Sarvshri M.P. Vaidya etc. vs The Union of India (UOI)

Chet Ram Thakur, J.—By this writ petition the three Petitioners, who were the Executive Engineers of Multi-Purpose Project and Power Department of Himachal Pradesh, have prayed for quashing the orders, Anncxures E-1 and E-2, the allocation of Respondents 3 to 7, seniority list, Annexure F-1, and the promotion of the Respondents 3 to 7, vide Annexures G, G-1 and G-2. Further, it has been prayed for issue of a direction to Respondents 1 and 2 to delete the names of Respondents 4 to 7 from the lists of allocation to the Himachal Pradesh M.P.P. and Power Department and to allocate them in the department of P.W.D. (B&R and Irrigation) and in any case to declare the Respondents 3 to 7 as junior to the Petitioners 1 to 3 and to direct Respondent No. 2 to assign them positions in the joint seniority list below Petitioners 1 to 3 at their respective places, and further after quashing the promotion orders, Annexures G, G-1 and G-2, Respondent 9 or any other Respondent be directed to consider the case of the Petitioners for promotion according to the principle of seniority-cum-merit with effect from the date their juniors, Respondents 3, 4 and 5 have been promoted. Further, it was prayed that the action of Respondent No. 9 in taking Respondents 4 to 7 in the service of the Board and the orders detailed in Annexures M to M-4 may be ordered to be quashed and Respondent No. 9 be restrained from absorbing them in the service of the Board permanently and be restrained from giving them the benefit of service rendered in the department of M.P.P. and Power.

The case of the Petitioners is as follows:

The Petitioners 1 and 2 prior to their absorption in the M.P.P. and Power Department were the employees in the Public Works Department (B&R), working as Executive Engineers and Petitioner No. 3 was employed as Executive Engineer in M.P.P. and Power Department of Himachal Pradesh. The Petitioner No. 1 was appointed as Executive Engineer on 8th August, 1963, the Petitioner No. 2 was appointed on 19th March, 1964 and the Petitioner No. 3 was appointed Executive Engineer on 25th August, 1964. Till June, 1968, the Petitioners No. 1 and 2 were on deputation when they were permanently transferred to M.P.P. and Power Department. The Respondents 3 to 7 were admittedly employed in the P.W.D. (Irrigation Branch of the erstwhile State of Punjab) where they had been promoted from the rank of Assistant Engineers in Punjab Service of Engineers Class II to the rank of Executive Engineers (Senior scale) in Class I Service with effect from 1st January, 1965. Prior to that they had also been given chance to officiate as Executive Engineers against certain ex-cadre posts which appointment was of a purely temporary nature conferring upon the officers no right to claim seniority. With effect from 1st November, 1966, Shri S.R. Shah, Respondent No. 3 was provisionally allocated to the Union territory of Himachal Pradesh and was absorbed in the Public Works Department of that administration. He was absorbed on final allocation to the Union territory of Himachal Pradesh in the department of Himachal Pradesh Public Works Department, later the said Respondent exercised option for permanent transfer to the department of M.P.P. and Power, which transfer was effected in June, 1968. Respondents 4, 5, 6 and 7 were provisionally allocated to the State of Punjab against which allocation none of them except Respondent No. 4, had represented. His representation for changing the allocation from Punjab to Haryana or Himachal Pradesh was also rejected. This resulted into final allocation of the aforesaid Respondents to the State of Punjab itself. The Punjab State Electricity Board established u/s 3 of the Electricity (Supply) Act, 1948, continued functioning as a composite Board for the State of Punjab and Haryana even after 1st November, 1966, and its employees also remained and discharged duties as the employees of the composite Board till 1st May, 1967, when the Board was dissolved. In its place new Boards were constituted for the States of Punjab and Haryana with effect from 2nd May, 1967. The employees of the composite Board were allocated to these two States as well as to the Union territory of Himachal Pradesh. The composite Punjab State Electricity Board in addition to the operational and functional activities of the Board itself was also running under its direct supervision and control three power projects, known as, (1) Upper Bari Doab Canal Power Project, Madhopur, (2) Thermal Station, Faridabad (Haryana) and (3) Uhl Hydel Project, Joginder Nagar (Himachal Pradesh), commonly known as the Bassi Project. With the dissolution of the Board, the Power Project at Madhopur was transferred to the State of Punjab, Power Project of Faridabad was transferred to the State of Haryana and the last project was transferred to the Union territory of Himachal Pradesh but due to the absence of a statutory Electricity Board established in the Union territory of Himachal Pradesh this project was transferred to the M.P.P. and Power Department of the Himachal Pradesh. Prior to April, 1964, the Public Works Department of the Union territory of Himachal Pradesh had four branches, namely (i) Building and Road, (ii) Irrigation, (iii) Public Health and (iv) Electricity (Generation and Distribution). From April, 1964, a new department known as M.P.P. and Power Department was created for handling the Electricity (Generation and Distribution) and Flood Control. With the creation of the M.P.P. and Power Department, all the employees of the Electricity Branch of the Public Works Department of Himachal Pradesh were transferred and absorbed in the newly created department of M.P.P. and Power, with effect from 21st April, 1964. Even after the creation of the department the irrigation works still remained with the Public Works Department of Himachal Pradesh. With the transfer of the Bassi Project to Himachal Pradesh on the dissolution of the composite Punjab State Electricity Board with effect from 1st May, 1967, the M.P.P. and Power Department became the successor of the Punjab State Electricity Board for the completion, running and maintenance of the project. As the employees working and engaged in various works on the Bassi Project immediately before the 1st of May, 1967, belonged to the composite Punjab State Electricity Board, they remained with the Punjab State Electricity Board and were not allocated to the State of Himachal Pradesh. In order to avoid sudden dislocation in the work, the Himachal Pradesh Administration made a request to the Punjab Irrigation Department to depute certain technical persnonel for a limited period to work on their existing terms and condition at the Bassi Project. But instead of deputing the existing personnel already employed at Bassi project on deputation with the composite Punjab State Electricity Board to continue working on the project, the Punjab Irrigation Department availed the opportunity of allocating some of its surplus staff to the territory of Himachal Pradesh, even though the allocation of service u/s 82 of the Punjab Re-organisation Act had already become final which allocation could be changed with the approval of the Government of India only in cases of some grave hardship and that too on the acceptance of representation of the affected person. To achieve this object, the Punjab Irrigation Department invited options from its personnel who were desirous of being allocated to Himachal Pradesh which action was wholly illegal and without jurisdiction inasmuch as the allocation had become final after the disposal of the representations, if any, received from the aggrieved personnel. Further, the options, if necessary, were to be invited only from the personnel already engaged on deputation in the execution of works at the Bassi Project prior to the re-organisation of the State, and not from the employees of the entire Irrigation Department of the State of Punjab. As a result of this invitation, Respondents 4 to 7, even though none of them had ever worked on the Bassi Project nor was any of them an employee of the Punjab State Electricity Board or even recruited especially for that project, were allocated to the Union territory of Himachal Pradesh and were appointed directly to the cadre of the M.P.P. and Power Department. Not only that even before their allocation to Himachal Pradesh the Punjab Government Irrigation Department had actually passed orders of their postings to the Uhl Hydel Project Bassi, Jogindcr Nagar, though it had no jurisdiction to issue such order as the project was no longer under the territorial jurisdiction or administrative control of the Punjab Government.

On 1st April, 1970, the Chief Engineer of M.P.P. and Power Department of Himaehal Pradesh prepared the joint seniority list of Executive Engineers Class I (Senior Scale) indicating the position as it stood on the appointed day, i.e., 1st November, 1966. In this joint seniority list (copy Annexure F) Respondent No. 3 who had been allocated and absorbed earlier is placed at serial No. 1 and Respondents 4 to 7 are shown at serial Nos. 2, 3, 4 and 7 respectively. The Petitioners have been placed in the list at serial Nos. 6, 8 and 10 respectively. They represented against this but no reply was given to them and it appeared that their representations had been rejected as the provisional seniority list had been made final on 22nd January, 1971, and in the final seniority list the parties stand in the same position as shown in the provisional list. Not only that Sarvshri S.R. Shall, M.C. Tewari and Narinder Nath have been placed senior to the Petitioners but they have been promoted to the post of Superintending Engineers on 25th July, 1967, 12th August, 1970, and 9th November, 1970, respectively and which promotions are bad in law and arbitrary as while making these promotions the claims of the Petitioners were not considered. The Petitioners made their representations against the allocation of Respondents 4 to 7 to the Union territory of Himachal Pradesh, their absorption and integration in the M.P.P. and Power Department and against the seniority position assigned to them and the consequential benefit as well as their promotions to the posts of Superintending Engineers. These representations have been kept pending by the authorities and till to-day no decision whatsoever one way or the other has been conveyed to the Petitioners.

During the pendency of the writ petition, on the 24th August, 1971, the M.P.P. and Power Department was ordered to be abolished (Annexure J) with effect from 31st August, 1971. Consequent to that the services of the Petitioners and Respondents 3 to 7 were ordered to be placed at the disposal of the freshly constituted Himachal Pradesh State Electricity Board on foreign service with effect from 1st September, 1971, for a maximum period of four months, (vide Annexure K). After the expiry of four months their services were terminated and the Petitioners and the Respondents agreed to serve the Board on the assurance being given by the Board that incoming employees'' rights will be fully safeguarded in respect of pension, gratuity, leave and other cognate matters and for giving them the benefit of service under the Himachal Pradesh Government (copy Annexure L). The Petitioners and the Respondents 3 to 7 have been taken into service by the Board and the Board wrongly assumed the Respondents 3 to 7 as validly allocated to the Union territory of Himachal Pradesh and later validly absorbed in the M.P.P. and Power Department. The orders taking the Respondents 3 to 7 in service of the Board, detailed in Annexures M-1 to M-3, are illegal as they have been passed on wrong assumptions.

The grounds agitated for quashing the orders are that as the employees of existing State of Punjab employed in the Irrigation Department had been allocated to the Irrigation Branch of the Himachal Pradesh Public Works Department, the act of allocation was complete. Thereafter neither the Central Government nor the Punjab Government or the Advisory Committee or the Chief Secretaries Committee had jurisdiction to allocate the employees of the erstwhile State of Punjab en bloc to Himachal Pradesh and that the said powers stood exhausted once the cadre to cadre allocation of all employees including the Punjab Public Works Department Irrigation Branch employees had taken place. Assuming that certain personnel belonging to the composite Punjab State Electricity Board were to be distributed and allocated to the Union territory of Himachal Pradesh as a result of the dissolution of the composite Board with effect from 1st May, 1967, it was the committee headed by Shri Nawab Singh, Chairman of the composite Punjab State Electricity Board, which had to take the decision regarding the allocation of the Board''s personnel and not any other agency. The impugned allocations were not made as required and authorised by the Government of India. Moreover, the allocations were made not of the employees of the Board but of the employees of the Punjab Irrigation Department who in fact stood permanently allocated to the State of Punjab. Consequently, the impugned decision of the allocation of Respondents 4 to 7 to the Union territory of Himachal Pradesh was wholly without jurisdiction and liable to be quashed. That the Central Government mechanically adopted the recommendations of the Chief Secretaries Committee while passing the impugned order. As a matter of fact, the impugned allocations were in the nature of re-allocation of the various employees who had been finally allocated to the State of Punjab. The provisional allocations of Respondents 4 to 7 became final with their non-submission of any representation against the same and with the rejection of the representation of Shri Tewari. If at any later stage due to certain administrative exigency, the Government of India wanted to modify the allocation it was imperative for them to afford an opportunity and issue notice to the affected personnel of the State to which the personnel were sought to be allocated. This was inherent in the matter and a basic requirement of the principles of natural justice as the rights of the persons were going to be vitally affected by further allocation of the personnel from one State to another. Further, that the allocation of Respondents 4 to 7 was illegal inasmuch as the erstwhile Union territory of Himachal Pradesh could not be treated as a successor State within the meaning of Section 82 of the Punjab Re-organisation Act. Further, the allocation of the employees of the existing State of Punjab was to be made to the territory of Himachal Pradesh and not to a specific department thereof. The jurisdiction and duties of the Allocation Committees, whether departmental or Chief Secretaries Committee or for that matter the Central Government came to an end with the notification of the names of the employees from the existing State of Punjab to the territory of Himachal Pradesh. In fact the employees coming from the Punjab (P.W.D.) Irrigation Branch were to be absorbed in the corresponding department, viz., P.W.D. and not to the M.P.P. and Power Department, which in fact was a corresponding or successor unit of the composite Punjab State Electricity Board, and as such the order of absorption of Respondents 4 to 7 to the M.P.P. and Power Department is bad in law and liable to be quashed. The seniority list, Annexure F-1, in so far as it assigns places to Respondents 3, 4, 5, 6 and 7 is also bad in law inasmuch as the allocates have been appointed as Executive Engineers in regular capacity in the Punjab Service of Engineers Class 1 only with effect from 1st January, 1965, and have been placed senior to the Petitioners who have been appointed and working in the former territory of Himachal Pradesh in Class I Service much earlier to that date and as such the seniority list is liable to be struck down.

Further, the service of the Respondents 3 to 7 prior to 1st January, 1965, was only stop-gap or fortuitous and as such should not have been taken into account in determination of their seniority. Their ad hoc or stop-gap arrangement prior to their regular appointment on 1st January, 1965, could not confer upon them any right to claim the benefit of that service towards determination of their seniority. The Division Bench of the Punjab and Haryana High Court had already quashed the selection and the appointment of number of persons including Respondents 3 to 7 made on 8th September, 1966, by the Screening Committee constituted under Rule 8 of the Punjab Service of Engineers Class I Rules, 1964, which judgment has further been followed by a single Judge of the Punjab and Haryana High Court in a later case while setting aside the appointment of the persons included in that notification, the appointment of Respondents 3 to 7 to the Punjab Service of Engineers Class I as Executive Engineers Class I with effect from 1st January, 1965, stand automatically set aside. The necessary effect of the aforesaid decision was that Respondents 4 to 7 stood reverted as Assistant Engineers Glass 11/Temporary Engineer while Respondent No. 3 was relegated to the status of Assistant Executive Engineer, PSE I (Junior Scale). The Respondent No. 3 could not retain even the last referred status as his appointment as such has also been quashed by the Punjab and Haryana High Court with the result that he also stands reverted as Assistant Engineer Class II. Consequently the seniority position assigned to Respondents 4 to 7 in the impugned final seniority list deserves to be reviewed in the light of the aforesaid judgments. That the promotion of Respondents 3, 4 and 5 from the rank of Executive Engineers to the rank of Superintending Engineers are wholly illegal and arbitrary. The Petitioners have not been considered for promotion to the rank of Superintending Engineers along with the Respondents 3 to 7 at the time when their respective orders were issued even though the Petitioners had put in more years of continuous regular Class I Service as Executive Engineers as compared to Respondents 3 to 7. This was a clear violation of Article 16 of the Constitution of India and the instructions and rules of the Government of India.

From the averments of the Petitioners, four points, namely: (1) Allocation, (2) Absorption, (3) Seniority, and (4) Promotion, emerge for consideration of the Court.

First, I will take the point of allocation. The Union of India did not file any return. However, the State of Himachal Pradesh filed its return controverting the allegations and averments made by the Petitioners.

It has been argued by the learned Counsel for the Petitioners that the allotment order is bad inasmuch as it made the allotment to the Union territory of Himachal Pradesh which was not a successor State. The allotment orders are E-1 and E-2. The first order is dated 13th August, 1968, from the Chief Secretary to the Government of Punjab forwarding therewith the letter of the Government of India, Ministry of Home Affairs, communicating the orders of the Central Government making final allocation relating to the Irrigation Department. This allotment order reads as.

In exercise of the powers conferred by sub-Clause (2) of Section 82 of the Punjab Re-organisation Act, 1966 (31 of 1966), the Central Government hereby determine that all persons belonging to the Irrigation Department except the Sectional Officers who are required provisionally to serve in connection with the affairs of the State of Punjab or the State of Haryana or the Union territory of Himachal Pradesh or the Union territory of Chandigarh, in the Government of India, Ministry of Home Affairs No. 22/6 (4)/66-SR (S), dated 17-10-1966 shall be deemed to have been finally allocated to the State of Punjab or as the case may be, the State of Haryana or the Union territory of Himachal Pradesh or the Union territory of Chandigarh, with effect from the 1st November, 1966.

Therefore, this order shows that the allotments were made to the Union territory of Himachal Pradesh. E-2 is another order, dated 3-3-1969, whereby the persons serving in the Irrigation Department, who were required provisionally to serve in connection with the affairs of the State of Punjab, or the State of Haryana or the Union territory of Himachal Pradesh or the Union territory of Chandigarh by the Government of India, Ministry of Home Affairs letter No. 22/6 (4)/66-SR (S), dated the 17th October, 1966, were finally allocated to the State of Punjab or Haryana or the Union territories of Himachal Pradesh or Chandigarh with effect from 1-11-1966.

Successor State'' has been defined in section 2(m) of the Punjab Re-organisation Act, 1966, (hereinafter to be called the Act) as:

(m) ''successor State'', in relation to the existing State of Punjab, means the State of Punjab or Haryana and includes also the Union in relation to the Union territory of Chandigarh and the transferred territory;

And "transferred territory" has been defined u/s 2(n) of the Act as:

(n) ''transferred territory'' means the territory which on the appointed clay is transferred from the existing State of Punjab to the Union territory of Himachal Pradesh.

The submission made by the Petitioners'' learned Counsel is that the allocation should have been made to the Union of India instead of the Union territory of Himachal Pradesh and, therefore, this allocation is bad and reliance is placed on Punjab State through the Collector, Kangra v. Shri Joginder Nath 1971 H.L.R. 52, and one unreported case of Punjab and Haryana High Court, titled Baru Singh v. State of Haryana. The former authority lays down which is the successor State in relation to the territory transferred to the Union territory of Himachal Pradesh, whereas the other authority is unreported and the same has not been made available to us, therefore, it is difficult to say as to whether it is applicable or not. This definition of a ''successor State'' is not exhaustive. It has got to be read in conjunction with Section 82(1), according to which every person, who before the appointed day is serving in connection with the affairs of the existing State of Punjab shall on and from that date continue to serve in connection with the affairs of the State of Punjab unless he is required by general or special order of the Central Government, to serve provisionally in connection with the affairs of any other successor State (emphasis mine). In fact the affairs of the Union territory of Himachal Pradesh are also the affairs of the Union of India. Any allocation made to the territory of Himachal Pradesh will also be an allocation to serve in connection with the affairs of the Union of India, as would be evident from Jai Chand v. Union of India 1969 S.L.R. 386 and Durga Dass v. Union of India 1969 S.L.R. 278. These authorities lay down that the affairs of Himachal Pradesh are the affairs of the Union of India.

It will also be noticed that when a Government servant is allotted to the Union territory of Himachal Pradesh, he is allotted to serve in the Himachal Pradesh Administration. That Administration administers the entire Union territory, including the areas transferred under the Punjab Re-organisation Act, and the administration is carried on for the President. Reference may be made to Article 239 of the Constitution. Therefore, when a Government servant is allotted to the Union territory of Himachal Pradesh, he is in law allotted to the Union of India, that is to say, the "successor State". Therefore, the contention of the Petitioners that the allocation was invalid not having been made specifically to the Union of India as the successor of the State of Punjab in relation to the affairs of the Union territory of Himachal Pradesh is not tenable.

The further submission made is that at the time of division and allocation of the services the employees in the receiving State or for the matter of that the Petitioners were not afforded any opportunity for representation against the allocations and that the employees in the receiving State are affected both by the division and integration. In my opinion, the submission that the employees in the receiving State have a right to represent at the time of division and allocation of the services is a matter to which such employees cannot have any objection. The employees of the receiving State cannot be said to be aggrieved because of allocation of persons from the reorganised State. The scope of the expression "a person aggrieved" fell to be considered in Adi Pherozshah Gandhi Vs. H.M. Seervai, Advocate General of Maharashtra, Bombay, it was held that:

the mere fact that an order is wrongly made does not of itself give a grievance to a person not otherwise aggrieved.

Further that:

a person deprived of the fruits of litigation which he had instituted in the hope for them, is a person aggrieved. Similarly, a creditor who did not wish an adjudication order to be made was held not to be a ''person aggrieved''.

Further it was observed on the basis of Re-Woods; Ex. P. Ditton, (1879) 40 LT 297 Cotton L.J. that:

even so the person must be aggrieved by the very order and not by any of the consequences that ensue.

Further, in Re-Riviere''s Trade Mark (1884) 26 CH. D. 48, the observations of Lord Selborne were quoted:

...it must be legal grievance, it must not be a stet pro ratione voluntas; the Applicant must not come merely saying ''I do not like this thing to be done'', it must be shown that it tends to his injury, or to his damage, in the legal sense of the word.

And in the final analysis it was observed by their Lordships that:

any person who feels disappointed with the result of the case is not ''a person aggrieved''. He must be disappointed of a benefit which he would have received if the order had gone the other way. The order must cause him a legal grievance by wrongfully depriving him of something. It is no doubt a legal grievance and not a grievance about material matters but his legal grievance must be a tendency to injure him. That the order is wrong or that it acquits someone who he thinks ought to be convicted does not by itself give rise to a legal grievance.

I am of the view that the Petitioners are not persons aggrieved so as to have a right of representation or to afford them an opportunity to be heard at the time of division and allocation.

Sub-section (1) of Section 82 provides for provisional continuation of the erstwhile employees of the State of Punjab as from the appointed date till such time their services arc placed to serve provisionally in connection with the affairs of any other successor State. Sub-section (2) gives the power to the Central Government to determine the successor State after the appointed date to which every person referred to in Sub-section (1) shall be finally allotted for service. Sub-section (3) makes provision for final allocation of every employee to the successor State if he is not already serving therein. Subsection (4) provides for machinery for assisting the Central Government in the task of division and integration of the services and for ensuring fair and equitable treatment to all persons affected by the division and integration of the services. Upto the stage of division and allocation of the employees of one State to another State, the employees already serving in the receiving State are not affected. If at all, it is only the employees to be allocated who are affected. They may be entitled to represent that they should be allocated to a State other than the State to which it is proposed to allocate them. The employees already serving in the receiving State are affected only at the stage when the allocated employees are sought to be integrated in the service of which the existing employees are members. It will be noticed that the orders of allocation in the present case mention only the State to which the Respondents are allocated. In the process of integration a number of matters have to be considered, among them being the question of seniority in relation to the existing employees. It is here that the existing employees of the receiving State are affected. Therefore, it is quite manifest that the employees of the receiving State have absolutely no right of representation either with regard to division or allocation.

One of the contentions raised is that the moment cadre to cadre integration of services is made and representations are received and decided the power of the Central Government is exhausted. The submission is that excepting Shri M.C. Tewari Respondent No. 4 the others had not represented against their provisional allocation and, therefore, after the Central Government had decided the representation of Shri Tewari the Central Government had exhausted its powers with regard to allocation and on that basis it is contended that the allocations of the Respondents from Punjab and Haryana to Himachal Pradesh were bad. The Chief Secretary to the Punjab Government circulated a letter copy of which is O-1, with regard to the re-organisation of the State and the allocation of the personnel. This letter indicates the principles which are to be kept in view while making allocations of personnel. 0-4 is a note by the Chief Secretaries, Punjab and Haryana, laying down the procedure with regard to the examination of representations against the provisional allocations made by the Central Government in accordance with the provisions of Section 82(1) of the Act. 0-5 is a D.O. letter from the Under Secretary, P.W.D., Himachal Pradesh, to Shri Murti, Chief Engineer, Multi-Purpose Project and Power requesting him to go through the list of allocated officers along with the representations and to see which of them could be absorbed. There is no denying the fact that the Respondents other than Shri Tewari did not file their representations against their provisional allocations, but there is nothing in the Act which may indicate that the provisional allocations can be altered only on representations having been made and not otherwise. u/s 82 of the Act the Central Government is authorised to take steps for the division and the allocation of the services. Various stages, as already stated, have been laid down for the purpose of allocations; firstly, there are provisional allocations and thereafter the Central Government shall make final allocation of every employee to the successor State if he is not already serving therein. Therefore, it is manifest that the powers are vested in the Central Government to make the allocations provisional as well as final. It is not necessary that the Central Government may make the final allotment only on a representation having been made by an employee. It is also clear that the Respondents had at no stage been finally allocated to the State of Punjab. They were allocated to the State of Punjab provisionally u/s 82(1) of the Act and were finally allocated to Himachal Pradesh by the Central Government vide Annexure R-VI, dated 27th July, 1968, with effect from 1-11-1966. Further, the powers of the Government are quite wide and cannot be stated to have been exhausted as soon as it decided the representations. Central Government could change the allocations even after the decision of the representations provided a further opportunity was given to the persons affected by the decision of the Government.

The perusal of the various documents would reveal how the allocations of the present Respondents were made to Himachal Pradesh. On the transfer of the Bassi Hydel Project to Himachal Pradesh which was a major multi-purpose hydro-electric project, it was apprehended by the Himachal Pradesh Government that without transfer of competent personnel to man the affairs of this project it would not be possible to carry on with the project work. In view of this, admittedly, a request was made by the Secretary, M.P.P. and Power Department, to his counter-part in the Punjab Government not to withdraw the personnel already working on this project. The Punjab Government agreed to release some personnel having experience of work on project in concurrence with the Government of Himachal Pradesh. It may be stated here that these Respondents who belonged to the Irrigation Department of the Punjab Government were working on the relevant dates on the Uhl Hydel Project. Consequently, the Central Government finally allocated the services of Respondent 4 to 7 along with others to serve in connection with the affairs of Himachal Pradesh. It may further be stated that u/s 67(3) of the Act the Board (Punjab State Electricity Board) was to cease to function as from and was deemed to be dissolved on the 1st November, 1967, or such earlier date as the Central Government was by order to appoint. In view of this all those persons who were working on this project were allocated as soon as the decision to dissolve the Board was made and the allocations were made with a deemed date, i.e. 1-11-1966 as that was the appointed date for the allocation of the services.

The further contention is that the competent committee was the one presided over by Shri Nawab Singh which could make allocations of these Respondents and not the Chief Secretaries'' Committee. But this argument is belied by the document, Annexure S-3 itself. The committee of which Shri Nawab Singh was the Chairman was only charged with the functions to lay down the principles to be followed for allocation of staff and detailed allocation between Punjab, Haryana and Himachal Pradesh in respect of the transfer of the Punjab State Electricity Board and not of other persons, like the Respondents, who belonged to the Irrigation Department. It appears from the correspondence contained in Annexures S-4 to S-7 that due to the transfer of the Bassi Project to Himachal Pradesh the latter were feeling handicapped in the execution of the work for want of staff and, therefore, requests were made to the Central Water and Power Commission or to the Punjab Government to lend the services of some experienced persons. Vide Annexure S-7 the Secretary, M.P.P. and Power Department, submitted a note to the Minister in which he had pointed out-

We have earlier also requested the Secretary, I & P. Government of Punjab to issue necessary instructions that the present staff working on the Bassi Power Station may continue to work on the present terms on deputation, if required, the options of the staff may be called for.

From this correspondence it would, therefore, be amply clear that due to want of staff required for the execution of the Bassi Project, the Secretary, M.P.P. and Power, Himachal Pradesh had pointed out to the Minister that the staff already working on the Bassi Project may be allowed to continue or their options may be taken. It was in view of these facts that the allocations of the Respondents were made to the then Union territory of Himachal with effect from 1-11-1966. It is the requirement or the need of the employer which is to be taken into consideration while requisitioning or employing the services of any person. The Petitioners, for that matter, who themselves were loaned officers to the M.P.P. and Power Department could not object to the allocation of the Respondents to the M.P.P. and Power Department on the ground that they did not belong to this department and at best they could be absorbed in the Irrigation Department which was a non-existent department in Himachal Pradesh, and formed a part of the P.W.D or the M.P.P. and Power Department at that time.

The second point is that of absorption. The submission made by the Petitioners is that Respondents 4 to 7 had wrongly been absorbed in the M.P.P. and Power Department, it was not a successor of the Irrigation Branch and, if at all, the Himachal Pradesh Government could absorb them, it was in the Irrigation Department where they should have been absorbed.

Annexure 0-1 is a letter from the Chief Secretary to the Government of Punjab about the re-organisation and the allocation of personnel and the mode of allocation. From this letter it would appear that according to the policy decision the persons recruited for project or undertaking were required to go with the project or undertaking of the States/Union territory, but those serving in the project or if they belonged to the organised cadre they were to be divided. Annexure 0-2 is a letter from the Government of India, Ministry of Irrigation and Power, to Shri Murti, Secretary to Government of Himachal Pradesh, M.P.P. and Power Department, with regard to the allocation of officers and staff against the Bassi Project to Himachal Pradesh informing the latter that the allocation had been made on the basis of principles enclosed in Annexure 0-3. In fact, the allocation is the function of the Government and it is an administrative function which cannot be questioned by the employees of the receiving State. It is the Central Government which has been authorised by law to make allocations of the employees in accordance with the principles laid down by it. Therefore, this allocation made in accordance with those instructions cannot be questioned. However, the submission made by the Petitioners is that they (the Respondents) could not be absorbed in any other department except the one for which they had been recruited. It is not denied that in Himachal Pradesh there was no separate Irrigation Department. There were only two departments, one was the P.W.D. (Building and Roads) and the other was the M.P.P. and Power. The Petitioners themselves were recruited to the P.W.D. They were on deputation with the M.P.P. and Power and were absorbed completely in the M.P.P. and Power Department only in the year 1968 and till then they were employees of the P.W.D. The Respondents were also the employees of the Irrigation Department in Punjab but were working on the Bassi Project. On the transfer of the Bassi project to Himachal Pradesh, at the request of the Himachal Pradesh Administration, they were allocated to Himachal Pradesh against the staff for Bassi Project. As stated earlier, the Petitioners, who themselves on the date of allotment of the Respondents did not belong to the M.P.P. and Power Department, have got no locus standi to challenge the allocation and their consequent absorption in the M.P.P. and Power Department.

In view of the fact that I have held that the Petitioners have got no locus standi to question the absorption of the Respondents in the M.P.P. and Power Department it will not be necessary to comment upon the argument that the chances of promotion of the Petitioners due to wrong absorption of the Respondents have been marred or adversely affected. Moreover, chances of probation are not conditions of service, as is held in State of Mysore and Anr. v. G.N. Parohit and Ors. 1967 S.L.R. (S.C.) 753. Therefore, this absorption cannot be challenged.

Further, it has also been argued that there was violation of the instructions issued by the Central Government with regard to the allocation. This argument will not detain us for long because the instructions issued by the Government are only directory and not mandatory. One of the instructions, as contained in para 3 of Annexure 0-1, is that ''the following broad principles will be kept in view'', and that makes it all the more clear that these instructions are only general and are of directory nature. Para 3(b) of this annexure states that those recruited especially for the project and undertaking should go with the project or undertaking of the State/Union territory concerned, but those serving in the project, if they belonged to the reorganised cadre which are to be divided will be dealt with as under (c) below. Therefore, there is nothing wrong if the Respondents who were working on the Bassi Project although they belonged to the Irrigation Department which was a sister department, were allocated to the M.P.P. and Power Department and their absorption cannot be said to be wrong.

The third point is about seniority. The final integrated seniority list is F-1. According to this list Shri Shah is placed at No. 1, Shri M.C. Tewari at No. 2, Shri Narinder Nath at No. 3 and Shri Srikanthia at No. 4. The Petitioner Shri Vaidya is placed at No. 6, Shri V.M. Bajaj at No. 7, Shri H.L. Mehta Petitioner at No. 8 and Shri S.K. Sharma Petitioner at No. 10. In the year 1964 the Punjab Service of Engineers Class I Public Works Department (Irrigation Branch) Rules came into force. All these Respondents 3 to 7 were appointed Executive Engineers according to the notification A, dated 18th September, 1966, with effect from 1st November, 1965 (the date 1st January, 1966 as given appears to be wrong), in accordance with the rules. The submission made by the Petitioners'' learned Counsel is that by this act of the Central Government some benefit had been bestowed upon them from a prior date by indicating them as Executive Engineers, which is bad. According to him, the Petitioners are senior and the appointments of the Respondents being bad had already been set aside by the Punjab and Haryana High Court as on the date of allotment they were not working as Executive Engineers. According to the learned Counsel for the Petitioners their clients had been working in the Directorate of Himachal Pradesh in Class I service much earlier to 1st January, 1965, therefore, on that account, it is submitted that keeping in view the continuous length of service from the date of regular service, the impugned seniority list Annexure F-1 is liable to be struck down. Further that no uniform norm or criteria was followed while determining inter se seniority as shown in the joint seniority list, the whole action is arbitrary and not in accordance with law.

The totality of the submissions made by learned Counsel for the Petitioners is directed against the validity of the joint seniority list finalised by the Central Government u/s 82(4) of the Punjab Re-organisation Act. In my opinion, it is not open to this Court to enter into the merits of those submissions. It seems to me that it is not within the province of this Court to sit in judgment on the correctness of the seniority list on its merits. This Court has held in A.N. Bhoil v. The Union of India (Civil Writ Petition No. 70 of 1970 decided on June 28, 1973), that the correctness of a joint seniority list settled by the Central Government u/s 82(4) of the Act is not open to judicial scrutiny on its merits. All that the Government servant affected by Section 82 of the Act is entitled to make a representation against the proposed action of the Central Government u/s 82(2). He can claim that the proposed action does not assure him the fair and equitable treatment envisaged by Section 82(4). But he is not entitled to go to a court of law and challenge the correctness of the seniority list on the ground that he has not been assigned the seniority claimed by him and some other officer has been placed senior to him. Reference may be made to (i) Union of India v. G.R. Prabhavalkar and Ors. and (ii) W.H. Deshmukh and Ors. v. Gopal Ramchandra and Ors. 1973(1) SLR SC 1007. In this case it has been held as under:

The Central Government u/s 115 of the Act, has to determine the principles governing equation of posts and prepare a common gradation list by integration of services. To assist it in the task of integration of services and for a proper consideration of representations, the Central Government is empowered to establish Advisory Committees. The Central Government is bound to ensure a fair and equitable treatment to officers in the matter of integration of services and preparation of gradation lists. It has also to give a full and fair opportunity to the parties affected to make their representations; and the Central Government has also to give a proper consideration to those representations. So long as the Central Government has acted properly according to the provisions of the Act, we are of the view, that a court cannot go into the merits or otherwise of equation of posts which is a matter within the province of the Central Government.

Learned Counsel for the Petitioners has not been able to point out that the Petitioners were not afforded an opportunity of representing against the provisional seniority list or that the seniority list has been prepared on extraneous considerations. The seniority list, therefore, is unassailable. I am not satisfied that N. Subba Rrao etc. Vs. Union of India (UOI) and Others, on which learned Counsel for the Petitioners relies, is of any assistance to the Petitioners in the present case.

I would hold that the seniority list is final and cannot be challenged by the Petitioners on the grounds raised in this writ petition. This point is decided against the Petitioners.

The fourth point raised by the learned Counsel for the Petitioners is with regard to the promotions of the Respondents to the posts of Superintending Engineers. Shri S.R. Shah, was appointed on ad hoc basis as Superintending Engineer, Hydel Uhl, Construction Circle, Palampur, in the Department of M.P.P. and Power from the 25th July, 1967, for a period of three months in the first instance, vide Annexure G. Shri M.C. Tewari was appointed on ad hoc basis as Superintending Engineer in the same department with effect from 12th August, 1970, vide Annexure G-1. No specific period of the ad hoc appointment was mentioned in the order. Shri Narinder Nath was appointed as Superintending Engineer on deputation for a period of one year in the first instance with effect from the date of taking over, vide Annexure G-2, dated 2nd November, 1970. These ad hoc appointments were made when the Respondents were employed in the M.P.P. and Power Department of the Himachal Pradesh Government. They were absorbed subsequently in the Himachal Pradesh Electricity Board when that body was constituted, and it is clear from the terms upon which they were absorbed in the Board that the status enjoyed by them in the M.P.P. and Power Department in the Government was taken into account. Shri Srikanthia was appointed Superintending Engineer during his employment in the State Electricity Board and the appointment was made on an ad hoc basis, vide order dated 11th April, 1972. Learned Counsel for the Petitioners challenges the validity of these ad hoc appointments. As regards the ad hoc appointment of Shri Shah, Shri Tewari and Shri Narinder Nath, it is pointed out that the Government had issued instructions that ad hoc appointments which were likely to continue for more than three months should not be made but a Departmental Promotion Committee should be constituted and promotions made on the basis of its recommendations. The same contention was raised in regard to the ad hoc promotion of Shri Srikanthia in the State Electricity Board. So far as the first three Respondents are concerned, there is material on the record to bear out the submission of learned Counsel for the Petitioners that Government instructions regarding the constitution of a Departmental Promotion Committee existed. Our attention has not been drawn to the existence of any statutory rules governing ad hoc appointments and the constitution of a Departmental Promotion Committee where the appointments were likely to continue for more than three months. In the circumstances, it should be taken that the instructions issued by the Government in that regard were binding in law on the department concerned: See Sant Ram Sharma Vs. State of Rajasthan and Another, The terms on which the first three Respondents mentioned above were appointed as Superintending Engineers clearly show that there was need for compliance with the Government instructions and that a Departmental Promotion Committee should have been constituted as the circumstances indicated that the appointments were likely to continue for more than three months. Inasmuch as the appointments were made without the constitution of a Departmental Promotion Committee and not in accordance with the instructions of the Government mentioned above, the orders appointing the said Respondents as Superintending Engineers must be considered invalid. Consequently, having regard to the terms on which they were absorbed in the State Electricity Board it must further be held that they were not entitled to the status of Superintending Engineers in the Board. When the said three Respondents were considered for appointment as Superintending Engineers in the M.P.P. and Power Department of the Government, a Departmental Promotion Committee should have been constituted and the cases of the said Respondents for such appointment should have been considered by it. Along with those cases, the cases of the Petitioners should also have been considered. The Petitioners were entitled at that stage to have their cases for such appointment considered.

So far as the appointment of Shri Srikanthia is concerned, that was effected while he was employed in the State Electricity Board. It has not been shown to us that the instructions issued by the Government in regard to the constitution of a Departmental Promotion Committee where ad hoc appointments were likely to be made for more than three months were operative in the State Electricity Board at the time when Shri Srikanthia was appointed as Superintending Engineer. No material has been placed before us to indicate that those instructions were binding on the Board. Apart from the Government instructions, learned Counsel for the Petitioners has been unable to place before us any rules of the Board itself from which it can be inferred that when the appointment of Shri Srikanthia was made as Superintending Engineer, the cases of the Petitioners should also have been considered. The appointment was made on a purely ad hoc basis, and there is nothing to show that it was made mala fide and a mere camouflage for a regular appointment. It has been urged that by the ad hoc appointment of Shri Srikanthia without consideration of the Petitioners'' cases, the Petitioners'' rights under Articles 14 and 16 of the Constitution have been contravened. As to that, this Court has held in A.N. Bhoil (supra) that in a case where an ad hoc appointment is made bona fide, it cannot be said that the rights of a Government servant not so appointed have been contravened. Learned Counsel for the Petitioners relied on O.P. Gupta v. Municipal Corporation of Delhi 1973 (1) SLR 209. In that case, however, the facts were that ad hoc appointments were made from time to time, and the Petitioner in that case was repeatedly ignored. It seems from the facts set out in that case that the appointments could not be said to be truly ad hoc in nature.

Learned Counsel for the Respondents contended that the Petitioners were junior and were therefore not entitled to be considered, and only senior officers could be considered. It has not been shown that the cases of the Petitioners do not fall within the scope of the Government instructions requiring the constitution of a Departmental Promotion Committee mentioned above, and therefore this submission must fail. Reliance is also placed on a letter No. 3/32/58-Adm. I, dated 13th August, 1963, from the Central Water and Power Commission (Power Wing), Government of India, to the Chief Engineer, Himachal Pradesh Public Works Department, but it would appear that the latter merely refers to draft recruitment rules which were not yet finalised. The contents of the letter do not indicate that it was intended to be binding on the M.P.P. and Power Department. Consequently, the Respondents have failed to show that the Petitioners were not entitled to be considered for appointment as Superintending Engineers at the time when the Respondents mentioned above were so appointed.

In the result, the writ petition is allowed in so far as the appointments of the Respondents, Shri S.R. Shah, Shri M.C. Tcwari and Shri Narindcr Nath made on 25th July, 1967, 12th August, 1970, and 2nd November, 1970, are quashed. The Himachal Pradesh State Electricity Board is directed to give consequential effect to the quashing of those appointments in so far as it affects the status of those Respondents in the employment of the said Board. The State Government is directed to give effect to the instructions mentioned above concerning the constitution of a Departmental Promotion Committee which, while considering the cases of the aforesaid three Respondents will also consider the cases of the Petitioners when making recommendations for appointment as Superintending Engineers, and the appointments by the State Government will be made with reference to the dates on which aforesaid Respondents were appointed in an ad hoc capacity as Superintending Engineers. The remaining reliefs are refused. There is no order as to costs.

R.S. Pathak, C.J.

I agree.