Sughar Singh''s case the Supreme Court has made the pertinent observations as under:
An order of reversion is in its immediate effect bound always to be a reduction in rank. Even a reversion from a higher but temporary or officiating rank to a lower substantive rank is in a sense a reduction. But such orders of reversion are not always reduction in rank within the meaning of Article 311. If the officer is promoted substantively to a higher post or rank, he gets a right to that particular post or rank and if he is afterwards reverted to the lower post or rank which he held before, it is a "reduction in rank" in the technical sense in which the expression is used in Article 311. The real test in all such cases is to ascertain if the officer concerned has a right to the post from which he is reverted. If he has a right to the post then a reversion is a punishment and cannot be ordered except in compliance with the provisions of Article 311. If, on the other hand, the officer concerned has no right to the post, he can be reverted without attracting the provisions of Article 311. But even in this case, he cannot be reverted in a manner which will show conclusively that the intention was to punish him. The order itself may expressly state that the officer concerned is being reverted by way of punishment. In fact the order may in various other ways cast a stigma on the officer concerned. In all such cases, the order is to be taken as a punishment. Sometimes again, the order of reversion may bring upon the officer certain penal consequences like for feiture of pay and allowances or lOSS of seniority in the subordinate rank or the stoppage or postponement of future chances of promotion: in such cases alsothe government servant must be regarded as having been punished and his reversion to the substantive rank must be treated as a reduction in rank. In such a case Article 311 be attracted.�
In Pawan Kumar�s case, the point was not considered as to in what type of cases a show cause n�otice should be given with a view to comply with the rules of natural justice.
The learned Advocate of the petitioners also drew our attention to the decision given by the Patna High Court in Sheo Naath Prasad v. State of Bihar reported in 1971 (2) SLR 447 wherein it is observed that if a civil servant has a right to continue in the post, then unless the contract of employment or the rules provided to the contrary, the person concerned cannot be reduced in rank except after following the constitutional procedure of Article 311(2). It is further observed in that case that reduction in rank may be by way of punish ment and it may be an innocuous thingand if the government servant has a right to a particular rank then the very reduction from that rank will operate as a penalty for he will then lose the emoluments and privileges of that rank. In tile case of Ranjit Singh v. President of India reported in 1971 (2) SLR 561, the High Court of Punjab and Haryana has also followed this principle and has observed that it is not every reduction in rank or reversion that will be treated as punishment, but it is so oniy when a government servant has a right to a post or to a rank either under the terms of the conract of employment, express or implied, or under the rules governing the conditions of his service, thc termination of th service of such servant or his reduction to a lower post is by itself and prima f�acie a punishment for it operates as aforfeiturc of his right to hold that post or that rank and to get other emolu ments and other benefits attached thercto.While making these observations the said High Court has clarified that if the servant has no right to the post, as where he is appointed to a post, permanent or telnoprary either on probation or onan officiating basis, and whose temporary service has not ripened into a quasi-permanent service, as defined in Temporary Service Rules, the tcriniiiation of his employment does not deprive him of any right and cannot therefore, by itself be a punishment.
Even this Court has held in Gurdev Singh v. Union of� India reported in 1974 (2) SLR 211, that a mistake crept in preparation of a seniority list should be rectified after complying with the rules of natural justice and giving an Opportunity to th Person concerned to show cause why it should not be rectified. Such, a view is taken even by a Division Bench of� this Court as will be apparent by reference to Dina Nath v. Director of Public Relations, Hinzaclial Pradesh reported in 1977 (1) SLR 567 .
It is apparent by reference to the above cited cases that the rule of natural justice is applicable only in those cases Wherein the pcrsoii aclvei�sely affected by the order of� reversion has a right to hold the higher post from which he is reverted. If no such right exist in his favour and if his promotion to the higiwr post is found to be void ab initio, then the ratio of the decisions above cited as regards the applicability of� the principle ol natural justice cannot be invo kecl. As observed by the Supreme Court in Union of India (UOI) and Another Vs. P.K. Roy and Others, the extent and application of the doctrine of natural justice cannot be imprisoned within the straight jacket of a rigid formula and, therefore, the said doctrine should be applied with reference to the facts am! peculiar circumstances of each case which is under the consideration of the Court. Now, speaking of the facts of the present case, we find that the impugned orders found at Annexures H to 0 have been passed on the view of the State Government that the previous confirmation of the services of the Petitioners as Assistants was void ab initio as it was against the rules. If this view of the State Government is found to be correct, then the question is how far the Petitioners are prejudiced for want of a show cause notice before these orders were issued. There was nothing which the Petitioners could have urged at the time when the impugned orders Annexures H to O were passed, and which they could not have urged in this writ petition to show that these orders were not void ab initio. The question involved was purely one of law and the interpretation of the relevant integration rules. If the Petitioners could have shown in this writ petition that the previous order of their confirmation on the post of Assistants was not void ab initio, the Petitioners would have easily succeeded in obtaining the required writ. But if they have not been able to show that the order of their confirmation as Assistants was not void ab initio, then the mere fact that before passing the impugned orders they were not served with a show cause notice would not justify this Court in setting aside these orders with a view to enable the authorities concerned to give the Petitioners a fresh opportunity to show cause, because, this would be an exercise in futility and indulgence in a technical formality which would not only prolong the agony of the Petitioners concerned, but would also result in further uncertainty in the administrative set up of the State Government Secretariat. The basic principle underlying the application of the rule of natural justice is to see that arbitrariness is avoided, and the persons adversely affected would have an opportunity to put up their point of view. If these basic requirements for the application of the rules of natural justice are found to have been substantially satisfied, and if it is found that no real injustice is done to the person concerned, by not complying with a particular formality, then this Court would surely be circumspect in exercising its discretionary jurisdiction under Article 226 of the Constitution. This jurisdiction, which is extraordinary in its character, is not meant to be exercised for the purpose of allowing the parties to have a mere play on technicalities. The real purpose of exercising this jurisdiction is to see that substantial justice prevails. That being the position, at the time of exercising its discretionary jurisdiction under Article 226 of the Constitution, the High Courts are not expected to pass the orders which on one hand are not capable of bringing any fruitful result securing substantial justice, but which, on the other hand, would tend to unsettle and distrub the public administration.
Since we are of the opinion that the previous order confirming these Petitioners on the post of Assistants was void ab initio, the Petitioners had no right on the post of Assistants which could be derived from this ab initlo void order. If they had no right to the post of Assistants, there is no question of the applicability of Article 311 of the Constitution.
In State of Punjab Vs. Jagdip Singh and Others, the Supreme Court has held that where a government servant has no right to a post or to a particular status, though an authority under the Government acting beyond its competence had purported to give that person a status which it was not entitled to give, he will not in law be deemed to have been validly appointed to the post or given the particular status. The facts of that case show that the Respondents therein were officiating Tehsildars in the erstwhile State of Pepsu. By notification, dated 23-10-1956, made by the Financial Commissioner, the Respondents were confirmed as Tehsildars with immediate effect. However, since no posts were available at that time, in which the Respondents could be confirmed, the Rajpramukh of Pepsu sanctioned the creation of supernumerary posts of Tehsildars on 24-10-1956 to provide liens for these Tehsildars. On 1-11-1956 the State of Pepsu was merged with the State of Punjab under the States Re-organisation Act, 1956. The newly formed government of Punjab thereafter reconsidered this position and issued a notification on 31-10-1957 deconfirming the Respondents. The Respondents challenged that action of the Government of Punjab and one of the ground of challenge was that the said action amounted to a reduction in rank and, therefore, cannot be taken without compliance with the requirement of Article 311(2) of the Constitution. Dealing with this ground, the Supreme Court held that the facts clearly revealed that the so-called confirmation of the Respondents by the Financial Commissioner of Pepsu was no confirmation at all and was thus invalid. The Supreme Court rejected the argument as regards the applicability of Article 311(2) of the Constitution by observing that the Respondents could not in law be regarded as holding the status of Tehsildars and, therefore, it cannot be said that they were reduced in rank by reason merely of the correction of an earlier error.
The above decision of the Supreme Court has full application to the facts of the present case. This decision of the Supreme Court has been followed by the High Court of Calcutta Patras Hansda v. Union of India reported in 1974 SLWR 327. The High Court of Rajasthan has also taken a similar view in Shanker Lal v. State of Rajasthan reported in 1978 (2) SLR 648 wherein it is held that the facts of the case Were so glaring that giving of an opportunity could serve no useful purpose and, therefore, there was no substantial failure of justice or any substantial injury.
As observed by Krishna Iyer J. in The Chairman, Board of Mining Examination and Chief Inspector of Mines and Another Vs. Ramjee, unnatural expansion of natural justice, without reference to administrative realities and other factors of a given case, can be exasperating. We find that the present dispute is hanging fire ever since the year 1963 and we further find that no useful purpose will be served at this stage to order the State Government to issue freshly a show cause notice before passing fresh orders in the nature of Annexures H to O. Under these circumstances, we do not see any justification in allowing the writ petition filed by S/Shri Bhatnagar and Ramji Dass on a technical ground that no show cause notice was issued before passing the orders found at Annexures H to O.
It was then contended that the seniority list found at Annexure ''G'' was passed after the approval of the Central Government as it related to the integraed servants of Punjab and Himachal Pradesh and, therefore, no change in that seniority list can be made without the approval of the Central Government. We do not see any substance in this contention because the change in the seniority list found in Annexure ''G'' will be merely consequential to the annulment of the order of confirmation passed previous to Annexures H to O.
It was lastly contended on behalf of the Petitioners that Annexure ''C'' of the writ petition No. 136 of 1975 shows that even other servants were promoted ad hoc on 1-7-1963, the date in which the Territorial Council was abolished, but since only the Petitioners were selected for deconfirmation and these other servants were not affected, there is a discrimination offending Article 16 of the Constitution. We find no substance in this contention because other servants mentioned in Annexure ''C'' do not belong to the class to which Petitioners Bhatnagar and Ramji Dass belong. The deconfirmation of these Petitioners was made by the impugned orders Anncxures H to O on the ground that they could not have been promoted under the rules in the year 1963 and, therefore, could not have claimed equation on the post of Assistants in the State Secretariat. Other persons mentioned in the list Annexure ''C'' do not belong to such a category. Therefore, there is no substance in this contention.
The result of this discussion is that the Civil Writ Petition No. 136 of 1975 filed by S/Shri Bhatnagar and Ramji Dass fails and is, therefore, dismissed. Looking to the peculiar facts of thus case, there shall be no order as to costs.
So far as the writ petition filed by Shri O.P. Gupta bearing No. 149 of 1978, is concerned, the grievance of this Petitioner was fully satisfied when the State Government passed the orders Annexures H to O which are impugned orders in the writ petition filed by S/Shri Bhatnagar and Ramji Dass. Petitioner, O.P. Gupta, however, wants that he ought to have been promoted as Assistant by the Territorial Council when the said Council gave ad hoc promotion to S/Shri Bhatnagar and Ramji Dass on 25-6-1963. For this purpose he puts reliance upon the decision of the Central Government dated 21-9-1968 whereby the said Government decided that Ramji Dass ought not to have been promoted and should, therefore, be reverted. The contention of Shri Gupta that he should be treated to have been promoted as from 25-6-1963 by the Territorial Council is totally devoid of merits. It is true that he was senior to Ramji Dass, but that does not mean that he would have necessarily been promoted even if the formula of seniority-cum-merit was applied. There is nothing in the Central Government decision dated 21-9-1968 to show that the Central Government had recommended the promotion of O.P. Gupta from the back date of 25-6-1963. The claim of this Petitioner that he was senior to Ramji Dass has been completely satisfied by the orders Annexures H to O of writ petition No. 136 of 1975. The learned Advocate of this Petitioner also informs us that Shri O.P. Gupta has been given five increments from the back date. Under the circumstances this Petitioner had absolutely no cause to file this writ petition. It is found that he has unnecessarily dragged Respondents Nos. 5 to 85 in this writ petition. These Respondents are even otherwise senior to him, but the Petitioner claims seniority over them on the ground that he should be declared to have been appointed as Assistant in the month of June, 1963. This prayer of the Petitioner is, on the face of it, absurd. Under the circumstances, it is found that the Petitioner, O.P. Gupta had no cause of action after the State Government passed the orders Annexures H to O of writ petition No. 136 of 1975. From the record of the case we find that on account of the stay order of this Court in C.W.P. No. 136 of 1975 the Government made no change in the assignment of seniority given to S/Shri Bhatnagar and Ramji Dass, with the result that the selection grade was worked out keeping their places in the seniority list as they were. Since these writ petitions are now finally disposed of, the Government shall now arrange the seniority list afresh and if necessary shall pass fresh order as regards the grant of selection grades. That being the situation, the writ petition filed by Shri O.P. Gupta should be dismissed. The same is, therefore, dismissed and the rule issued therein discharged with the order that this Petitioner shall bear the costs of Respondents 1 and 3 in one set to be assessed at Rs. 200 and of Respondents 4 to 85 to be assessed in one set at Rs. 300. Both the writ petitions are accordingly disposed of.