State of Punjab Vs. Hardev Singh & Ors.
EmailAppeal: Civil Appeal No. 5065 of 1998
With C.A. Nos. 5066-5067 of 1998
With C.A. Nos. 5066-5067 of 1998
Petitioner: State of Punjab
Respondent: Hardev Singh & Ors.
Apeal: Civil Appeal No. 5065 of 1998
With C.A. Nos. 5066-5067 of 1998
With C.A. Nos. 5066-5067 of 1998
Judges: G.B. PATTANAIK & B.N. AGRAWAL, JJ.
Date of Judgment: Jan 24, 2001
Head Note:
SERVICE LAWS
Constitution
Articles 14, 226 – Seniority – No statutory rules – Circulars dated 6.4.64 and 21.4.66 of Punjab Government – Final year’s MBBS candidates given provisional Short Service Commission from 11.12.68 – Regular Short Service Commission from 25.4.69 – Dis-charged on 26.4.74 – Joining Civil Services – If entire period of SSC from 11.12.68 to be counted towards service for seniority – Circulars mainly to grant benefit to those who joined military in emergency – Said emergency over on 10.1.68. Held that since they joined after emergency was over no period can be counted. Howev-er, State has power to make rules to grant such benefits.
Held:
The said two circulars were in the nature of an incentive which had been given to all those who joined the military service during the emergency. The respondents obviously joined the mili-tary service on provisional SSC in December 1968, after the emer-gency was lifted on 10.1.1968. Therefore, the two circulars in question cannot be pressed into service to hold that the respond-ents would be entitled to the benefits of the military service rendered by them for consideration of their seniority on joining the civil service. The question being one touching the service conditions of an employee under the State Government, it is only the orders issued by the State Government or any rules framed for the said purpose by the State Government, will confer the benefit in question and the Army instructions cannot confer such benefit. (Para 5)
Until and unless the employer-State of Punjab comes forward to make necessary rules for the purpose, the respondents will not be entitled to the benefit of their service in the Army being counted for the purpose of their seniority in the civil service. (Para 7)
Cases Reffered:
1. Chittaranjan Singh Chima & Anr. v. State of Punjab (JT 1997 (2) SC 570) (Para 2)
JUDGEMENT:
ORDER
1. This bunch of appeals, by the State of Punjab and by the private doctors in the services of Punjab Government deal with the question of inter se seniority of the respondents vis-a-vis some of the private appellants who had joined the services on completion of their medical education. The respondents while continuing in the final year MBBS course were inducted into the Army on provisional Short Services Commission (for short “SSC”) with effect from 11th of December, 1968 and they were granted regular SSC w.e.f. 25th of April, 1969. They were discharged from the Armed Services on 26th of April, 1974, obviously on completion of the five years’ tenure as a regular SSC. They joined the civil services in the State and are continuing as such even till today. They filed a representation to the State Government that they are entitled to be absorbed against the reserved vacancies and as such their seniority is required to be determined in accordance with the circulars issued by the Punjab Government on 6th April, 1964 as well as on 21st of April, 1966, which in turn would mean that the services rendered by them in the Army from 1969 to 1974 would be counted. But that representation having been rejected by the State Government on the ground that the same cannot be done in view of the relevant statutory rules as well as Government Orders, they approached the High Court. A learned single Judge allowed the writ petitions with the direction that their entire period from 11.12.1968 till they are discharged from Army on 26.4.1974 will have to be counted for the purpose of their sen-iority in the civil service. The Division Bench however, came to the conclusion that the provisional SSC from 11.12.1968 till 25.4.1969 will not be counted, but at the same time, it held that the period for which these respondents served as regular SSC from 25.4.1969 to 26.4.1974 will have to be counted. It is against this judgment of the Division Bench the present appeals have been preferred.
2. It is contended by the learned Counsel appearing for the appellants that the two circulars both of the year 1964 as well as of the year 1966 unequivocally indicate that the concession would be shown to those employees who joined the military service during the emergency and since the respondents who were the writ-petitioners, joined the provisional SSC on 11.12.1968, two months after the emergency was lifted on 10.1.1968, they are not enti-tled to the benefits accruing from the aforesaid two Government circulars. The Counsel also urged that even the statutory Re-cruitment Rules framed under proviso to Article 309 of the Con-stitution of India do not confer the aforesaid benefit to the respondents and as such the High Court was in error in granting the relief. In support of this contention reliance has been placed on a decision of this Court in the case of Chittaranjan Singh Chima & Anr. v. State of Punjab (JT 1997 (2) SC 570 = (1997) 2 SCALE 183).
3. Mr. Chopra, the learned Counsel appearing for the respondents, on the other hand, contended that the terms of the language of the aforesaid two circulars, possibly may not apply to their case; but since while continuing in the final year MBBS course, the respondents having been persuaded to join the Armed services pursuant to the letter of request from the Ministry of Defence as well as certain circulars of the Army, they should not be de-prived of the services rendered by them as SSC inasmuch as they have acted to their detriment having joined the Armed Services pursuant to such request from the Army which also the State Government duly forwarded to them. According to Mr. Chopra the Army instructions of 21st of May, 1963, the letter of the Director, Health and Family Welfare, Punjab dated 1.3.1977 seeking approval of the Union Government for grant of Armed service bene-fits towards civil service, the letter of the Union Government addressed to the Chief Secretary to the Government of Punjab dated 5th of October, 1971 indicating that the Central Government has no objection to the proposal of the State Government and conveying the approval under Section 82(6) of the Punjab Re-organisation Act, 1966 on a conjoint reading, it must be held that the Government did intend to confer the benefit and, there-fore, the High Court was fully justified in granting the benefit in question.
4. In view of the rival submissions at the bar, the question for our consideration is, whether a person while in the final year of MBBS course having joined the Armed Forces after lifting of the emergency, would be entitled to claim the benefit of counting the period of services rendered in Army after he joins the civil service on being discharged from Army?
5. The conditions of service of an employee are usually governed by rules framed by the employer either in exercise of power under proviso to Article 309 of the Constitution or the Legislature having enacted a law under the First Part of Article 309 of the Constitution. In the absence of such statutory rule, the service conditions could be governed by a set of administrative instruc-tions emanating from the competent authority. In this view of the matter, unless and until it is pointed out that either a statu-tory provision or any administrative instruction confers the aforesaid benefit on the respondents, the same cannot be given. To find out whether the two circulars one of the year 1964 and the other of the year 1966 issued by the Punjab Government can be construed to have conferred the aforesaid benefit on the respond-ents, we find that the said two circulars were in the nature of an incentive which had been given to all those who joined the military service during the emergency. The respondents obviously joined the military service on provisional SSC in December 1968, after the emergency was lifted on 10.1.1968. Therefore, the two circulars in question cannot be pressed into service to hold that the respondents would be entitled to the benefits of the military service rendered by them for consideration of their seniority on joining the civil service. We have also examined the documents issued thereafter as referred to earlier, and it is no doubt true that the State Government at one point of time did intend to confer the benefit in question subject to the approval of the Union Government and the Union Government also indicated that it has no objection to the proposal of the State Government. But, even after obtaining the said approval of the Union Government, the proposal of the State Government remained as a proposal and was never given a concrete shape either by issuing any adminis-trative order or by framing any rules under proviso to Article 309 of the Constitution of India. The question being one touching the service conditions of an employee under the State Government, it is only the orders issued by the State Government or any rules framed for the said purpose by the State Government, will confer the benefit in question and the Army instructions cannot confer such benefit. It also further transpires that the State Govern-ment has framed a set of rules in exercise of power under proviso to Article 309 of the Constitution called the “Demobilised Indian Armed Forces Personnel Reservation of Vacancies in the Punjab State Technical (Medical and Engineering) Services Rules, 1968” which has been amended by a notification of the year 1976 giving the amendment retrospective effect from 9th of January, 1971. But, in view of the definition of “Released Indian Armed Forces Personnel” contained in Section 3(e) of the amended Rules, the respondents cannot be included therein. Mr. Chopra however brought to our notice a further amendment purported to have been made under the proviso to Article 309 of the Constitution of India to the Punjab Service of Engineers Class-II P.W.D. (Build-ing and Roads Branch) Rules, 1965 by inserting Rule 10-A after Rule 10 of the Punjab Service of Engineers Class-II P.W.D. (Building and Roads Branch) Rules, 1965, but those Rules cannot govern the service conditions of employees serving under the Health Department and, until and unless the Recruitment Rules called Demobilised Indian Armed Forces Personnel Reservation of Vacancies in the Punjab State Technical (Medical and Engineering) Services Rules, 1968 are amended, the aforesaid amendment of Rule 10-A of the Punjab Service of Engineers Class-II P.W.D. (Building and Roads Branch) Rules, 1965 will be of no consequence.
6. It is, no doubt true that these respondents were allured to join the SSC while they were still continuing their study in the final year of MBBS course and, therefore, it would have been possible for a court to examine whether they can plead the prin-ciple of promissory estoppel. But, to apply the said principle, three conditions must be satisfied – i) unequivocal promise from the employer, ii) pursuant to the said promise the employee had acted and iii) such act was to his detriment.
7. We have tried our level best to find out as to whether there was any unequivocal promise from the State of Punjab indicating that in the event the students of final year of MBBS course join the military service, on their returning from the Army and join-ing civil service, the period of service rendered by them in the military service would be counted for the purpose of their sen-iority, but we found none. In the absence of such unequivocal promise emanating from the State of Punjab, it is difficult for us to apply even the principle of promissory estoppel to redress the grievances of these respondents. In the aforesaid premises, though we are of the opinion that the respondents who joined the Army after the emergency was lifted, when there was dearth of medical personnel in the Army, yet until and unless the employer-State of Punjab comes forward to make necessary rules for the purpose, the respondents will not be entitled to the benefit of their service in the Army being counted for the purpose of their senior-ity in the civil service.
8. In the circumstances enumerated hereinabove, we have no hesi-tation to come to the conclusion that the High Court committed error in granting the relief sought for by the respondents in their writ petitions. We, therefore, set aside the judgments of the Division Bench and the single Judge of Punjab and Haryana High Court and hold that the writ petitions filed would stand dismissed. These appeals are accordingly allowed.
9. Notwithstanding what we have said on interpreting the provi-sions of Rules and Instructions as it stands, there is no embargo on the power of the State Government to frame suitable rules in exercise of power under Article 309 of the Constitution of India.
1. This bunch of appeals, by the State of Punjab and by the private doctors in the services of Punjab Government deal with the question of inter se seniority of the respondents vis-a-vis some of the private appellants who had joined the services on completion of their medical education. The respondents while continuing in the final year MBBS course were inducted into the Army on provisional Short Services Commission (for short “SSC”) with effect from 11th of December, 1968 and they were granted regular SSC w.e.f. 25th of April, 1969. They were discharged from the Armed Services on 26th of April, 1974, obviously on completion of the five years’ tenure as a regular SSC. They joined the civil services in the State and are continuing as such even till today. They filed a representation to the State Government that they are entitled to be absorbed against the reserved vacancies and as such their seniority is required to be determined in accordance with the circulars issued by the Punjab Government on 6th April, 1964 as well as on 21st of April, 1966, which in turn would mean that the services rendered by them in the Army from 1969 to 1974 would be counted. But that representation having been rejected by the State Government on the ground that the same cannot be done in view of the relevant statutory rules as well as Government Orders, they approached the High Court. A learned single Judge allowed the writ petitions with the direction that their entire period from 11.12.1968 till they are discharged from Army on 26.4.1974 will have to be counted for the purpose of their sen-iority in the civil service. The Division Bench however, came to the conclusion that the provisional SSC from 11.12.1968 till 25.4.1969 will not be counted, but at the same time, it held that the period for which these respondents served as regular SSC from 25.4.1969 to 26.4.1974 will have to be counted. It is against this judgment of the Division Bench the present appeals have been preferred.
2. It is contended by the learned Counsel appearing for the appellants that the two circulars both of the year 1964 as well as of the year 1966 unequivocally indicate that the concession would be shown to those employees who joined the military service during the emergency and since the respondents who were the writ-petitioners, joined the provisional SSC on 11.12.1968, two months after the emergency was lifted on 10.1.1968, they are not enti-tled to the benefits accruing from the aforesaid two Government circulars. The Counsel also urged that even the statutory Re-cruitment Rules framed under proviso to Article 309 of the Con-stitution of India do not confer the aforesaid benefit to the respondents and as such the High Court was in error in granting the relief. In support of this contention reliance has been placed on a decision of this Court in the case of Chittaranjan Singh Chima & Anr. v. State of Punjab (JT 1997 (2) SC 570 = (1997) 2 SCALE 183).
3. Mr. Chopra, the learned Counsel appearing for the respondents, on the other hand, contended that the terms of the language of the aforesaid two circulars, possibly may not apply to their case; but since while continuing in the final year MBBS course, the respondents having been persuaded to join the Armed services pursuant to the letter of request from the Ministry of Defence as well as certain circulars of the Army, they should not be de-prived of the services rendered by them as SSC inasmuch as they have acted to their detriment having joined the Armed Services pursuant to such request from the Army which also the State Government duly forwarded to them. According to Mr. Chopra the Army instructions of 21st of May, 1963, the letter of the Director, Health and Family Welfare, Punjab dated 1.3.1977 seeking approval of the Union Government for grant of Armed service bene-fits towards civil service, the letter of the Union Government addressed to the Chief Secretary to the Government of Punjab dated 5th of October, 1971 indicating that the Central Government has no objection to the proposal of the State Government and conveying the approval under Section 82(6) of the Punjab Re-organisation Act, 1966 on a conjoint reading, it must be held that the Government did intend to confer the benefit and, there-fore, the High Court was fully justified in granting the benefit in question.
4. In view of the rival submissions at the bar, the question for our consideration is, whether a person while in the final year of MBBS course having joined the Armed Forces after lifting of the emergency, would be entitled to claim the benefit of counting the period of services rendered in Army after he joins the civil service on being discharged from Army?
5. The conditions of service of an employee are usually governed by rules framed by the employer either in exercise of power under proviso to Article 309 of the Constitution or the Legislature having enacted a law under the First Part of Article 309 of the Constitution. In the absence of such statutory rule, the service conditions could be governed by a set of administrative instruc-tions emanating from the competent authority. In this view of the matter, unless and until it is pointed out that either a statu-tory provision or any administrative instruction confers the aforesaid benefit on the respondents, the same cannot be given. To find out whether the two circulars one of the year 1964 and the other of the year 1966 issued by the Punjab Government can be construed to have conferred the aforesaid benefit on the respond-ents, we find that the said two circulars were in the nature of an incentive which had been given to all those who joined the military service during the emergency. The respondents obviously joined the military service on provisional SSC in December 1968, after the emergency was lifted on 10.1.1968. Therefore, the two circulars in question cannot be pressed into service to hold that the respondents would be entitled to the benefits of the military service rendered by them for consideration of their seniority on joining the civil service. We have also examined the documents issued thereafter as referred to earlier, and it is no doubt true that the State Government at one point of time did intend to confer the benefit in question subject to the approval of the Union Government and the Union Government also indicated that it has no objection to the proposal of the State Government. But, even after obtaining the said approval of the Union Government, the proposal of the State Government remained as a proposal and was never given a concrete shape either by issuing any adminis-trative order or by framing any rules under proviso to Article 309 of the Constitution of India. The question being one touching the service conditions of an employee under the State Government, it is only the orders issued by the State Government or any rules framed for the said purpose by the State Government, will confer the benefit in question and the Army instructions cannot confer such benefit. It also further transpires that the State Govern-ment has framed a set of rules in exercise of power under proviso to Article 309 of the Constitution called the “Demobilised Indian Armed Forces Personnel Reservation of Vacancies in the Punjab State Technical (Medical and Engineering) Services Rules, 1968” which has been amended by a notification of the year 1976 giving the amendment retrospective effect from 9th of January, 1971. But, in view of the definition of “Released Indian Armed Forces Personnel” contained in Section 3(e) of the amended Rules, the respondents cannot be included therein. Mr. Chopra however brought to our notice a further amendment purported to have been made under the proviso to Article 309 of the Constitution of India to the Punjab Service of Engineers Class-II P.W.D. (Build-ing and Roads Branch) Rules, 1965 by inserting Rule 10-A after Rule 10 of the Punjab Service of Engineers Class-II P.W.D. (Building and Roads Branch) Rules, 1965, but those Rules cannot govern the service conditions of employees serving under the Health Department and, until and unless the Recruitment Rules called Demobilised Indian Armed Forces Personnel Reservation of Vacancies in the Punjab State Technical (Medical and Engineering) Services Rules, 1968 are amended, the aforesaid amendment of Rule 10-A of the Punjab Service of Engineers Class-II P.W.D. (Building and Roads Branch) Rules, 1965 will be of no consequence.
6. It is, no doubt true that these respondents were allured to join the SSC while they were still continuing their study in the final year of MBBS course and, therefore, it would have been possible for a court to examine whether they can plead the prin-ciple of promissory estoppel. But, to apply the said principle, three conditions must be satisfied – i) unequivocal promise from the employer, ii) pursuant to the said promise the employee had acted and iii) such act was to his detriment.
7. We have tried our level best to find out as to whether there was any unequivocal promise from the State of Punjab indicating that in the event the students of final year of MBBS course join the military service, on their returning from the Army and join-ing civil service, the period of service rendered by them in the military service would be counted for the purpose of their sen-iority, but we found none. In the absence of such unequivocal promise emanating from the State of Punjab, it is difficult for us to apply even the principle of promissory estoppel to redress the grievances of these respondents. In the aforesaid premises, though we are of the opinion that the respondents who joined the Army after the emergency was lifted, when there was dearth of medical personnel in the Army, yet until and unless the employer-State of Punjab comes forward to make necessary rules for the purpose, the respondents will not be entitled to the benefit of their service in the Army being counted for the purpose of their senior-ity in the civil service.
8. In the circumstances enumerated hereinabove, we have no hesi-tation to come to the conclusion that the High Court committed error in granting the relief sought for by the respondents in their writ petitions. We, therefore, set aside the judgments of the Division Bench and the single Judge of Punjab and Haryana High Court and hold that the writ petitions filed would stand dismissed. These appeals are accordingly allowed.
9. Notwithstanding what we have said on interpreting the provi-sions of Rules and Instructions as it stands, there is no embargo on the power of the State Government to frame suitable rules in exercise of power under Article 309 of the Constitution of India.
