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B.R. Tuli, J.—The Petitioner joined service in the erstwhile State of Nabha on April 16, 1940, as a Clerk. He was promoted to the post of Head Clerk on March 13, 1945 which post be held till September 1, 1948, on which date (he services of the eight princely States, which formed themselves into Patiala and East Punjab States Union, were integrated. On integration, the post of Head Clerk was equated with that of a Routine Clerk, with the result that the petitioner was appointed a Routine Clerk in the Pepsu Civil Secretariat. On September 1, 1950, the Pepsu Government decided that 75 per cent of the vacancies in the post of Assistant in the Secretariat should be filled up by direct recruitment through the Public Service Commission and the remaining 25 per cent should be filled up by promotion of deserving Routine Clerks. It was further decided that the senior most Routine Clerk should be promoted provided he was at least a Matriculate, had at least seven years'' clerical service to his credit and there were no serious adverse reports regarding him. The petitioner was promoted to officiate as an Assistant on July 27 I950, for a period of two months as a stopgap arrangement and while that officiation was going on, he was promoted to officiate as Assistant till further orders by an office order dated August 28, 1951. Along with him three more Routine Clerks were promoted to officiate as Assistants It has to he remembered at this stag'' that the officiating promotion of the petitioner was not against the quota of 25 per cent but on ad hoc basis because the decision to fill 25 per cent posts of Assistants by promotion from amongst the Routine Clerks taken on September 1, 1950.
The Pepsu Government invited applications though the Public Service Commission for the posts of Assistants as direct recruits and respondents 3, 4 and 5 were appointed as officiating Assistants, with effect from January 1, 1951, March 1. 1952. and March 4, 1952, respectively. The Pepsu Government thereafter framed the Pepsu Secretariat Service Recruitment, Probation, Punishment and Seniority Rules, 1952 (hereinafter referred to as the Rules) to govern the conditions of service of Routine Clerks Assistants, Superintendents and some other ministerial staff working in the various departments of the Pepsu Secretariat. These rules were framed by His Highness the Rajpramukh of Pepsu in exercise of the powers conferred m him by Article 309 of the Constitution of India, Rule 7 of the Rules provided-
Twenty-five per cent of the payment vacancies and temporary or officiating vacancies likely to become permanent of Assistants shall be filled by promotion from amongst the Routine Clerks in the Service in accordance with Rule 15, and seventy five per cent, by direct recruitment.
Rule 14 provided -
(a) All direct recruits to the Service small be treated on probation for a period of one year from the date on which they take up their duties. The period of probation may, in the discretion of the Home Department, be extended but in no case it shall in the aggregate exceed two years.
(b) Officiating service shall be reckoned as period spent on probation but no person, who is officiaitng in any appointment, shall, on the completion of not more than two years in the Service, be entitled to be confirmed until he is appointed against a permanent vacancy. Service spent on Probation to a corresponding or a higher post may be allowed to count towards the period of probation fixed under these rules.
(c) If the work or conduct of any person during his period of probation is, in the opinion of the Chief Secretary, not satisfactory, the Chief Secretary may dispense with his services or revert him to his former position if he had been appointed otherwise than by direct recruitment.
It is to be noted that no period of probation was provided for Assistants promoted from the rank of Routine Clerks. Rule 16 provided for the method of fixing seniority and ran as under:
Seniority in the different classes aid grades of the Service shall count from the date of confirmation in that class or grade of the Service. The following principles shall be followed in determining the seniority of persons confirmed on the same date:
(i) In the case of persons recruited by the public Service Commission according to their respective position on the merit list mentioned in Sub-rule (a) of rule is;
(ii) in other cases according to the respective position of the persons concerned in the lower grades from which they hive been promoted.
There is no provision made in this rule for fixing inter se seniority of the Assistants appointed as direct recruits and those appointed by pro-motion in case the confirmation takes place on the same date. The absence of this provision has led to the filing of the present petition.
By an order dated October 1, 1953, the petitioner was reverted to the post of Routine Clerk but was again promoted as officiating Assistant on October 5, 1953, He was again reverted as Routine Clerk on December 4, 1953, and was subsequently promoted as officiating Assistant on January 2, 1954. Respondents 3 to 5 continued working as officiating Assistants till they were confirmed by an order dated October 10, 1955, along with some other officiating Assistants The petitioner was confirmed as an Assistant along with eight other Assistants by an order dated February 7, 1955. These nine Assistants submitted a representation to the Government in which the following points were stressed:
That while the Assistants recruited through Public Service Commission have been confirmed under Home Department order dated October 10. 1955, the order of our confirmation has been issued on February 7, 1956 on the acceptance of our appeal.
That the orders of our confirmation have not been given effect to from 10.10.1955, the date on which the direct recruitees were confirmed.
That some of us were promoted to officiate in this cadre much before the direct recruitment of these persons and were thus entitled to be confirmed earlier in order to maintain our position in seniority.
That the revised pay scales have been given effect to from January 1, 1956 while the orders of our confirmation as Assistants, as they now stand, will take effect from February 7, 1966, depriving us of the benefit of the revised pay grades is normally given against the substantive post. Not to speak of any benefit in some cases, our pay in the revised grade is likely to be reduced unless our confirmation is given effect to retrospectively.
That this has never been the intention of the Government to place any Government employee in financial loss.
The prayer made was that "the orders of our confirmation may kindly be given effect to retrospectively and our seniority fixed in the ratio of (sic)." The Government accepted their representation and, by an order dated July 13, 1956, created nine supernumerary posts of Assistant in the standard scale effective from October 10, 1955 up to 6 2. 1986 in the Civil Secretariat and fixed the liens of the nine Assistants, including the petitioners, who had made the representation, against those posts with effect from October 10, 1955. With regard to the seniority, it was stated-
The seniority of the above persons vis-a-vis Public Service Commission candidates confirmed as Assistants vide Home Department order No. 436/Estt. dated 10th October, 1955 will be fixed according to the position as it stood on 10th October, 1955 in accordance with the provisions of Secretariat Service Recruitment, promotion and Seniority Rules, 1952.
The petitioner has stated that the order dated July 13, 1956 was passed on the recommendation of Shri A.N. Kashyap, the then Joint, Secretary, Home Affairs, Pepsu, leading as under:
The Confirmation of these persons was held up as posts for them had not yet been created. Since they were confirmed after 1st January, 1956, they are not getting benefit of the revised grades. This seems to he a hard case and it is suggested that they may be confirmed with effect from October 10, 1955, when the Public Service Commission recruits were confirmed, so that in seniority as well as in pay, they do not suffer. This case may be shown to F.D.
It is further stated that the matter was examined by the Chief Secretary also and he agreed with the Joint Secretary. The approval of the Finance Department was also obtained and it was in pursuance of these steps that the order dated July 13, 1966, was issued. The recommendation of Shri Kashyap, the agreement of the Chief Secretary to that recommendation and the approval of the Finance Department are not admitted by the respondents in their returns.
A provisional joint seniority list was prepared in which the petitioner was shown at serial No. 323 while respondents 3. 4 and 5 were shown at serial Nos. 926, 328 and 329 respectively. Objections were invited and then the final list was prepared in which respondents 3, 4 and 5 and the petitioner were shown at serial Nos. 291, 301, 302 and 309 respectively, This seniority list was prepared on the basis of the date of entry into service as Assistant and with regard to the petitioner the date was mentioned as January 2, 1954, because from that date his service as an Assistant was continuous while the service of respondents 3. 4 and 5 was continuous as Assistant with effect from the dates of their appointment on January 4. 1951, March 1, 1952, and March, 4. 1952, respectively. On the basis of this seniority list prepared by the State of Pepsu, the joint integration list was prepared in the State of Punjab after the merger In that list respondents 3 to 5 were shown senior to the petitioner. The petitioner made a representation to the Chief Secretary to the Government, Punjab, Chandigarh, on September 9, 1957, praying that-
my seniority in the parent State may kindly be refixed and the changed position be incorporated in the joint seniority list thus placing me above No. 279, Shri Harcharan Singh Dhillon.
On November 30, 1962, the petitioner was informed with reference to his representation dated August, 28, 1962, that-
the matter has been considered and it has been decided that the seniority of Sarvshri Bhagwati Persan Singh (petitioner) Durga Dass Sahgal, Nand Kishore and Harsaroop Singh, promoted Assistants, vis-a-vis direct recruits will be fixed above Sarvshri Harcharan Singh, Krishan Gopal Malia, Dev Inder and Moti Ram Garg respectively in the parent State (Pepsu) seniority list and that at serial Nos. 276-A, 277-A, 29/- A and 302-A in the joint seniority list of Assistants to Superintendents group respectively. Necessary modification in the list has been made accordingly.
The final gradation list of the Punjab Civil Secretariat, Assistant to Superintendent Group, was than issued by notification dated November 18, 1964, by the Governor of Punjab, in exercise of the powers conferred on him by the proviso to Article 30-f of the Constitution of India and in accordance with the decisions of the Government of India under the provisions of Section 115(5) of the States Re-organisation Act, 1956. In this, list, the petitioner and respondents 3, 4 and 5 were shown at serial No. 296, 300, 305 and 306, respectively. Against this gradation list, representations were filed by Krishan Gopal Walia and Ors. which were accepted on March 3, 1967 as a result of which the final gradation list was revised wherein respondents 3,4 and 5 and the petitioner were assigned serial Nos. 286-A, 292-A, 292-B and 296, respectively. This revised seniority list was circulated amongst the affected Assistants from serial Nos. 278 to 304 who were asked to make representations against the change, if they so desired, within a period of 15 days of the issue of the letter. In pursuance thereof, the petitioner made a representation against the change of his place on the joint seniority list on March 15, 1967, and on March 23, 1867 asked for a copy of the representation made by Krishan Gopal Walia and Ors. which led to the change in his position in the joint seniority list. The petitioner was informed by letter dated November 21, 1969, that the representation made by Krishan Gopal Walia and Ors. could not be supplied. He was allowed 15 days time to file his representation, if he so desired. The petitioner then submitted his representation on December 18, 1967. The final order was passed on June 25, 1970, reading as under:
In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India and in accordance with the decisions of the Government of India under the provisions of Section 115(5) of the States Re-organisation Act. 1953 (Central Act 31 of 1956), the Governor of Punjab is pleased to make the following amendment in the final gradation list of the Punjab Civil Secretariat Assistant to Superintendent Group as notified vide Pun jib Government Integration Department No. 4425-Integ. 64/780, dated the 18th November, 1964:
Amendment
The seniority of Sarvshri Harcharan Singh Dhillon, Krishan Gopal Walia. Sat Pal Dhir, Dev lnder and Khem Chand Goel, appearing at serial No. 297, 299, 300, 305 and 306 of the above mentioned final gradation list is fixed at serial Nos. 277-A, 277-B, 286-A, 292-A aid 292-B respectively.
The result was that respondents 3 to 5 were made senior to the petitioner- The petitioners then filed the present petition challenging the order dated June 25, 1970, and has prayed that this order should be quashed.
Returns have been filed by respondents 1, 2 and 3 to 5, to which replications have been filed by the petitioner. Reply to the replication has also been filed by respondents 3 to 5.
The first point argued by the Learned Counsel for the petitioner is that the final gradation list issued on 18th November, 1964, could not be reviewed by the Governor of Punjab nor by the Government of India u/s 115(5) of the States Re-organisation Act, 1956, The plea put forward is that the order fixing the seniority was a quasi-judicial one which had been passed after taking into consideration the representations made by various officials against the provisional joint seniority list and, therefore was not open to review. Reliance is placed on the judgment of a Full Bench of this Court in Deep Chand and Anr. v. Additional Director, Consolidation of Holdings Punjab and Anr. (1964) 66 P.L.R. 318. The Learned Counsel for the respondents has submitted that the order passed on 18th November, 1964, was an administrative order and not a quasi-judicial one and, therefore, it could be reviewed or revised by the Central Government u/s 115 (5) of the States Re-organisation Act, particularly because the representations of the officials were not made available to others whom those representations affected, and, therefore, they had the right to make the representation. Narula, J., has recently held in Om Parkash Malhotra v. State of Punjab C.W. 2204 of 1969 (C.W. 2204 of 1969, decided on 13th January, 1971) that-
the decision fixing the seniority of Government servants is, in my opinion, a purely administrative matter and not judicial or quasi-judicial or amenable to a writ of certiorari.
I respectfully agree with the learned Judge that the preparation of the joint seniority list of integrated Services was an administrative function to be performed by the Union of India u/s 115 (5) of the States Reorganisation net and it could be revised when representations were made by the affected officials. It has to be borne in mind that after the first provisional joint seniority list was prepared, representations were invited After consideration of those representations, the gradation list was issued on 18th November, 1964. Against that list, representations were again filed which were considered and another revised joint seniority list was prepared and circulated amongst the affected officials on 3rd March, 1967, in response to which the petitioner filed his representation. After considering his representation, the final gradation list was issued on 25th June, 1970. The petitioner, having taken the chance of getting a decision from the Government in his favour, cannot urge that the final gradation list issued on 28th June. 1970, is without jurisdiction 1, therefore, hold that there is no merit in the submission made by the Learned Counsel for the petitioner.
The only point on merits to be considered is whether the seniority of the petitioner vis-a-vis respondents 3 to 5 has been correctly fixed or not. In the order dated l3th July, 1956, whereunder name supernumerary posts were created it was directed that the seniority would be determined in accordance with the Rules as in force on Kith October, 1955. I have already said above that Rule 16 did not provide how the inter se seniority was to be fixed between a direct recruit and a promote both confirmed on the same date. Respondents 3 to 5 pleaded in their return that the matter was to be determined in accordance with the provisions of Ijlas-i-Khas order dated 18th February, 1946, as amended on 31st July. 1946 A copy of that Ijlas-i-Khas Order has been filed by the said respondents with their return wherein the first clause reads:
The new comer will rank senior to all State servants in the new office in same grade as his own grade.
According to this clause, respondents 3 to 5 submitted that they were entitled to seniority over the petitioner because they joined service as direct recruits after him. This clause, however, has not been correctly reproduced. The correct clause reads as under:
The new comer will rank senior to all State servants in the new office in grades lower than his own grade.
It is thus evident that respondent''s 3 to 5 wrongly relied on the Ijlas i-Khas Order, the copy of which produced by them does not state the clause correctly. The petitioner never urged in hi- petition that the seniority had to be fixed according to the Ijlas-i-Khas Order of 1946, but, at the time of arguments, the Learned Counsel for the petitioner has venemently argued that the seniority of the petitioner vis-a-vis respondents 3 to 5 had to be fixed in accordance with the provisions of that. Ijlas-i-Khas order. In my opinion, in view of the order dated July 18, 1956, that the seniority should be determined in accordance with the Rules as on October 10, 1955, the provisions of the Ijlas-i-Khas Order did not apply. In the preamble to the Ijlas i- Khas Order it is stated that the Rule? stated in that Order would apply subject to any specific departmental rules or orders on the subject. That order, therefore, excluded the application of the Ijlas-i-Khas order. Under the Rules, there is no provision with regard to this matter as pointed out above and, therefore the general principle should apply that the seniority is to be determined according to the length of continuous service in the rank which was also prescribed all the rule for the integration of the services of the two States of Punjab and Pepsu by the Punjab Services Integration Rules, 1957. It is also an equitable rule to apply, particularly because the Services of the Punjab State were Co be integrated with the Services of the Pepsu State on the basis of the continuous length of service. If the petitioner is placed above respondents 3 to 5, and his date of entry into Service as Assistant is taken as January 2, 1954, then respondents 3 to 5 would have to rank below the Punjab Assistants who had been employed up to January 2, 1954, in spite of the fact that they had been appointed in 1951 and 1952, which would be highly inequitable Under the circumstances I am of the opinion that the seniority of the petitioner qua respondents 3 to 5, as has been finally determined on June 25, 1970, is perfectly legal and in order. It has caused no injustice to the petitioner. On the other hand, if the plea of the petitioner is accepted and he is made senior to respondents 3 to 5, these respondents will suffer grave injustice. While deciding a petition under Article 226 of the Constitution, this Court has to bear in mind where the justice lies and no writ can be granted unless the petitioner is able to satisfy that manifest injustice will be done to him if the relief claimed is not granted. Because the continuous length of service of the petitioner as an Assistant started from January 2, 1954, he cannot claim precedence over the Assistants who were in service as such prior to that date From July 27, 1950, to September 30, 1953, the petitioner had served as an officiating Assistant on ad hoc basis or against stop-gap arrangements. He was reverted for four days, from October 1, to October 4, and was re-promoted as officiating Assistant on October 5, 10.53, and was again reverted on December 4, 1953. He was re promoted as officiating Assistant on January 2, 1954. As a Routine Clerk on reversion, he was entitled to a salary of Rs. 96.00 I while as officiating Assistant he was drawing Rs. 120, 00 Mere higher pay drawn by the petitioner on his last promotion as officiating Assistant on January 2, 1954, did not entitle him to seniority over the Assistants who were already working continuously prior thereto. The break in service as officiating Assistant had the effect of obstructing the continuous length of service.
It will not be out of place to mention here that, according to Rule 14 of the Rules, respondents 3 to 5 should have been considered as being on probation from the date of their appointment and should have been confirmed on the expiry of two years unless their work and conduct were not found to be satisfactory. It may be pleaded that the Rules were not in force when respondents 3 to 6 were appoint d, but there in ample provision in Rule 14 to consider the period of offciation as the period spent on probation. In any case, from the date these Rules came into force, that is, January 4, 1955, the said respondents could be considered to have been appointed on probation and, therefore, they should have been confirmed as Assistants on the expiry of two years of probation, that is, in January, 1955. Their confirmation on October 10, iy55, was a belated one. Looked at from any point of view, justice has been done by the impugned order to respondents 3 to 5 without doing any injustice to the petitioner as he was not entitled to any precedence over respondents 3 to 5 under any principle applicable to Services.
The Learned Counsel for the petitioner has placed great reliance on the judgment in Shri Nagin Singh Grewal, v. The State of Punjab and Ors. C.W. 2346 of 1966 (C.W. 2345 of 1966, decided on February 24 197(sic)).but on a careful perusal of that judgment I find that the two cases are distinguishable on facts and the petitioner can drive no assistance from that judgment. In that case there were no Service rules and the inter se seniority of the officers had been determined in accordance with the rules prescribed in the Ijlas-i-Khas Order dated February 18, 1946, as amended on July 31, 1946, and with reference to the dates of their confirmations, Shri Kirpal Singh, a promoted officer, was confirmed earlier than Shri Nagin Singh Grewal and Shri Partap Singh Satnam who were direct recruits and had joined service, as temporary Assistant Engineers earlier than Kirpal Singh. Before his promotion as temporary Assistant Engineer on January 4, 1954, Kirpal Singh had officiated in that post for a period of about 7 1/2 years from time to time, which period was however, not continuous. He was, allowed higher pay in the grade in view of his previous officiation although his contiguous officiation on the post of temporary Assistant Engineer started on January 4, 1954. It was pleaded by Kirpal Singh that in vie w of his higher pay he was confirmed earlier than Nagin Singh and Partap Singh Satnam and was allowed seniority above them under Rules 2 and 5 of the Jilas-i-Khas Order, 1946. This plea accepted by me with the result that I held that the inter se seniority of those three officers had been rightly fixed. In the present case, no special rank and precedence was given to the petitioner when the order dated July 13, 1956, was passed and, therefore, under the proviso to Rule 5 of Ijlas-i-Khas Order the petitioner was not entitled to seniority over respondents 3 to 5 on the basis of his higher pay alone under Rule 2 of the Iilas-i-Khas Order. Rule 5 of the said Order as revised on July 31, 1946, reads as under:
The above rules are subject to the proviso that if a State servant is promoted from menial service to ministerial or from ministerial to gazetted service, the seniority in that case will count from the date of appointment to the class of service regardless of the pay.
Provided further that if any officer is granted special personal pay on first appointment or promotion he shall not become senior in his cadre unless special rank and precedence is specifically conferred upon him.
The higher pay allowed to the petitioner on his promotion as officiating Assistant on January 2, 1964, was personal to him on the basis of the previous officiating from July 27, 1980, to September 30, 1963, and from October 5 1963, to December 4, 1953, and since on special rank and precedence was allowed to him while fixing his pay or confirming him, he was not entitled to seniority above respondents 3 to 5 under the proviso to Rule 5 ibid. This conclusion has been reached by me on the assumption that the rules of the Ijlas-i-Khas Order. 1946, as argued by the Learned Counsel for the petitioner, applied. The result is that whether the rules of the Ijlas-i-Khas Order, 1946 applied or not, the petitioner was not entitled to seniority above respondents 3 to 8, as claimed by him.
For the reasons given above, I find on merit in this petition which is dismissed but without any order as to costs.