(EX) CAPT. RANDHIR SINGH DHULL v. S. D. BHAMBRI & OTHERS

Citation: [1981] 3 S.C.R. 55

Court: Supreme Court of India

Bench: R.S. PATHAK, O. CHINNAPPA REDDY, BAHARUL ISLAM

Case summary

The Special Leave Petition was allowed to be withdrawn by this Court with liberty to the petitioner to file a Regular Writ Petition under Article 32 of the Constitution by.

Judgment text

(EX) CAPT. RANDHIR SINGH DHULL v. S. D. BHAMBRI & OTHERS March 2, 1981 [R. S. PATHAK, 0. CHINNAPPA REDDY AND BAHARUL ISLAM, JJ. ] Punjab Tahsildari Rules 1932, Rules 5 and II and Standing Order Na. 12 of1909, Part A, Para 4(1) and Punjab Emergency (Concession) Rules 1965, Rules 2 and 4(ii)-Class 'A' Tahsildar-Recruitment-Candidates initially 'accepted' and thereafter 'appointed'-Seniority-Determined by date ofsubstantive appointment in the post-Military service rendered by a candidate-Concession in seniority-When admissible. Standing Order No. 12 of 1909 (Part A) provides for. two classes of Tahsildar candidates (1) class 'A' (or direct) and (2) class 'B'. Para 4 (1) of the Standing Order read with the Punjab Tahsildari Rules 1932 provides that candidates are required to undergo training for a period of three years in the case of class 'A' direct recruits.

In addition to the completion of training a candidate is required to pass a qualifying departmental examination before he is eligible to be appornted to the post of Tahsildar, temporary or permanent. Initially, a tahsildar candidate is not enrolled against any post, nor is he appointed against any vacancy but is appointed against vacancies after completing the training and passing the examination held. After appointment to the post of tahsildar, the officer has to be on probation for a period of two years under Rule 10 of the Tahsildari Rules. Rule 11 provides that the seniority of members of the service shall be determined by the date of substantive appointment in the post. The Punjab Emergency (Concession) Rules, 1965 provides by sub-rule (ii) of Rule 4 that the period of 'military service' shall be taken into consideration for the purpose of determining the seniority of a person who has rendered military service.

The petitioner in his writ petition contended, that he appeared in the class 'A' Tahsildar candidate Haryana Civil Services (Executive Branch) ) Services Examination 1972-73 and was accepted as 'A' Class Tahsil . Tahsildars". 8. A perusal of the letter as per Annexure P. 5 alongwith sub-rules 2 and 3 of rule 5 and rule 11 of the Tahsildari Rules clearly show that by letter Annexure P. 5 the petitioner was merely accepted as a candidate for the post of Tahsildar. Annexure P. 5 itself has mentioned the terms and conditions of the service namely training, passing of departmental examination and probation to be governed by the Tahsildari Rules and Standing Order No. 12 as amended from time to time. A candidate had to fulfil the terms and conditions named in the letter before his appointment to the post of Tahsildar. The terms and conditions were : (i) to undergo a period of training (ii) to pass a departmental examination. (iii) to undergo a period of probation, etc.

Fulfilments of thes_e terms and conditions by a candidate were conditions precedent to his appointment. Annexure P. 5 has nowhere mentioned that the petitioner was appointed as a Tahsildar. We therefore have no hesitation in holding that he was not appointed to, but accepted as candidate for, the post of Tahsildar, by Annexure P. 5. 9. Rule 11 lays down that the seniority of the members of the service shall be determined by the date of the substantive _ appointment in the post. The petitioner's substantive appointment was vide order dated 3. I. 78. (Annexure A to the Counter Affidavit) which reads as : "Subject: Declaration of 'A' Class Tahsildar candidate (under training as Naib Tahsildar) as qualified for the post of Tahsildar. In Exercise of the powers vested in him vide para 6 of the Financial Commissioners Standing Order No. 12, the Financial Commissioner, Revenue is pleased to declare the following 'A' Class Tahsildar candidates as qualified for the post of Tahsildar ; I.

Shri Amar Nath Ichbpujani, under training as Naib Tabsildar, Tbanesar. 2. Shri Ashok Vasbisitha, under Training as Naib Tahsildar, Gurgaon. 3. Shri Kamal Kumar_ Gupta, under training as Naib Tahsildar, Rohtak. 4. Shri Hardhul Singh Bhole, under training as Naib Tahsildar, Mohindergarh. 5. Shri Randhir Singh Dhull, under training as Naib Tahsildar working as Tahsildar, Kalka, under local arrangement. 6. Shri Nepal Singh Tanwar, under training as Naib Tahsildar, Rawal. 2. Consequent upon the declaration of the above 'A' Class Tahsildar candidates as qualified for the post of Tahsildar, they are appointed as Tahsildars. The orders about their deployment against the posts of Tahsildars are being issued separately. Their appointment as Tahsildar shall take effect from the date they assume charge of those posts. Their appointment as Tahsildars· will be governed by the Punjab Tahsildari Rules, 1932, and the Financial Commissioners Standing Order No. 12, as amended from time to time. 3.

The declaration of Shri Hardhul Singh Bhole (sl. no. 4 above) as qualified for the post of Tahsildar and his consequent appointment as such, is subject to the condition that he should qualify the tahsildar's examination in Urdu paper within 6 months from the d. ate of issue of this letter. Sd/- Deputy Secretary to Govt. , Haryana. Revenue Department. ". (emphas'is added) From Annexure A, it is clear that the date of the substantive r appointment of the petitioner cannot be before 3. 1. 78. 10. Standing Order No. 12 of 1909 (Part A), as stated above, mentions two classes of "Tahsildar candidates": (i) Class A (or direct) and (ii) Class B. We are not concerned with class B tahsildar. Class A (or direct) candidates, according to Order No.

12, "must belong to families of tried loyalty and distinguished services, and must be of good social status and influence in the country or members of a class the introduction of which into the public ~ service it is considered desirable especially to encourage......... " (emphasis added) The petitioner submits that Standing Order No. 12 which is a part of the Tahsildari Rules does not survive the Constitution. We do not feel called upon to decide this point in this case as the petitioner cannot be allowed to raise the point for two reasons :- (i) The basis of the petitioner's case . all throughout, at all stages, was Annexure P. 5 based on the Tahsildari Rules and Standing Order No. 12. Even now he does not claim his appointment on any other basis ; · (ii) Secondly, if the Tahsildari Rules and the Standing Order No.

12 are held to be ultra vires, the letter of acceptance (or letter of appointment ·as the petitioner erronously calls it) which was issued under the provisions of the said Rules, will disappear and the petitioner will have no legs to stand on. 11. Rule 11 of the Tahsildari Rules has been quoted above. It provides for the seniority of the members of the service. It is tO be determined by the date of the substantive appointment in the post. The petitioner however claims that he is entitled to get the benefit of his service in the army during the Emergency, under the provisions of the Emergency (Concession) Rules ; Sub-rule (ii) of Rule 4 of the Emergency Concession Rules reads : "4 (ii) Seniority :-The period of military service mentioned in Clause (i) shall be taken into consideration for the purpose of determining the seniority of a person who has rendered military service.

" Military service is defined in rule 2 thus : "For the purpose of these rules, the expression "military service" means the service rendered by a person, who had been enrolled or commissioned during the period of operation of the proclamation of emergency made by the President under Art. 352 of the Constitution of India on the 26th October, 1962 in any of the three wings of the Indian Armed Forces (including the service as a Warrant Officer) during the period of the said Emergency or such other service as may hereafter be declared as military service for the purpose of these rules. Any period of military training followed by military service shall also be reckoned as military service.

A perusal of the rule quoted above shows that the Concession in seniority is admissible (i) in respect of military services rendered during the operation of emergency only and not for any military services after the termination of emergency and (ii) only if the service ·in the military is as "enrolled or commissioned service in any of the three wings of the Indian Armed Forces. " The military service of the petitioner from January 11, 1962 to July I, 1968 and again from 31. 10. 1968 to 22. 9. 1974 was not during the operation of emergency in question. Further th~ petitioner's service from October 31, 1969 to September 22, 1974 was not as an "enrolled or commissioned service in any of the three wings of the Indian Armed Forces. " During this period the petitioner has been allowed the benefit of seniority under the Emergency Concession Rules by Order dated 14. 12.

78 of the Financial Commissioner, Revenue, Haryana in the following terms : "In pursuance of provisions of rule 4 (i) and (ii) of the Punjab Government National Emergency (Concession) Rules, 1965 issued vide Punjab Government Notification No. GSR-160. Const/Art. 309/65, dated the 20th July 1965 as amended vide Haryana Govt. Notification No. GSR-182/Const. Art. 309/ Amd (2)-76, dated the 4th August, 1976. Shri Randhir Singh y Dhull, 'a' Class Tahsildar is allowed the benefit of service rendered by him in the Army during the National Emergency as an Emergency Commissioned Officer for the period from 29th April 1963 to 10th January, 1968 towards seniority and his seniority is fixed immediately below Shri Jaswant Singh Rajput among the 'A' class Tahsildars. His date of appointment as Tahsildar will be 27th May 1973. 2. Further his pay is fixed at Rs. 450/- P. M. in the scale of Rs. 350-25-500/30-650/30-800 with effect from 8. 2.

78 (his actual date of appointment to the post of Tahsildar) and his' next increment raising his pay to Rs. 475/-P. M. is 1. 2. 79. He will not be entitled to any arrears of pay as a result of the above fixation prior to 8. 2. 1978. 3. The above period of Army Service shall count for pension only after Shri Dhull has deposited the bonus or gratuity received by him from military authorities. 12, The petitioner has not been able to point out that any of the respondents No. 3 to 18 were given seniority from the date of acceptance. Jn fact none of them was accepted alongwith him by letter dated 13. 9. 74. 13. The petitioner's further grievance is that the military service of the Captain K. Phool Singh, Captain Khem Singh Lathar, Shri Inder Singh, Captain A. R. Kohar and Captain B. K, Batra mentioned in para 8 of the petition have been counted for the benefit of their seniority etc. The petitioner's grievance is baseless. Their cases were different.

None of them was given the benefit of his service from the date he joined as a 'Candidate'. The respondent in the counter affidavit asserts that not a single ex-army service Tahsildar Candidate has been allowed the benefit of mili. ary service from the date of acceptance as class 'A' Tahsildar candidate. 14. The petitioner has not been able to make out any case of discrimination and violation of Arts. 14 and 16 of the Constitution. The. petition has no merit and is dismissed. We however leave the parties to bear their own costs. 15. Mr. Bhagat, the learned Counsel appearing for the Respondent, submitted that the Writ Petition was barred by res iudicata and in support of his subrr. ission he cited a decision of this Court reported in AIR 1970 S. C. 898. We need not examine the submission for two reasons : (i) We have decided the case on merit against the petitioner and (ii) the petitioner obtained permission of this Court to file a Writ Petition vide Order 5. 9. 79 in S. L. P. No.

4475 of 1979 (Annexure P. I) N. V. K. Pl! tition dismissed.