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Lehna Singh And Others v. Punjab State Through...
Factual and Procedural Background
Two writ petitions concerning the same subject-matter were heard together: C.W. 2260 of 1968 and C.W. 1959 of 1969 (both titled Lehna Singh v. Punjab State). C.W. 1959 of 1969 was filed after certain Service Rules were amended following institution of C.W. 2260 of 1968.
The petitions involve several petitioners and multiple respondents. Petitioners 1–4 are common to both petitions; C.W. 2260 of 1968 has Avtar Singh as petitioner 5, while C.W. 1959 of 1969 has Hari Mohan Lal and Parkash Chand Kakar as petitioners 5 and 6. The common respondents include the Punjab State, the Director, Public Relations, Punjab, Chandigarh, and Amar Kant. Additional respondents differ between the petitions and are identified in the opinion.
The factual matrix concerns promotions and appointments in the Public Relations Department: petitioners occupying various subordinate and officiating posts (Head Assistant, Article Writer, Assistant, Copy Writer, Sales Manager, Accountant, etc.), the appointment and later regularisation of Amar Kant as Public Relations Officer (initially temporary appointment in June 1962; order of regularisation dated October 10, 1968 purporting effect from July 6, 1962, by the President of India in relaxation of Rule 9(h)(i) of the Gazetted Service 1958 Rules), and a November 19, 1968 set of amendments to both the Gazetted Service 1958 Rules and the Class III Non-Gazetted Service 1958 Rules that altered recruitment and promotion channels.
Petitioners challenged the validity and effect of the amendments and certain appointments; respondents defended the amendments and the appointments, asserting procedural regularity or other justifications. The court considered whether the amendments adversely altered the petitioners' conditions of service within the meaning of Section 82(6) of the Punjab Re-organisation Act, and whether certain appointments (including Amar Kant's and several promoted officers) were valid.
Legal Issues Presented
- Whether the amendment of Rule 9(h)(i) of the Punjab Public Relations Department (Gazetted) Service Rules, 1958 (by notification dated November 19, 1968), is valid in view of Section 82(6) of the Punjab Re-organisation Act, particularly because no prior approval of the Central Government was obtained.
- Whether the amendments to the Class III Non-Gazetted Service 1958 Rules (also by notification dated November 19, 1968) are valid and, if not wholly valid, to what extent they are inapplicable to persons in service before the appointed day (November 1, 1966).
- Whether the appointments/promotions of specific respondents (notably Amar Kant and respondents 3–7 in C.W. 1959 of 1969) to the posts of Public Relations Officer / District Public Relations Officer were valid under the applicable rules and whether those appointments should be quashed.
- Whether the changes complained of violate Articles 14 and 16 of the Constitution (i.e., whether they result in unconstitutional discrimination or improper classification).
Arguments of the Parties
Petitioners' Arguments
- The November 19, 1968 amendment to Rule 9(h)(i) of the Gazetted Service Rules restricted the channel of promotion by excluding Head Assistants, Article Writers, Assistants and Sales Managers from selection to Public Relations Officer and District Public Relations Officer, thereby altering their conditions of service to their disadvantage without the prior approval of the Central Government as required by Section 82(6) of the Punjab Re-organisation Act.
- The amendments work disadvantage to the petitioners and amount to discrimination among a previously unified class (Head Assistants, Article Writers, Assistants, Sales Managers and Assistant Public Relations Officers), raising Article 14 and 16 challenges.
- The appointments/promotions of certain respondents to the posts of District Public Relations Officer / Public Relations Officer were contrary to the recruitment rules and should be quashed. Specifically, promotions made without compliance with the Gazetted Service Rules are challenged.
Respondents' Arguments
- The respondents conceded that no prior Central Government approval was obtained for the November 19, 1968 amendment but contended that the amendment did not, in substance, completely block promotion channels for the affected categories because they could first be promoted as Assistant Public Relations Officers under the amended Non-Gazetted Service Rules and thereafter be eligible for selection as Public Relations Officers or District Public Relations Officers.
- Relying on State of Mysore v. G.N. Purohit (and State of Orissa v. Durga Charan Das), respondents argued that changes affecting chances of promotion do not necessarily amount to variation of "conditions of service" protected by the proviso to the Re-organisation Act.
- Regarding Amar Kant, respondents relied on the approval by the Punjab Public Service Commission and subsequent regularising order issued by the President of India (October 10, 1968), arguing for validity or regularisation of his appointment despite initial ineligibility under the unamended rules.
- Some appointments were defended on the basis that they were temporary/ad hoc, made in the interest of Government work, and in certain cases later approved or continued with the Public Service Commission's consent.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| State of Mysore v. G.N. Purohit, 1967 Ser LR 753 (SC) | Held (as cited) that chances of promotion are not conditions of service for the purpose of the proviso to the relevant Re-organisation Act provision. | The respondents relied on this authority to argue that altered promotion prospects did not amount to a protected change of conditions of service. The court distinguished it, holding it inapplicable where the channel of promotion has been completely blocked (as was found to be the case here). |
| State Of Orissa v. Durga Charan Das, AIR 1966 SC 1547 | Cited in support of the proposition that chances of promotion are not conditions of service (as authority relied on in Purohit). | Cited by respondents in support of Purohit. The court treated these authorities as not controlling where the amendment removes a channel of promotion altogether rather than merely postponing chances of promotion. |
| Mohammed Bhakar v. Y. Krishna Reddy, Civil Appeal No. 811 of 1968 (decided Apr 15, 1968) | Held that any rule which affects the promotion of a person relates to his conditions of service, hence changes require Central Government approval under the proviso to the States Reorganisation Act (sub-section (7) of S.115), language materially similar to Section 82(6) of the Punjab Reorganisation Act. | The court relied on this authority by parity of reasoning to hold that the amendment that obstructed an existing channel of promotion altered conditions of service and therefore required prior Central Government approval; absence of such approval rendered the amendment invalid. |
| Sant Ram Sharma v. State of Rajasthan, 1967 Ser LR 906; AIR 1967 SC 1910 | Principle that Government cannot amend or supersede statutory rules by administrative instructions; where rules are silent Government may fill gaps but cannot contravene existing rules. | Used to support the proposition that appointments must conform to statutory/service rules; administrative action cannot contravene those rules and cannot regularise appointments made contrary to statutory rules. |
| All India Station Masters' & Assistant Station Masters' Association v. General Manager, Central Railway, AIR 1960 SC 384 | Observation that different classes of employees are governed by their own rules of recruitment, promotion, seniority etc., and recruitment/promotions must follow those rules. | The court invoked these observations to emphasize that where rules exist for a class, appointments and promotions must comply with those rules; non-compliance renders appointments invalid. |
Court's Reasoning and Analysis
The court proceeded in structured steps:
- Identified the critical statutory constraint: Section 82(6) of the Punjab Re-organisation Act (paralleling provisions in the States Reorganisation Act) prohibits variation to the disadvantage of conditions of service applicable immediately before the appointed day, except with previous approval of the Central Government. It was admitted that no such approval was obtained before the November 19, 1968 amendments.
- Analysed the unamended Rule 9(h)(i) of the Gazetted Service 1958 Rules (as at the appointed day, November 1, 1966), which permitted selection to Public Relations Officer and District Public Relations Officer from among Head Assistants, Assistant Public Relations Officers, Article Writers, Assistants and Sales Managers — thus these categories were on par for selection.
- Examined the effect of the November 19, 1968 amendment which confined promotion to Assistant Public Relations Officers (and introduced direct appointment and transfer/deputation subject to qualifications), thereby excluding Head Assistants, Article Writers, Assistants and Sales Managers from direct selection to Public Relations Officer posts. The court concluded this amendment reduced the earlier promotion channel and therefore changed the conditions of service of those categories to their disadvantage — a change that required prior Central Government approval under Section 82(6).
- Considered and rejected the respondents' contention that the channel was not blocked because the affected officers could first be promoted to Assistant Public Relations Officer under the amended Non-Gazetted Rules and thereafter be eligible for promotion. The court noted that: (a) the amendment effectively placed these categories at a lower rank relative to Assistant Public Relations Officers; (b) differing eligibility criteria and conditions (e.g., graduate requirement, service length and age limits for certain selections) meant practical impediments and discrimination; and (c) Sales Managers were completely excluded from eligibility under the amendments.
- Distinguished State of Mysore v. G.N. Purohit and State of Orissa v. Durga Charan Das — those cases addressed changes that postponed promotion chances but did not block channels of promotion and thus did not necessitate Central approval. By contrast, the present amendment closed a previously available channel of promotion.
- Relied upon Mohammed Bhakar v. Y. Krishna Reddy to support the principle that any rule affecting promotion pertains to conditions of service and hence, absent Central approval, such a rule would be invalid in the reorganisation context. Applying that reasoning, the court concluded the amendment to Rule 9(h)(i) of the Gazetted Service 1958 Rules was invalid and had to be quashed.
- Evaluated the amendments to the Class III Non-Gazetted Service 1958 Rules. The court held that most of those amendments could not be struck down merely because they expanded categories eligible for selection as Assistant Public Relations Officers, especially since the number of Assistant Public Relations Officer posts was increased from 1 to 29. However, the court directed that Rule 9(d)(iv) of the Non-Gazetted Rules shall not apply to Assistants who were in service before November 1, 1966; to such Assistants, the former Rule 9(d)(i) (selection from Assistants with three years' experience) would apply.
- Addressed constitutional challenge under Articles 14 and 16 (discrimination/unequal treatment). The court found no force in the argument that the government could not change classification: it is open to the government to change classification from time to time and Articles 14 and 16 do not unduly fetter that right in the circumstances presented.
-
Examined individual appointments:
- Amar Kant: Although his appointment as Public Relations Officer was held to be invalid from the start (because as a Rural Publicity Supervisor he was not eligible under Rule 9(h)(i) and the claimed relaxation was not properly demonstrated), the court declined to quash his appointment because of laches on the petitioners' part (they did not challenge the appointment for many years), the passage of time (over six years before challenge), the apparent competence of Amar Kant, and the hardship and complications that quashing would cause. The court also rejected the claimed basis for regularisation by mere relaxation without a demonstrable order under Rule 15 and held that PSC approval alone could not validate an appointment made contrary to rules; nonetheless, equitable considerations led to non-quashing.
- Siri Ram Arsh (respondent 6 in C.W. 2260 of 1968): Appointed ad hoc and temporarily to look after a specific Urdu monthly; the court accepted facts in the respondents' return (petitioners did not replicate) and held his ad hoc temporary appointment could not be quashed in the circumstances.
- Respondents 3–7 in C.W. 1959 of 1969 (Puran Chand, Sukhpal Vir Singh Hasrat, Babu Singh, Jagmohan Singh, Rajbir Singh): These officers had been promoted on ad hoc/temporary basis as District Public Relations Officers. The court found their appointments and continuance as District Public Relations Officers to be contrary to the Gazetted Service 1958 Rules and liable to be quashed (noting varied approval statuses with the Public Service Commission and the timing of challenges).
- Observed the discretionary nature of relief under Article 226 and that equitable considerations (laches, hardship) influenced the remedy sought against Amar Kant.
Holding and Implications
Holding (core rulings):
- The amendment of Rule 9(h)(i) of the Punjab Public Relations Department (Gazetted) Service Rules, 1958 (by notification dated November 19, 1968) is invalid and is quashed.
- The amendments to the Class III Non-Gazetted Service 1958 Rules are generally valid except that Rule 9(d)(iv) of the Non-Gazetted Service Rules shall not apply to Assistants who were in service before November 1, 1966; those Assistants shall be governed by the pre-amendment Rule 9(d)(i).
- C.W. 2260 of 1968 is dismissed (petition as to Amar Kant dismissed); the court declined to quash the appointment of Amar Kant despite holding it invalid in law due to laches and equitable considerations (no order as to costs in that petition).
- C.W. 1959 of 1969 is accepted in respect of respondents 3 to 7; the orders appointing respondents 3–7 as District Public Relations Officers are quashed.
- Respondents 1 and 2 (the State and the Director) are directed to consider the claims of petitioners while making appointments as Public Relations Officers and District Public Relations Officers in accordance with the Rules and the court's observations.
- Costs: The parties are directed to bear their own costs in the circumstances described by the court; C.W. 2260 was dismissed without any order as to costs, and overall parties bear their own costs.
Implications:
- The direct effect is the invalidation of the specific amendment to the Gazetted Service Rules that removed certain categories from being eligible for selection as Public Relations Officers and District Public Relations Officers without Central Government approval, restoring that aspect of the pre-amendment position for those affected.
- The court preserved most of the Non-Gazetted Service amendments but carved out transitional protection for Assistants in service before the appointed day, thereby protecting some pre-existing promotion rights.
- The appointment of Amar Kant, although found not to conform with the rules, was not quashed because of delay and equitable considerations; hence practically his position continues despite legal infirmity in the recruitment process.
- No novel legal principle was laid down beyond application and reconciliation of existing authorities concerning (a) the meaning of "conditions of service" in the reorganisation context, (b) the requirement of Central Government approval where conditions are varied to the disadvantage of allottees, and (c) the principle that appointments must conform to statutory rules. The decision applies those existing principles to the facts of these petitions and orders specific relief accordingly.
Order: The court disposed of both petitions in accordance with the holdings above and directed respondents to act in conformity with the court's observations when making future appointments; parties to bear their own costs.
1. This judgment will dispose of C.W 2260 of 1968, Lehna Singh v. Punjab State, and C.W 1959 of 1969, Lehna Singh v. Punjab State, as they relate to the same subject-matter. In fact the latter writ petition was filed after the rules were amended subsequent to the institution of the former writ petition.
2. Petitioners 1 to 4 are common to both the petitions, The 5th petitioner in C.W 2260 of 1968 is Avtar Singh, who is not a party to C.W 1959 of 1969. In that petition, Hari Mohan Lal and Parkash Chand Kakar are petitioners 5 and 6. The common respondents to the two petitions are the Punjab State, the Director, Public Relations, Punjab, Chandigarh, and Amar Kant. The other respondents to C.W 2260 of 1968 are P.N Prashar, Sulakhan Singh and Siri Ram Arsh, while the other respondents to C.W 1959 of 1969 are Puran Chand, Sukhpal Vir Singh Hasrat, Babu Singh, Jagmohan Singh and Rajbir Singh. They are respondents 3 to 7 respectively and Amar Kant is respondent 8.
3. The facts are that petitioner 1 is a permanent Assistant in the scale of Rs. 116-8-180/10-250 and has been officiating as Head Assistant in the scale of Rs. 250-10-350, since November 2, 1966. The pay-scale has now been revised and raised to Rs. 300-20-500. Petitioner 2 is a confirmed Article Writer in the grade of Rs. 150-10-300 and is now officiating as Copy Writer in the pay-scale of Rs. 200-15-380-20-500. Petitioner 3 was appointed as an Article Writer through the Punjab Public Service Commission on April 18, 1957, and has since been confirmed in that post. His present scale of pay is Rs. 200-450. Petitioner 4 is a confirmed Assistant and is officiating as Sales Manager in the pay-scale of Rs. 200-10-280/15-430/20-450. Petitioner 5 in C.W 2260 of 1968, is a confirmed Assistant in the scale of Rs. 116-250 and is at present officiating as Sales Manager in the pay-scale of Rs. 150-10-250. Petitioner 5 in C.W 1959 of 1969 is a confirmed Clerk in the scale of Rs. 110-200 since December 1, 1952, and is at present officiating as an Assistant in the scale of Rs. 160-400, while petitioner 6 is a confirmed Clerk and has been officiating as an Accountant in the scale of Rs. 160-400 since June 22, 1966. The post of an Accountant is interchangeable with that of an Assistant. Amar Kant, who is a respondent in both the petitions, was recruited as Rural Publicity Supervisor on April 11, 1957, and was appointed as District Public Relations Officer on temporary basis on June 29, 1962, for a period not exceeding six months. He was, however, continued in that post, and, on August 20, 1966, he was appointed Public Relations Officer in the Public Relations Department on regular basis, by the President of India, in consultation with the Punjab Public Service Commission. At that time, the State of Punjab was under President's Rule. On October 10, 1968, when the State of Punjab was again under President's Rule, the President of India regularised the promotion and appointment of Amar Kant, Rural Publicity Supervisor, as Public Relations Officer in the Public Relations Department, in the scale of Rs. 250-25-750, with effect from July 6, 1962, in relaxation of Rule 9(h)(i) of the Punjab Public Relations Department (Gazetted) Service Rules, 1958 (hereinafter called the Gazetted Service 1958 Rules). He is since then continuing in that post. The order dated October 10, 1968, was issued by the President of India during the pendency of C.W 2260 of 1968, and this order has been challenged in C.W 1959 of 1969. The particulars of respondents 3 and 5 in C.W 2260 of 1968 need not be stated because respondent 3 has since been reverted from the post of District Public Relations Officer and respondent 5 has been recruited as District Public Relations Officer by direct appointment, and, therefore, the petitioners do not challenge his appointment. Respondent 6 in that petition, Siri Ram Arsh was recruited as Field Publicity Assistant on an ad hoc basis on November 16, 1965, and was promoted to the post of Public Relations Officer on an ad hoc and purely temporary basis with effect from May 28, 1968. The particulars of respondents 3 to 7 in C.W 1959 of 1969 are as under:
(1) Puran Chand, respondent 3, joined service as Rural Publicity Supervisor on June 24, 1959. He is only a Matriculate and was appointed on ad hoc basis but he continued in that post till he was temporarily appointed to the post of Field Publicity Assistant on September 1, 1965, in the pay-scale of Rs. 200-450. He was promoted on ad hoc basis to the post of District Public Relations Officer in August, 1968 in the scale of Rs. 250-750, which has now been revised to Rs. 350-900. The promotion was made on purely temporary basis for a period of six months or till the recommendation by the Punjab Public Service Commission to fin up the post on regular basis, whichever was earlier, in the interest of Government work. The approval of the Commission was obtained for his continuance beyond the period of six months, with the result that he is continuing on temporary basis as District Public Relations Officer with the approval of the Public Service Commission.
(2) Shri Sukhpal Vir Singh Hasrat, respondent 4, was appointed as a Field Publicity Supervisor on October 10, 1960, and as a Field Publicity Assistant on September 1, 1965. He was later promoted as District Public Relations Officer in August, 1968, along with Puran Chand respondent 3, in the pay-scale of Rupees 250-750, His promotion was also made on purely temporary basis but he is continuing in the post with the approval of the Public Service Commission.
(3) Babu Singh, respondent 5, was appointed as Field Publicity Supervisor on October 28, 1957, and as Field Publicity Assistant on September 1, 1965. He was appointed as District Public Relations Officer on September 2, 1968, without obtaining the approval of the Public Service Commission. The approval of the Public Service Commission has since been obtained and he is also continuing in the post of District Public Relations Officer.
(4) Jagmohan Singh, respondent 6, was appointed as a Field Publicity Supervisor on September 30, 1961, and as Field Publicity Assistant on September 1, 1965. He was promoted as Public Relations Officer on March 12, 1969, against a vacant post on ad hoc basis for a period of six months. In the return it is stated that the Punjab Public Service Commission has been requested to accord necessary approval to his continuance beyond the period of six months.
(5) Rajbir Singh, respondent 7, was appointed as Field Publicity Supervisor on November 8, 1962, and as Field Publicity Assistant on September 1, 1965. He was promoted as a Public Relations Officer by order dated April 30, 1969, on ad hoc basis for a period of six months against a vacant post. The approval of the Public Service Commission has been sought with regard to his continuance beyond the period of six months.
4. The particulars of the respondents have been stated in order to emphasise that none of these respondents was eligible for promotion as Public Relations Officer under the Gazetted Service 1958 Rules. Rule 9(h) of these Rules provides for the method of recruitment to the posts of Public Relations Officer, District Public Relations Officers. Editors and Radio and Press Liaison Officer as under:—
“(i) by selection from among Head Assistants, Assistant Public Relations Officers, Article Writers, Assistants and Sales Manager, or
(ii) by transfer or deputation of a person already in the service of the Government of a State or of the Union or
(iii) by direct appointment.”
5. The Explanation to Rule 9 reads as under:—
“Superintendent, Head Assistants, Art. Assistants, Assistants, Assistant Public Relations Officers, Article Writers. Sales Managers, Technical Advisers and Statistical Assistant occurring in this rule belong to Class III Non-Gazetted Sendee of the Public Relations Department.”
6. From this Explanation, it is clear that under clause (i) of Rule 9(h), the selection was to be made from among certain categories of persons included in Class III Non-Gazetted Service of the Public Relations Department and no outsiders were eligible for the promotion under the Rules. This rule was amended by notification dated November 19, 1968, by the Punjab Public Relations Department (Gazetted) Service (First Amendment) Rules, 1968, and Cl. (h) of R. 9 was substituted by the following:—
“(h) in the case of Public Relations Officers, District Public Relations Officers, Editors and Radio and Press Liaison Officers:—
(i) by direct appointment; or
(ii) by promotion from amongst the Assistant Public Relations Officers; or
(iii) by transfer or deputation of a person already in the service of the Government of a State or of the Government of India, possessing the necessary qualifications prescribed for direct appointment.
Provided that forty per cent of the vacancies shall be filled in by direct appointment.”
7. The amendment thus made the Head Assistants. Article Writers, Assistants and Sales Managers ineligible for selection as Public Relations Officers or District Public Relations Officers and the method of recruitment by promotion was only confined to the Assistant Public Relations Officers who also belonged to Class III Non-Gazetted Service like the other categories who were previously eligible for promotion as Public Relations Officers or District Public Relations Officers.
8. It is also necessary to refer to the Punjab Public Relations Department (Class III) Non-Gazetted Service Rules, 1958 (hereinafter called the Class III Non-Gazetted Service 1958 Rules). Rule 8 prescribed the qualifications for direct appointment to the post of Assistant Public Relations Officer as a degree of a recognised University with experience of Government service. Rule 9(d) provided for the method of recruitment in the case of Assistant Public Relations Officer as under:—
“(i) by selection from among the Assistants, provided they have three years' experience; or
(ii) by transfer or deputation of a person already in the service of the Government of a State or of the Union; or
(iii) by direct appointment.”
9. These rules were also amended by notification dated November 19, 1968, and in Rule 8 the entry, with regard to the qualifications against Assistant Public Relations Officer, was substituted by the following:—
“(a) A Bachelor's degree in Science or Arts. Preference will be given to those with additional qualifications in Sociology Social work and Journalism,
(b) An experience of three years in
(i) a Publicity Organisation, or
(ii) in a recognised organisation connected with social work, or
(iii) in the Public Relations Department as a Publicity Supervisor or Field Publicity Assistant or Information Assistant or as an Article Writer, or
(iv) in a Newspaper office connected with editing of news or writing of features etc.”
10. Clause (d) of Rule 9 was substituted by the following:—
“(d) In the case of Assistant Public Relations Officer:—
(i) by direct appointment; or
(ii) by transfer or deputation of a person already in the service of the Government of the State or of Government of India, possessing the necessary qualifications prescribed for direct appointment; or
(iii) by promotion from amongst Copy Writers and Article Writers; or
(iv) by selection from amongst those Assistants and Head Assistants of the Public Relations Department, Punjab, who have at least 8 years of service as Assistant; are Graduates and are less than 40 years of age; or
(v) by selection from amongst those Field Publicity Assistants who are Matriculates and are below 50 years of age.”
11. It is specified that 60% of the posts shall be filled in the manner provided in subclauses (i) and (ii) and 40% in the mode provided in sub-clauses (iii), (iv) and (v). Appendix ‘A’ was also amended so as to increase the number of posts of Assistant Public Relations Officers to 29 in the pay-scale of Rs. 200-15-350/20-450 with Efficiency Bar at Rs. 350/-. Previously in Appendix ‘A’ to the Class III Non-Gazetted Service 1958 Rules, the number of posts of Assistant Public Relations Officer was mentioned as one in the pay-scale of Rs. 150-10-200/10-300 with Efficiency Bar at Rs. 200/-.
12. The first point to be determined is whether the amendment of Rule 9(h)(i) of the Gazetted Service 1958 Rules, by notification dated November 19, 1968, is valid. This matter has to be decided in reference to Section 82(6) of the Punjab Re-organisation Act, which reads as under:—
“82(6) Nothing in this section shall be deemed to affect on or after the appointed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to the determination of the conditions of service of persons serving in connection with the affairs of the Union or any State:
Provided that the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub-section (1) or sub-section (2) shall not be varied to his disadvantage except with the previous approval of the Central Government.”
13. It is admitted by the learned Assistant Advocate-General appearing for respondents 1 and 2, that no approval of the Central Government was obtained before the notification dated November 19, 1968, amending Rule 9(h)(i) was issued. It has therefore, to be seen whether this amendment has affected the conditions of service of the petitioners in any manner.
14. Under Rule 9(h)(i) of the Gazetted Service 1958 Rules, as it existed on the appointed day, that is, November 1, 1966, the Public Relations Officers or the District Public Relations Officers could be selected only from amongst Head Assistants, Assistant Public Relations Officers, Article Writers, Assistants and Sales Managers. By means of the amending notification, this selection has been confined only to Assistant Public Relations Officers, from which it is clear that Head Assistants. Article Writers, Assistants and Sales Managers have been debarred from being considered for selection as Public Relations Officers or District Public Relations Officers. In my opinion, therefore, it has changed the conditions of service of these categories of officers to their disadvantage which could be done only after obtaining the previous approval of the Central Government. This was a channel of promotion open to these officers which has been completely blocked, thus obstructing their further promotion. On behalf of the respondents, it has been argued that the channel of promotion of these categories of officers has not been completely blocked and they are still eligible for promotion to the posts of Public Relations Officers or District Public Relations Officers, but before being promoted to those posts, they have to be first promoted as Assistant Public Relations Officers under the notification dated November 19, 1968, amending the Non-Gazetted Service 1958 Rules.
15. I find no substance in this argument. In the first place these categories of officers have been reduced to a lower rank than that of the Assistant Public Relations Officers by the amendment. Under the unamended rules, the Assistant Public Relations Officers were at par with Head Assistants, Article Writers, Assistants and Sales Managers. Secondly, the Copy Writers and Article Writers are eligible for promotion as Assistant Public Relations Officers, whatever their academic qualifications, whereas in the case of Assistants and Head Assistants it has been provided that they should have at least eight years of service as Assistants and should be graduates and not more than 40 years in age. The Sales Managers have been completely debarred from being selected either as Assistant Public Relations Officer or District Public Relations Officer or Public Relations Officers. The amendments are, therefore, clearly to their disadvantage. The petitioners have, therefore, a genuine grievance that their conditions of service have been altered to their disadvantage without obtaining the previous approval of the Central Government.
16. It is then urged on behalf of the respondents that chances of promotion do not constitute the conditions of service. In support of this submission, reliance is placed on a judgment of their Lordships of the Supreme Court, in State of Mysore v. G.N Purohit, 1967 Ser LR 753 (SC) wherein the following observations occur (para 10 of the report):—
“It is then urged on behalf of the respondents that by changing the system from district-wise to State-wise the respondents have been very hard hit and have become very junior. It appears from the figures supplied by the respondents that there were 665 Junior Health Inspectors in the old State of Mysore on November 1, 1956, while only 48 Junior Health Inspectors were allotted to the new State of Mysore after the Act. So long as the district-wise system continued, these 48 persons would naturally have better chances of promotion in their districts but when the cadre was made State-wise, these 48 were likely to go down in the seniority as the list of 1963 actually shows. It is urged that this has affected their chances of promotion which were protected under the proviso to Section 115(7) of the Act, which lays down that the conditions of service applicable immediately before the appointed day to the case of any person allotted to the new State shall not be varied to his disadvantage except with the previous approval of the Central Government. It is said on behalf of the respondents that as their chances of promotion have been affected, their conditions of service have been changed to their disadvantage. We see no force in this argument because chances of promotion are not conditions of service. It is enough in this connection to refer to the State Of Orissa v. Durga Charan Das, AIR 1966 SC 1547.”
17. This judgment is of no help to the respondents, for the reason that in that case the channel of promotion had not been obstructed. The only effect of changing the system from district-wise to State-wise was to postpone the chances of promotion of some members of the Service who became juniors in the State-list as compared to their position in the district-list. They continued to be eligible for promotion to the higher posts to which they were entitled before the change of the system. In the instant case, the channel of promotion to the higher post of District Public Relations Officer or Public Relations Officer has been completely blocked. The matter with regard to the right to promotion being a condition of service was considered by their Lordships of the Supreme Court in Civil Appeal No. 811 of 1968 (SC), Mohammed Bhakar v. Y. Krishna Reddy decided on April 15, 1968. In that case, the point under consideration was whether a departmental examination could be prescribed for promotion to the next higher rank which was not there prior to the reorganisation of the States. The case was under sub-section (7) of Section 115 of the States Reorganisation Act, 1956, which is in the same language as Section 82(6) of the Punjab Reorganisation Act. Their Lordships observed:
“Any rule which affects the promotion of a person relates to his conditions of service and it appears to us, therefore, that unless there be the approval of the Central Government in terms of the proviso to sub-section (7) of S. 115, a rule which lays down the passing of certain departmental examinations as a condition for promotion to a person who was an allottee to the new State of Mysore would be in violation of sub-section (7) of S. 115.”
18. On the same parity of reasoning, it can be said in the present case that the provision in the amended Non-Gazetted Service 1958 Rules to the effect that Article Writers, Copy Writers, Head Assistants and Assistants have first to be selected as Assistant Public Relations Officers before being considered for selection as Public Relations Officers or District Public Relations Officers has changed the conditions of their service because prior to the amendment they were at par with the Assistant Public Relations Officers and, along with them could be considered for promotion by selection for the posts of Public Relations Officers or District Public Relations Officers. The argument that the pay-scale of Assistant Public Relations Officer has been raised from Rs. 150-10-300 to Rs. 200-15-350/20-450 has also no force because the pay-scale of Public Relations Officer and District Public Relations Officer is Rs. 250-750 and prior to the amendment, the Head Assistants. Article Writers, Assistants and Sales Managers could be selected for these higher posts carrying higher scale of pay. The amendment of Rule 9(h)(i) of the Gazetted Service 1958 Rules is, therefore, invalid and has to be quashed, but the amendments made in the Non-Gazetted Service Rules cannot be struck down on any ground except that the amendment in Rule 9(d)(iv) shall not apply to the Assistants who were in the service of the Department before November 1, 1966. To such Assistants, Rule 9(d)(i) of Non-Gazetted Service 1958 Rules shall apply.
19. The amendment in Rule 9(d)(iii), (iv) and (v) cannot be struck down on the ground that more categories of officers have been made eligible for being selected as Assistant Public Relations Officers. It is pointed out that under the unamended Rules, the selection could be made only from amongst the Assistants having three years' experience and now the selection has been extended to Copy Writers, Article Writers, Head Assistants, Assistants and Field Publicity Assistants. The answer to this argument is that the number of posts of Assistant Public Relations Officers has been increased from 1 to 29 by amending Appendix ‘A’ to the said Rules and if more categories of officers have been added from amongst whom the selection can be made, the number of posts has also correspondingly been increased, so that the rights of Assistants as on November 1, 1966, have not been affected by this amendment except to the extent indicated above.
20. I may also deal with an argument advanced by the learned counsel for the petitioners that the amendment of the Rules has worked to the disadvantage of the petitioners and is violative of Articles 14 and 16 of the Constitution. The Head Assistants, Article Writers, Assistants and Sales Managers were eligible for being selected as Public Relations Officers and District Public Relations Officers and thus all of them formed one class, but now, after the amendment, only Assistant Public Relations Officers are eligible while others have been excluded. The result is that different treatment has been accorded to one constituent of that class leading to discrimination of the other constituents of that class. I do not find any force in this argument as it is open to the Government to change the classification from time to time and Articles 14 and 16 of the Constitution do not fetter that right.
21. In the light of the unamended and amended rules, it has now to be decided whether the appointments of the respondents, whose particulars have been given above, as District Public Relations Officers were valid and in order. For that purpose. I propose to deal with the case of each respondent and I start with Amar Kant. He was originally recruited as Rural Publicity Supervisor on April 11, 1957, in the scale of Rs. 250-400, which post was kept outside the scope of non-Gazetted Service Rules or ??? Services Rules 1958. No rules for recruitment as Rural Publicity Supervisors were ever framed, and, therefore, the Government had the right to make appointments to these posts without infringing any rules. While serving as Rural Publicity Supervisor, he was appointed as District Public Relations Officer, Sangrur, on June 29, 1962, temporarily for a period not exceeding six months. It appears that a reference was made to the Punjab Public Service Commission for according approval to his appointment as District Public Relations Officer. The Public Service Commission accorded its approval on condition that the necessary relaxation in the relevant rules be made. To fulfil that condition, the notification dated October 10, 1968, was issued in relaxation of Rule 9(h)(i) of the Gazetted Service 1958 Rules. It is admitted that as Rural Publicity Supervisor he could not be considered for promotion as Public Relations Officer under Rule 9(h)(i). I have not been able to understand how the relaxation of that rule enabled the Government to promote him to the post of Public Relations Officer. The relaxation of Rule 9(h)(i) did not mean anything and could not be utilised to promote a person to the post of Public Relations Officer who was not eligible under the said rule. Clause (i) of Rule 9(h) could be amended to include Rural Publicity Supervisors in the category of officers from amongst whom the selection could be made. The rule with regard to relaxation is Rule 15 in the Gazetted Service 1958 Rules, which reads as under:—
“15. Powers to relax rules.—Where the Government is satisfied that the operation of any of these rules causes undue hardship in any particular case, it may by order dispense with or relax the requirements of that rule to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner.”
22. As I read this rule, it can be applied only to the members of the service who are governed by these rules and in whose cases the operation of any rule causes undue hardship but this power of relaxation cannot be exercised in favour of a new entrant to the service as it cannot be said that any rule causes undue hardship to him. Secondly, no order has been produced before me to prove that the Government passed any order to the effect that it was satisfied that the operation of Rule 9(h)(i) caused undue hardship to Amar Kant and it was, therefore, necessary to relax the requirements of that rule and to what extent and subject to what conditions. The appointment and promotion of Amar Kant to the post of Public Relations Officer, to begin with, was not in accordance with the rules and could not be regularised by relaxing one of the rules relating to recruitment. Even the approval of the Public Service Commission did not make the invalid appointment valid. It can be said to be well settled by now that where rules of service exist, the Government has to make the appointments to that Service in accordance with those rules and not contrary to those rules. Where no rules exist, the Government has the right to make the appointments by executive decisions or instructions. It was held by their Lordships of the Supreme Court in Sant Ram Sharma v. State of Rajasthan, 1967 Ser LR 906 : (AIR 1967 SC 1910) that—
“Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point, Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed”
23. In All India Station Masters' and Assistant Station Masters' Association Delhi v. General Manager, Central Railway, AIR 1960 SC 384, their Lordships observed as under:—
“So multifarious are the activities of the State that employment of men for the purpose of these activities has by the very nature of things to be in different departments of the State and inside each department, in many different classes. For each such class there are separate rules fixing the number of personnel of each class, posts to which the men in that class will be appointed, questions of seniority, pay of different posts, the manner in which promotion will be effected from the lower grades of pay to the higher grades, e.g, whether on the result of periodical examination or by seniority, or by selection or on some other basis and other cognate matters. Each such class can be reasonably considered to be a separate and in many matters independent entity with its own rules of recruitment, pay and prospects and other conditions of service which may vary considerably between one class and another. A member joins a particular class on recruitment; he leaves the class on retirement or death or dismissal, discharge, resignation or other modes of termination of service, or by joining another class of employees whether by promotion thereto or direct recruitment thereto on passing the examination or by selection in some other mode.”
24. From these observations, it follows that if there are rules for any class, that class must be governed by those rules, and the recruitments, promotions, seniority etc. must be in accordance with those rules. Recruitment cannot be made in violation of those rules. I am, therefore of the opinion that the appointment of Amar Kant as Public Relations Officer was invalid right from its inception and cannot be said to have been regularised by the order of the President of India dated October 10, 1968. However, it has to be determined whether the order of his appointment as Public Relations Officer should be quashed in these proceedings, in view of the time that has already expired. He was appointed as Public Relations Officer on June 29, 1962, in a temporary capacity and was continued in that post this appointment was regularised after consultation with the Public Service Commission. The petitioners did not raise their little finger to challenge that appointment till they filed C.W 2260 of 1968 on July 20, 1968, that is, after more than six years. The petitioners have also not stated whether they were eligible for appointment as Public Reliations Officer/District Public Relations Officer in June, 1962, and if they were eligible, it has not been explained why they did not challenge the appointment of Amar Kant at that time. According to the qualifications prescribed in the rules for the post of Public Relations Officer/District Public Relations Officer, this respondent is fully qualified to hold that post. In fact, the return of respondents 1 and 2 states that he is an efficient officer who has been doing very good work for the Department. The remedy under Article 226 of the Constitution is discretionary and has to be exercised on just and equitable grounds. In view of the laches on the part of the petitioners, I am not inclined to quash the appointment of Amar Kant as District Public Relations Officer/Public Relations Officer particularly because the quashing of that order after the lapse of more than eight years will cause a very great hardship to him and will also create complications for him and respondents 1 and 2.
25. I have already stated above that P.N Prashar, respondent 3 in C.W 2260 of 1968, has since been reverted because he did not appear before the Public Service Commission. The petitioners, therefore, do not seek any relief against him. The petitioners also seek no relief against Sulakhan Singh, respondent 5 in C.W 2260 of 1968, since he has been appointed as District Public Relations Officer as a direct recruit.
26. Shri Ram Arsh, respondent 6 in C.W 2260 of 1968, was originally recruited as Field Publicity Assistant on a purely ad hoc basis on November 16, 1965, in the pay-scale of Rs. 250-450. He was placed on one year's probation but this period could be extended by the competent authority in its discretion. The post was stated to be purely temporary and his ??? could be ??? at any time without assigning any reason or giving any notice to him or pay in lieu thereof. He was promoted to the post of Public Relations Officer on ad hoc and purely temporary basis by order dated May 8, 1968, by the Government. It is stated in the returh that his appointment as Public Relations Officer was made to look after the Urdu monthly journal “Pasban”, for which job he is the only qualified and suitable person available. Prior to his promotion also, he was assisting the editor of the journal “Pasban” and that a requisition has since been sent to the Public Service Commission for recommending a suitable person to fill up this post through an open competition. Although the return was filed on November 1, 1968, containing these facts, no replication has been filed by the petitioners to controvert the allegations that he was the only qualified person to fill that post to which he was appointed on ad hoc and purely temporary basis. He has not been made a respondent in C.W 1959 of 1969. In view of these facts, his appointment as Public Relations Officer on ad hoc and purely temporary basis, that is, till the Public Service Commission recommends a suitable person, cannot be quashed.
27. For the reasons given above, C.W 2260 of 1968 is dismissed but without any order as to costs.
28. C.W 1959 of 1969.
29. Now I proceed to consider the cases of respondents 3 to 7 in C.W 1959 of 1969. They were originally appointed as Field Publicity Supervisors and later on, with effect from September 1, 1965, they were all appointed as Field Publicity Assistants. Respondents 3 and 4 were promoted as District Public Relations Officers by order dated August 5, 1968, Babu Singh, respondent 5, was promoted as District Public Relations Officer by order dated August 27, 1968, Jagmohan Singh, respondent 6, with effect from March 12, 1969 and Rajbir Singh, respondent 7, with effect from April 30, 1969. Their appointment orders show that the appointments were made by way of promotion against vacant posts. Originally, they were appointed for a period of six months without the approval of the Public Service Commission. The approval of the Public Service Commission was, however, obtained with regard to respondents 3, 4 and 5 while the Public Service Commission has not accorded necessary approval to the continuance of respondents 6 and 7 beyond the period of six months. The appointments of all these respondents as District Public Relations Officers by way of promotion are against the Gazetted Service 1958 Rules and were challenged quite promptly by the petitioners who were not considered for selection although they allege that they were eligible for the posts of District Public Relations Officers. Respondents 6 and 7 could be appointed as Assistant Public Relations Officers in view of the notification dated November 19, 1968, amending Class III Non-Gazetted Service 1958 Rules, and not as District Public Relations Officers. The appointments and continuance in office as District Public Relation Officer of respondents 3 to 7 are, therefore, liable to be quashed.
30. For the reasons given above, C.W 1959 of 1969 is accepted in respect of respondents 3 to 7, the orders of whose appointments as District Public Relations Officers are hereby quashed.
31. The petition as against Amar Kant is, however, dismissed. Respondents 1 and 2 are directed to consider the claims of the petitioners while making appointments as Public Relations Officers and District Public Relations Officers in accordance with the Rules and the observations made above. In the circumstances, the parties are left to bear their own costs.
32. Order accordingly.
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