9911796707
TMI Blog1975 (1) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... of being in contravention of the Office Memorandum of June 22, 1949, of the Ministry of Home Affairs. They also challenge the validity of Rule 18(1) of the Central Secretariat Service Rules, 1962 (briefly the Rules) in so far as it is construed to protect the seniority determined prior to the commencement of the said Rule in violation of the Office Memorandum of June 22, 1949. The petitioners allege that the Government have not followed any consistent principle or rule in regulating the seniority of the Assistants. It is said the first Respondent prepared lists of officers in the Assistant's Grade by different combination of classifications, such as initial Constitution, regular temporary establishments, non-test category, first test category, second test category, hard cases category, displaced persons, direct recruits, etc. and effected promotions in utter disregard of the dates of confirmation. The first Respondent appointed a large number of persons as Assistants by direct recruitment and many of those appointed after the petitioners have been confirmed in the grade and have since been promoted to the next higher grade of Section Officer. According to the petitioners glari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of the Ministry of Home Affairs Office Memorandum No. 23/20/48-NGS, dated the 25th May, 1948. As contemplated in that Memorandum two tests will be held by the Federal Public Service Commission in which the temporary 'qualifiables' as defined therein will be enabled to qualify for permanent absorption in Grade IV. In the first of two tests only qualifiable temporary Assistants will be allowed to appear. It would then be considered with reference to the number of vacancies to be filled as well as the number of qualifiable candidates remaining whether, and if so to what extent, the second test should be thrown open partially to the outsiders also. 4. Paragraph 26 in Part V of the Scheme dealing with future maintenance of the Service, provides, inter alia, for the recruitment as follows : Permanent vacancies in the Authorised Permanent Strength of this Grade will be filled in two ways. One out of every 4 vacancies will be filled, Ministry-wise, by promotion from the Ministerial Grades below the rank of Assistant. The remaining 3 vacancies will be pooled for the Central Secretariat as a whole and filled from among the successful candidates at the competitive Minister ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provement of efficiency of the rest through a permanent tenure and better training and guidance . 7. Then in sequence came the instructions for the initial Constitution of the Assistants' Grade of the Service on March 1, 1949. These instructions governed the manner in which the sanctioned permanent strength of the grade of Assistants would be filled by existing permanent Assistants and from various categories of existing temporary employees. 8. The scheme of the Instructions contains these broad features : (1) All existing permanent Assistants who are not appointed to higher grades in the Service will form part of the permanent strength of the Service. (2) The remaining number of permanent vacancies in the Grade will be divided among three categories, namely, (i) The Non Test Category, (ii) The First Test Category and (iii) The Second Test Category. A particular specified number of vacancies will be allotted to the Non Test Category and the remaining vacancies will be divided among the First Test Category and the Second Test Category in the ratio 2:1. There is also reservation of a specific number of vacancies for allotment to Displaced Government servants. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nged in a single list for all Ministries and their seniority inter se will be determined on the basis of their length of continuous service temporary or permanent in the grade of Assistant or in an equivalent grade. 11. After the sanctioned strength of the permanent establishment has been filled up as set out earlier, the remaining persons in the Non Test, First Test and Second Test Categories, because of lack of sanctioned strength in the various categories, could not be absorbed will form a regular temporary establishment (R.T.E.). There will be a single seniority list for such R.T.E. and seniority will be determined on the basis of the length of continuous service. The sanctioned strength of the service upto October 22, 1950, will be filled as above. Thereafter a proportion of future permanent vacancies will be filled by appointments, based upon seniority from the list of members of the R.T.E. 12. The next stage is reached when instructions for the Constitution and maintenance of the regular temporary establishment of Assistants were issued on August 26, 1952. The R.T.E. as initially constituted is as follows : A list (List A) arranged in order of seniority as Assistant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in para 2 of the Instructions far the initial Constitution of the grade of Assistants.... This paragraph 8 which is mentioned is the one which is quoted earlier from the Instructions of March 1, 1949, which was expressly intended for the initial Constitution of the Assistant's Grade of the Central Secretariat Services. The principle which was adumbrated in the Office Memorandum of June 22, 1949, is the same as has been earlier mentioned in paragraph 8 of the Instructions of March 1949. 14. In paragraph 11 of the counter-affidavit of the Deputy Secretary to the Government of India, Department of Personnel, Cabinet Secretariat, it is stated as follows : I say that the statement that persons who were appointed long after the petitioners' appointment as Assistants have been further promoted in supersession of the claims of the petitioners is a statement made shorn of its context. That criticism would have been valid if with regard to the Assistants of the Central Secretariat Service the Office Memorandum of 1949 was applicable under which length of service was the criterion in the matter of determining seniority... with reference to Annexure 'B' to the writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ency in the Service. There is no discrimination whatsoever amongst the equals as such nor any arbitrary exercise of power by the Government. In absence of any statutory rules prior to the Central Secretariat Rules 1962 it was open to the Government in exercise of its executive power to issue administrative instructions with regard to Constitution and reorganisation of the Service as long as there is no violation of article 14 or article 16 of the Constitution. Subject to what is observed hereafter, as held above we do not find that the instructions of the Government made from time to time violated any fundamental rights of the petitioners. We should also observe that the various Office Memorandum and instructions including the Civil list of 1962 have not been challenged as invalid with the solitary exception of the Office Memorandum of 1971 (Annexure I). This Office Memorandum again is based on the Civil List of 1962 the validity of which is not specifically challenged in this Petition. We, therefore, do not find any infirmity in the Office Memorandum of 1971 (Annexure I), simply because it is not in conformity with the Office Memorandum of June 22, 1949. Besides, it is stated in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ike of economy and efficiency that as large a proportion is possible of the members of the service should be recruited on a permanent basis.... If the Authorised permanent strength is reduced, effect should be given to such reduction by equivalent reduction in the following triennium of the rate of direct recruitment to the Service... It was, therefore, not the intention of the scheme to prejudice the seniority of the Assistants after their absorption in the Service nor such an intention was evident in the explanatory memorandum annexed to the Office Memorandum of October 25, 1948. In para 11 of the latter Memorandum it is unambiguously stated the reinforcement is not required at the lowest level, namely, the Assistants' Grade. Here what is necessary is the weeding out of the poor quality material and the improvement of efficiency of the rest through permanent tenure and better training and guidances. This is also clear from the instructions for the Constitution and maintenance of the regular temporary establishment of Assistants dated August 26, 1968. Para 9 thereof provides that all permanent vacancies in Grade IV not filled by direct recruitment on the results of Competiti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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