UDAY PRATAP SINGH AND ORS.versusTHE STATE OF BIHAR AND ORS.

A                     UDAY PRATAP SINGH AND ORS.
                                         v.
                      THE STATE OF BIHAR AND ORS.
                                   AND
                           D.N. SINHA AND ORS.
B                                        v.
                      THE STATE OF BIHAR AND ORS.

                              SEPTEMBER 29, 1994

       [KULDIP SINGH, B.L. HANSARIA AND S.B. MAJMUDAR, JJ.]
c
         Service law-Merger of Junior Branch and Senior Branch of Bihar
  Finance Service by government resolution of November 2, 1975-Junior
  Branch members appointed to the Senior Branch retrospectively from April
  1, 1974 and given seniority over earlier direct recruits in the Senior
D Brancl>-Held, no retrospective effect could be given to the merger so as to
  affect vested rights of incumbents in higher branclt-Constitution of India,
  Articles 14, 16.

         Constitution of India, Article 309-Bihar Finance Service Rules,
  195J-Merger of Junior Branch with Senior Branch by government resolution
E retrospectively giving seniority to merged members of Junior Branch over
  incumbents in Senior Brancl>-Held, statutory rules cannot be whittled down
  by an executive order nor can any retrospective effect be given to such order.

           Constitution of India, Article 136-Special Leave Petition against ear-
    lier High Court decision upholding retrospective implementation of impugned
F   resolution summarily rejected by non-speaking order-Held, cannot be said
    Supreme Court put its imprimature on observations in judgment of the High
    Court-<:onstitution of India. Article 141--l'ractice and Procedure.

          The Appellants, belonging to the Junior Branch of the Bihar Finance
G   Service, were merged with and appointed retrospectively from April 1,
    1974 to the Senior Branch by a government resolution of November 2, 1975.
    The respondents, who were incumbent direct recruits in the Senior Branch
    at the time of merger were appointed on May 12 and 25, 1974.

          Under the Bibar State Finance Service Rules, 1953 under Article 309
H of the Constitution, seniority was to be reckoned from date of substantive
                                         72
               U.P. SINGHv. STATEANDSINHAv. STATE                         73

appointment. However, the Patna High Court In the case of Kartik Charan A
Iha v. State, held that the seniority of the mergees vis-a-vis the direct
recruits of the Senior Branch had to be reckoned from April 1, 1974. The
Supreme Court dismissed, by a non-speaking order, the Special Leave
Petition against the High Court' Order in Jha's case.

       Accepting the appellant's claim to seniority over the respondents, the   B
State of Bibar issued a provisional gradation list which was challenged by
the respondents by a writ petition. The Patna High Court allowed the
petition holding that merger could not be given retrospective effect and
that the seniority of the appellants bad to be reckoned from November 2,
1975 the date on which they were substantively appointed to the Senior          C
Branch.

      Dismissing the Appeal, this Conrt

      HELD : 1. No retrospective effect could be not given to any merger of
erstwhile lower branch into higher branch in the cadre so as to affect the      D
vested rights ofincumbents already occupying posts in the erstwhile higher
branch of the cadre. The respondents who entered the Senior Branch much
prior to November 2, 1975 were entitled to be treated as seniors to the
appellants. Otherwise, the respondents would clearly get their constitution-
al rights guaranteed under Articles 14 and 16 violated. [78-G, 80-C]
                                                                                E
      Kartik Iha v. State, (decision dated Aprll 8, 1986 of Patna High Court
in Writ Petition Nos.4827 of 1984 and 2335 of 1982), partly overruled.

      Director, Lift Irrigation Corporation Ltd. and Ors. v. Pravat /(jran
Mohanty, [1991) 2 SCC 295; Nirmal Kumar Choudhary and Ors. v. State of F
Bihar and Ors., [1988) Suppl. SCC 107; Union of India and Ors. etc. v. Dr. .
Krishna Murthy and Ors., [1989) 4 SCC 689, explained and distinguished.

      Bishan Sarup Gupta etc. v. Union of India etc., [1973) 3 SCC 1,
referred to.
                                                                                G
      2. By an executive order the statutory rules cannot be whittled down
nor can any retrospective effect be given to such executive order so as to
destroy any right which had become and crystallised. [78-E)

      T.R. Kapur and Ors. v. State of Haryana and Ors., AIR (1987) SC 415,
followed.                                                                       H
    74                    SUPREME COURT REPORTS [1994] SUPP. 4S.C.R.

A        3. It is true that against the earlier decision of the High Court,
    Special Leave Petition was rejected by this Court but as it was not by
    speaking order, it cannot be said that court had put its imprimatur on the
    observations in flia's case. (79-C]

          Indian Oil Co1poration v. State of Bihar, AIR (1986) SC 1780, fol-
B lowed.

          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3670 of
    1988 etc.

          From the Judgment and Order dated 16.3.88 of the Patna High Court
C   in C.W.J.C. No. 2223 of 1987.

          Govind Mukhoty and K.N. Rai for the Appellants.

          P.P. Rao and L.R. Singh for the Respondents.

D         Ms. Sangeeta Agrawal (N.P.) for the Respondent.

         S.K. Bhattacharya and U.S. Prasad for the Respondent in No. 1-3 in
    C.A. No. 3670/88.

          R.K. Khanna and R.P. Singh for the Respondent No. 5 in C.A. No.
E   3670/88.

          The Judgment of the Court was delivered by

          MAJMUDAR, J. These two appeals by special leave arise out of the
    judgment rendered by a Division Bench of the Patna High Court in Civil
F   Writ Jurisdiction Case No. 2223 of 1987 decided on 16.3.1988 The High
    Court has allowed the writ petition of the writ petitioners. Two batches of
    the concerned aggrieved respondenis have filed the present civil appeals.

          The short facts leading to these proceedings deserve to be noted at
    the outset. The appellants and the original writ petitioners who are respon-
G   dents in these appeals belong to the Bihar Finance Service. The Bihar
    Service was originally consisting of two branches, namely, the Senior
    Branch and the Junior Branch. As per the Bihar Finance Service Rules,
    1953 framed under Article 309 of the Constitution of India, seniority was
    to be reckoned from the date of the substantive appointment of the
H   concerned incumbent. The appellants herein were appointed to the Junior
          U.P.SINGHv. STATE AND SINHAv. STATE[MAJMUDAR,J.]                  75

    Branch while original writ petitioners were appointed as direct recruits in A
    the senior Branch. So far as the original writ petitioners, respondents
    herein, are concerned, some of them were directly recruited and appointed
    in the Senior Branch on 12.5.1974 and rest of the original writ petitioners
    were appointed as direct recruits on 25.5.1974. The State Government _of
    Bihar decided to merge the different cadres existing in the Civil Services, B
    Finance Service and Education Service. Accordingly, by a Government
    Resolution issued by Finance (Commercial Taxes) Department dated
    1.4.1975, the State Government decided that both the Senior and Junior
    Branches of the Bihar Finance Service be merged. The merger of Junior
    and Senior Branches was to be effective from 1.4.1974. It is pertinent to
    note that prior to the aforesaid decision regarding the merger of two C
    branches, the Bihar Finance Service Rules, 1953, which were statutory
    rules, were framed under the proviso to Article 309 of the Constitution of
    India. Rule 3 indicated that the members of the Senior and the Junior
    Branches of the Bihar Finance Service shall have gazetted rank and as per
    rule 5 of the said rules one of the sources of recruitment to the Senior D
    Branch was by promotion according to Rules in Part -IV from the Junior
    Branch. Thus prior to the Government Resolution of 1.4.1975, a person
    belonging to the Junior Branch in Bihar Finance Service could aspire to
    reach the senior Branch by way of promotion. So far as the appellants are
    concerned, by Government Notification dated 2.11.1975 (Annexure-5 to E
    the Special Leave Petition) one hundred and two officers belonging to the
    Junior Cadre of the Bihar Finance Service were appointed in the. Senior
    Branch with effect from 1.4.1974. That was done as a result of the aforesaid
    merger of the Senior Branch and the Junior Branch of the Bihar Finance
    Service. The appellaqts are covered by the said Government Notification
                                                                                  F
    dated 2.11.1975. As per the said Government Notification they were ap-
    pointed w.e.f. 1.4.1974 though the order appointing them was passed on
    2.11.1975. They claimed seniority in the merged cadre of erstwhile Junior
    and senior Branches w.e.f. 1.4.1974. They contended that as the original
    writ petitioners, respondent herein, were directly recruited to the erstwhile


-
    Senior Branch on 12.5.1974 and 25.5.1974 respectively, they have to be G
    treated as juniors to the appellants who got appointed retrospectively on
    1.4.1974. The claim of the appellants was tentatively accepted by the State
    of Bihar and a provisional gradation list was issued by the State of Bihar
    placing the appellants higher to the respondents in the list. Objections to
    the said provisional gradation list were also invited. The contesting respon- H
     76                    SUPREME COURT REPORTS (1994) SUPP. 4 S.C.R.

A    dents direct recruits of the 21st Combined Competitive Examination filed
     the aforesaid writ petition in the Patna High Court for quashing the
     provisional gradation list. It may be mentioned at this stage that earlier the
     Patna High Court in Writ Petitions Nos. 4827 of 1984 and 2335 of 1982 in
     the case of Kartik Charan Iha v. State, decided on 8.4.1986 had held that
B    on aecount of merger of the Junior Branch and the Senior Branch in the
     Bihar Finance Service with effect from 1.4.1974, the seniority of these
     mergees had to be reckoned from the date of the merger of these branches
     i.e. 1.4.1974 vis-a-vis the direct recruits to the Senior Branch who had to
     reckon their seniority from the dates of their appointments. Against this
C    decision a Special Leave Petition was unsuccessfully carried to this Court
     and the same was dismissed on 13.8.1986 by a non-speaking order. It is
     thereafter that the aforesaid impugned provisional gradation list was
     prepared by the State of Bihar came to be challenged in Writ Petition No.
     2223 of 1987, as aforesaid, by the direct recruits. A Division Bench of the
     Patna High Court after hearing the writ petitioners and the contesting
.D   respondents came to the conclusion that as the direct recruits were ap-
     pointed to the Senior Branch of the Bihar finance Service on 12.5.1974
     and 25.5.1974 respectively while the appellants were appointed to the
     merged cadre on 2.11.1975 and as their appointments could not be made
     retrospectively with effect from 1.4.1974 nor could merger of the two
E    branches of the two cadres be effected retrospectively from 1.4.1974, the
     seniority of the respondents had to be reckoned from 12.5.1974 and
     25.5.1974 respectively while the seniority of the appellants had to be
     reckoned from 2.11.1975 being the date on which they were appointed to
     the merged combined cadre of the Senior Branch of the Bihar Finance
F    Service. Accordingly, the writ petition was allowed. The placing of Respon-
     dents Nos. 4 to 61 who were in erstwhile Junior Branch above the respon-
     dents \n the gradation list was held to invalid and violative of Articles 14
     and 16 of the Constitution. The respondent-State of Bihar was directed to
     make necessary corrections in the gradation list in the light of the Court's
O    Judgment. As noted earlier it is this judgment of the Division Bench of the
     Patna High Court that is impugned in these two appeals.

           As both these appeals arise from the same judgment, the learned
     counsel appearing in both these appeals for the respective contesting
     parties addressed common arguments and accordingly these two appeals
H    are also being disposed of by common judgment.
      U.P. SINGH v. STATE AND SINHA v. STATE [MAIMUDAR, J.]           77

       Learned counsel for the appellants mergees who were working in the A
erstwhile Junior Branch, vehemently contended that this was not a case of
promotion of an employee from the Junior Branch to the Senior Branch
by order dated 2.11.1975 but it is the case of upgradation of the posts and
once the upgradation was made with effect from 1.4.1974, the appellants
must be treated senior to the direct recruits original writ petitioners B
respondents herein, who came on the scene later on 12.5.1974 and
25.5.1974 respectively. That the earlier decision of the High Court in Kartik
Charan Jha's case also. Once that decision was upheld by the Supreme
Court when the Special Leave Petition was dismissed, it was not open to
the High Court to take a contrary view in the present case. That merger C
of the Junior Branch and the Senior Branch to be effective from 1.4.1974
was upheld in the earlier proceedings and on that basis the appellants who
got appointments in the Senior Branch in the concerted cadre of erstwhile
Junior and Senior Branches should have been treated senior to the respon-
dent. On the other hand, learned counsel for the respondents vehemently D
contended that the executive order of merger of the two branches of the
cadre could not operate retrospectively so as to destroy vested rights of
other employees who might have got inducted in the meantime in service.
That for the first time, the State of Bihar decided to merge the Junior
Branch and the Senior Branch of the Bihar Finance Servii:e by order dated
1.4.1975. Such an executive order could not operate retrospectively from E
1.4.1974 even though it purports to do so. That it could not whittle down
the scope and ambit of the statutory rules framed under Article 309 of the
Constitution which ware holding the field prior to the resolution of the
merger of these two branches on 1.4.1975, as the resolution to merger two
branches was passed only on 1.4.1975. The actual implementation of F
merger was subject to rules which were to be framed but never framed
under Article 309 of the Constitution. That in the meantime, respondents
writ petitioners got appointed under the erstwhile Service Rules on
12.5.1974 and 25.5.1975 respectively. That the appellants came to the
merged cadre only for the first time by order dated 2.11.1975. Such an G
executive order, therefore, eannot operate retrospectively from 1.4.1974
and destroy the right of seniority acquired by the respondent- writ
petitioners from the dates of their appointments to the Senior Branch. It
was further submitted that the earlier decision of the High Court was
rightly distinguished by the Division Bench of the Patna High Court in the H
    78                    SUPREME COURT REPORTS [1994] SUPP. 4 S.C.R.

A   impugned judgment as in Kartik Charan Jha's case (supra) the direct
    recruits were appointed to the Senior Branch only in 1976 while the
    employees working in the erstwhile Junior Branch got appointed to the
    merged cadre on 2.11.1975. It was further submitted that the observation
    of the High Court in the earlier case in paragraph 14 of the judgment could
B   not be legally sustained as there was no substantive appointment of the
    promotees in the combined cadre with effect from 1.4.1974, and it could
    only be effective from 2.11.1975 when the order was passed in their favour.
    It was next contended that even though that decision was carried in the
    Special Leave Petition before this Court, the order of this Court summarily
C   rejecting the petition was not a speaking order and could not, therefore,
    be treated as an anthoritative pronouncement on this point by this Court.

          Having given our anxious consideration to the rival contentions, we
    have reached the conclusion that there is much substance in the conten-
    tions canvassed by the learned counsel for the respondents and we do not
D   find any flaw in the decision of the High Court impugned in these appeals.
    The reasons are these.


           By a catena of decisions of this Court, it is now well-settled that by
    an executive order the statutory rules carmot be whittled down nor can any
E   retrospective effect be given to such exe.cutive order so as to destroy any
    right which become crystallised. In this connection, it is profitable to refer
    a decision of this Court in T.R. Kapur & Ors. v. State of Haryana & Ors.,
    A.LR. (1987) S.C. 415, wherein it is held that rules framed under Article
    309 of the Constitution carmot affect or impair vested rights, unless it is
    specifically so provided in the concerned statutory rules. It is obvious that
F   an executive direction stands even on a much weaker footing. It is true, as
    laid down in Bishan Samp Gupta etc. etc v. Union of India & Ors. etc. etc.,
    [1973] 3 S.C.C. 1, that effect of upgradation of a post is to make the
    incumbent occupy the upgraded post with all logical benefits flowing
    therefrom and can be treated as promoted to the post. Still it cannot be
G   gainsaid that no retrospective effect could be given to any merger of
    erstwhile lower branch into higher branch in the cadre so as to effect the
    vested rights of incumbents already occupying posts in the erstwhile higher
    branch of the cadre. In the present case it has to be kept in view that the
    contesting respondents were directly recruited and appointed in the Senior
    Branch on 12.5.1974 and 25.5.1974 respectively, while the appellants were
H   appointed on 2.11.1975 in the merged cadre. It is true their order of
      U.P. SINGH v. STATE AND SINHA v. STATE [MAJMUDAR,J.]              79

 appointment purports to give them appointment retrospectively from A
1.4.1974 but such effect cannot be given so as to destroy the seniority rights
of the writ petitioners, respondents herein, who were inducted as direct
recruits in the Senior Branch prior to 2.11.1975. The earlier decision of the
Patna High Court in the case of Kartik Charan Jha's case (supra) was
rightly distinguished by the Division Bench in the present case as in Jha's
case (supra) the direct recruits were inducted much after 2.11.1975 when B
the mergees got their Junior Branch's appointments upgraded to the
combined merged cadre and became a part and parcel of the Senior
Branch earlier to these direct recruits, while in the present case all the
contesting respondents had entered the Senior Branch much prior to
2.11.1975 as seen above. Therefore, they were entitled to be treated as C
seniors to the appellants. It is true that against earlier decision of the High
Court, Special Leave Petition was rejected by this Court but as it was not
a speaking order, it cannot be said that this Court had put its imprimatur
on the observations found in paragraph 14 of the judgment in !ha'< case,
which we have referred to earlier. As held in the decision of this Court in
Indian Oil Corporation v. State of Bihar, A.i.R. (1986) S.C. 1780, when D
Special Leave Petition is summarily rejected, it occasions no merger of the
order of the lower court in the order of the Snpreme Court, and even such
an order can be challenged in the High Court. It is true that even the review
petition filed against the decision in Jha's case was rejected by the High
Court. But that is neither here nor there." It is not possible to agree with
the observations of the High Court in!ha's case (supra) made in paragraph E
14 that on account of the merger, the erstwhile incumbents in Junior
Branch became substantively appointed to the merged cadre with effect
from 1.4.1974. That observation runs counter to the well-established legal
position that by executive fiat no such retrospective appointments can be
given to any incumbent so as to destroy the seniority of employees who had F
entered the cadre much prior to their entry. Reliance placed on the
decision of this Court in Director, Lift Irrigation Corporation Ltd. & Ors. v.
Pravat Kiran Mohanty & Ors. (1991] 2 S.C.C. 295 for submitting that a policy
decision to merge the two branches of a cadre cannot be subjected to a
judicial review is also of no avail to the learned counsel for the appellants
for the simple reason that in that case the Court was not concerned with G
the consideration about any retrospective effect of such a policy decision.
Similarly, the decision of this Court in Nirmal Kumar Chaudhary & Ors. v.
State of Bihar& Ors., (1988] S.C.C. 107, which laid down that in the absence
of any statutory rules seniority can be reckoned in the common cadre
considering all the incumbents, also cannot be of any avail to the appellaJltS H
    80                    SUPREME COURT REPORTS (1994] SUPP. 4 S.C.R.

A as at the relevant time when the respondents entered the cadre as direct
    recruits, the erstwhile rules were already holding the field, and the appel-
    lants were not on the scene. On the other hand, pursuant to the merger of
    both these_ branches fresh rules were required to be framed under Article
    309 of the Constitution even after 1.4.1975 and which were not framed till
    the appellants entered the merged cadre. Learned counsel for the appel-
B   !ants lastly placed reliance on the decision of this Court in Union of India
    & Ors. etc. v. Dr. Krishna Murthy & Ors. etc., (1989] 4 S.C.C. 689 for
    submitting that there is no fundamental right of anyone to a particular
    seniority. This decision also cannot be of any assistance to the appellants
    as in the present case as rightly found by the High Court if the appellants
C   who entered the merged cadre of the Senior Branch only on 2.11.1975 are
    to be treated as senior to the respondents who had entered the Senior
    Branch as direct recruits prior thereto, the respondents would clearly get      4

    their constitutional rights guaranteed under Articles 14 and 16 violated.

           For all these reasons, there is no substance in any of the contentions
D canvassed by the learned counsel for the appellants. In the result, the
    appeals fail and are dismissed. There will be no order as to costs.

    S.M.                                                     Appeals dismissed.