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Bachittar Singh Grewal And Another (Petitioners) v. The State Of Punjab And Others (S).

Punjab & Haryana High Court

Jan 3, 1973

Judgment

Subsequent
References

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Judicial Opinion Summary — Pritam Singh Pattar, J.

Factual and Procedural Background

This writ petition was filed under Articles 226 and 227 of the Constitution of India by Bachittar Singh Grewal and Prem Nath (P.N.) Kansal, District Food and Supplies Officers, challenging the order dated 28 July 1971 (Annexure D‑1) by which Madan Gopal Garg (respondent No. 3) was declared senior to them. The petitioners originally joined as Assistant Purchase Inspectors in the erstwhile State of PEPSU and were allocated to the reorganised State of Punjab on 1.11.1956; they were senior to respondent No. 3 at that time.

Key events in the chronology (as reflected in the opinion):

July 1960: A departmental committee declared the petitioners unsuitable for promotion and promoted Madan Gopal Garg as Assistant Food and Supplies Officer (allegedly a stop‑gap arrangement according to petitioners; respondents assert it was a regular promotion) with effect from 2 July 1960. Petitioner No. 1 filed a representation against that promotion.
February 1961: Respondent No. 3 was reverted for want of post.
19 December 1962: Petitioners and respondent No. 3 were promoted as Assistant Food and Supplies Officers; a tentative gradation list showed the petitioners senior to respondent No. 3.
Respondent No. 3 filed a memorial claiming seniority; on 28 July 1971 the President of India accepted that memorial and refixed his seniority (Annexure D‑1), placing him at serial No. 11 and the petitioners at Nos. 12 and 13. The order also declared his seniority as District Food and Supplies Officer to be above the petitioners.
The petitioners challenged Annexure D‑1 by this writ petition, alleging illegality, arbitrariness, denial of natural justice (no copy of the memorial supplied, no personal hearing), and that the order was not a speaking order with reasons.

Procedurally, notices were issued, returns were filed by respondents (admitting core facts but defending the impugned order), and the matter proceeded to argument before the Court. The Court examined executive files during hearing.

Legal Issues Presented

Whether the impugned administrative order (Annexure D‑1) fixing/refixing the seniority of Madan Gopal Garg above the petitioners was invalid for want of being a "speaking order" (i.e., lacking reasons) and therefore violative of the principles of natural justice.
Whether the acceptance of respondent No. 3's memorial by the Government in relation to fixation of seniority involved the exercise of quasi‑judicial functions (which would attract principles of natural justice) or was an administrative act not requiring a speaking order or a personal hearing.
Whether petitioners (particularly petitioner No. 1, who remained under suspension for confirmation) had any enforceable statutory right to the seniority they claimed such that relief in the nature of writ (mandamus or quashing) should be granted.
Whether there was any manifest breach of statutory rules or other legal infirmity in the Government's decision to refix seniority in favour of respondent No. 3.

Arguments of the Parties

Petitioners' Arguments (as argued by Mr. M.R. Agnihotri)

It was improper for the State Government to accept respondent No. 3's memorial after the State had opposed respondent No. 3's writ (C.W. No. 2127 of 1969) by filing an affidavit; accepting the memorial was administratively improper and contemptuous of proper procedure.
The impugned order dated 28.7.1971 (Annexure D‑1) is not a speaking order and contains no reasons, and hence is liable to be quashed.
The petitioners were given notice of the memorial but not furnished a copy despite repeated requests; as a result they could not make effective representations or be personally heard — a denial of opportunity to be heard.
The order is substantively wrong because the petitioners were senior to respondent No. 3; therefore the refixation of seniority in his favour is illegal and invalid on merits.

Respondents' Arguments (State respondents and respondent No. 3)

The departmental committee in July 1960 considered suitability for promotion and declared the petitioners unsuitable and respondent No. 3 suitable; respondent No. 3 was promoted on a regular basis (not stop‑gap) on 2 July 1960. Representations by the petitioners against that promotion were rejected.
When a tentative seniority list was prepared in December 1962 the petitioners were shown senior to respondent No. 3; respondent No. 3 filed a memorial to the Governor claiming seniority over them and the memorial was accepted after due consideration. The petitioners filed representations against that memorial which were considered and rejected.
The impugned order is legal, valid and justified; no statute or rule was violated and no manifest injustice was done to the petitioners.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State of Punjab v. Bakhtawar Singh, 1972 S.L.R. 85	Quasi‑judicial removal orders must be speaking orders showing application of mind and reasons; absence of such reasons renders the order vulnerable.	The Court distinguished this case: Bakhtawar Singh involved removal from a statutory/board membership (quasi‑judicial context) and therefore required a speaking order; the present case concerned administrative fixation of seniority, not quasi‑judicial removal, so the principle did not apply.
Rajinder Pal Abrol v. State of Punjab, 1971 S.L.R. 130	The competent authority must show application of judicial mind in the order itself; reasons should be apparent from the order in quasi‑judicial contexts.	Distinguished on the same basis as Bakhtawar Singh: Abrol addressed removal from Board membership (quasi‑judicial). The Court held Abrol's rule inapplicable to an administrative seniority decision.
Shri K.D. Vasudeva I.A.S v. Union of India, 1971 S.L.R. 487	Disturbing previously fixed seniority is a quasi‑judicial act and requires observance of principles of natural justice (notice and hearing).	The Court noted this Single Bench ruling but treated it as contrary to Division Bench authorities; ultimately the Court followed Division Bench precedents holding that fixing/altering seniority is administrative and not inherently quasi‑judicial.
Prithpal Singh Sanghera v. Secretary to Government Punjab, I.L.R. 1970 (2) Punjab 673	Acceptance of a government servant's representation regarding promotion/seniority is an administrative act, not a quasi‑judicial function requiring judicial approach or speaking order.	Applied: The Court relied on this Division Bench authority to support the view that the Government's acceptance of respondent No. 3's memorial was administrative and did not require a speaking order or quasi‑judicial procedures.
Ranjit Singh I.P.S v. The President of India, 1971 S.L.R. 561	Support for the proposition that administrative decisions on service matters can be altered by government and are not necessarily quasi‑judicial.	Referred to as consistent with the view that fixation/alteration of seniority is administrative; used to bolster the Court's conclusion.
S.A.F. Abbas v. State of Bihar, A.I.R. 1970 Patna 397 (Full Bench)	Fixing and altering seniority are administrative matters; rules of natural justice (such as personal hearing) have no application to the process of fixing seniority in administration.	Applied: The Full Bench's reasoning was treated as directly applicable and supportive of the conclusion that the Government's act in accepting respondent's memorial was administrative and not subject to natural justice requirements.
Swadeshi Cotton Mills Co. Ltd. v. R.J. Holley, 1962 (1) Supreme Court Appeals 55	Where a statute requires formation of an opinion before acting, the absence of a recital of formation in the order does not invalidate it if evidence outside the order (e.g., executive file) shows the opinion was in fact formed; burden shifts accordingly.	Applied: The Court inspected executive files and held that although Annexure D‑1 did not recite reasons, the executive record showed relevant consideration and formation of opinion, so absence of recital in the order did not invalidate it.
Dr. Kartar Singh Rai v. The State of Punjab, 1969 S.L.R. 79 (Full Bench)	Persons officiating in a cadre and persons confirmed in that cadre do not constitute the same class for seniority claims; confirmed officers form a separate class from officiating officers.	Applied to hold petitioner No. 1 (not confirmed as Assistant Food and Supplies Officer) could not claim seniority over respondent No. 3 and petitioner No. 2 (both confirmed), so petitioner's claim failed as to that ground.
Sunder Lal v. The State of Punjab, 1970 S.L.R. 59	The Government can revise a prior decision on confirmation or seniority if it discovers a bona fide mistake; such revision is not constrained by Article 311 in the absence of specific circumstances.	Applied in support of the proposition that Government may alter seniority or confirmation decisions upon discovering error; used to sustain the validity of the 28.7.1971 order.
Lekhraj Sathramdas Lalvani v. (In Both The Appeals), A.I.R. 1966 S.C. 334	Writ of mandamus is appropriate only to compel performance of statutory duties; contractual obligations or discretionary administrative acts are generally not enforceable by mandamus under Article 226.	Applied to emphasise limits on the scope of writ relief: petitioners had not pointed to any statutory rule violated such that mandamus or quashing would be appropriate; thus writ relief was not warranted.
British India Corporation Ltd. v. Industrial Tribunal Punjab, AIR 1965 Punjab 159	High Court will not interfere with an administrative order where no manifest injustice is shown.	Applied to support the view that absent manifest injustice or statutory violation, the High Court should not interfere with the Government's administrative decision on seniority.

Court's Reasoning and Analysis

The Court undertook a step‑by‑step analysis:

Distinction between quasi‑judicial and administrative acts:
- The Court recognised that removal from a statutory body (as in Bakhtawar Singh and Rajinder Pal Abrol) involves quasi‑judicial functions and therefore requires a speaking order showing application of mind and reasons. Those authorities were therefore distinguished because the present case concerned administrative fixation of seniority rather than removal from office.
- The Court relied on Division Bench and Full Bench authorities (Prithpal Singh Sanghera, Ranjit Singh, S.A.F. Abbas) which held that acceptance of representations about promotion/seniority is an administrative act and does not necessarily attract the rules of natural justice requiring a personal hearing or a speaking order.
On the specific contention that Annexure D‑1 was not a speaking order:
- The Court examined the executive files and noted the presence of notings showing that the memorial of respondent No. 3 and the representations of the petitioners were fully discussed by officials, the Chief Secretary and the Minister before being sent to the Governor.
- Relying on Swadeshi Cotton Mills v. Holley, the Court held that absence of reasons in the order itself does not invalidate an administrative act if the file discloses formation of opinion and consideration; thus the executive record remedied the lack of recital in Annexure D‑1.
- Consequently, the contention that the order was not a speaking order or that reasons were not given was rejected on the basis that the executive files contained the needed consideration and reasons.
On the petitioners' denial‑of‑opportunity contention:
- The record showed that notice of the memorial was given to the petitioners and that they did file representations against it (although the writ petition did not place copies of those replies on file). The Court noted the petitioners' failure to explain non‑production of their replies, and held they had had an opportunity to make effective representations; accordingly the denial of hearing contention was rejected.
On the substantive correctness of the refixation of seniority:
- The Court accepted the respondents' factual account that in July 1960 a departmental committee adjudged respondent No. 3 suitable for promotion while the petitioners were found unsuitable, and that respondent No. 3 had officiated in the higher post (promotion on regular basis) until February 1961 when he was reverted for want of post.
- When vacancies reappeared in December 1962 and a new promotion list was prepared, respondent No. 3 filed a memorial claiming priority based on his earlier selection and officiation. The Court referred to a government clarification (letter No. 8401‑4 GS‑61/33117 dated 8/11‑9‑1961, Point III) providing that when B was earlier found suitable and had officiated, B should normally get a future vacancy in preference to A who became suitable later. The Court applied this administrative policy to support the Government's refixation.
- As regards petitioner No. 1, the Court relied on Dr. Kartar Singh Rai to hold that an unconfirmed officer officiating as Assistant Food and Supplies Officer is not in the same class as confirmed officers; petitioner No. 1 was unconfirmed and therefore could not claim seniority against the confirmed officers (respondent No. 3 and petitioner No. 2), disposing of his claim on that short ground.
- For petitioner No. 2, the Court analysed the sequence of allocations, confirmations and officiation, the Departmental committee findings, the stay of respondent No. 3's reversion by the Division Bench during the pendency of Civil Writ No. 2127/1969, and the subsequent acceptance of respondent No. 3's memorial; applying Sunder Lal and the administrative clarification, the Court concluded the Government's decision to refix seniority in respondent No. 3's favour was lawful and not vitiated by manifest injustice or statutory breach.
On the scope of writ relief:
- The Court reiterated that writs (e.g., mandamus) are primarily to enforce statutory duties and keep public officers within jurisdictional limits; absent a statutory rule breach or manifest injustice the High Court should not intervene in discretionary administrative decisions (citing Lekhraj Lalvani and British India Corporation).

Holding and Implications

Holding: The writ petition is dismissed. Petition dismissed.

Implications (as expressed in the opinion)

The impugned order dated 28 July 1971 (Annexure D‑1) stands; Madan Gopal Garg's seniority as Assistant Food and Supplies Officer (and as District Food and Supplies Officer) being fixed above the petitioners is upheld by the Court.
The Court held, following the authorities cited, that acceptance by the Government of a government servant's representation regarding promotion or seniority is an administrative act and does not necessarily amount to the exercise of quasi‑judicial functions; therefore, such administrative orders do not always require speaking orders or personal hearings under natural justice.
The petitioners failed to demonstrate any statutory violation or manifest injustice warranting judicial interference; consequently no writ relief or quashing of the administrative order was granted.
The Court decided that petitioner No. 1's claim failed on the separate short ground that he was not a confirmed Assistant Food and Supplies Officer and therefore could not claim seniority against confirmed officers (citing Dr. Kartar Singh Rai).
No order as to costs was made (the opinion records "There will be no order as to costs").

Note: This summary reflects only information explicitly stated in the provided opinion. No information has been added beyond the text of the opinion.

Show all summary ...

Pritam Singh Pattar, J.:— This is a writ petition filed under Articles 226 and 227 of the Constitution of India by Bachittar Singh Grewal and P.N Kansal, District Food and Supplies Officers, for issuance of an appropriate writ, direction or order, quashing the order dated 28th July, 1971, Annaxure D-1 to the petition, passed by the State Government, by which Madan Gopal Garg, respondent No. 3, District Food and Supplies Officer has, been made senior to them.

2. The facts of this case are that Bachittar Singh Grewal and Prem Nath Kansal, Petitioners joined as Assistant Purchase Inspectors in the erstwhile State of Pepsu, and on 1.11.1956, they were allocated to the re-organised State of Punjab, and both of them were senior to Madan Gopal Garg, respondent No. 3. In July, 1960, respondent No. 3, was promoted as Assistant Food and Supplies Officer, in a stop gap arrangement and against this promotion petitioner No. 1, filed a representation. Before the decision of this representation, respondent No. 3 was reverted, sometimes in February, 1961. In December, 1962, both the petitioners and respondent No. 3 were promoted as Assistant Food and Supplies Officers by order dated 11th December, 1962, whose copy is Annexure A to the petition and in the gradation list petitioners were shown senior to respondent No. 3. Madan Gopal Garg, respondent No. 3, was confirmed as Assistant Food and Supplies Officer, with effect from 1.4.1966, by order dated 2nd August, 1966, while petitioner No. 2, was confirmed as Assistant Food and Supplies Officer, with effect from 1. Page: 8654, 1966, vide order passed in September, 1966. However, Bachittar Singh petitioner No. 1, was under suspension and his name was not considered for confirmation as Assistant Food and Supplies Officer. On the re-organisation of the State of Punjab, both the petitioner No. 1 and respondent No. 3, were allocated to the State of Punjab, w.e.f 1.11.1966 while petitioner No. 2 was provisionally allocated to the State of Haryana. However, with effect from 10th December, 1967, petitioner No. 2, was finally allocated to the State of Punjab Prior to this respondent No. 3, had been promoted as District Food and Supplies Officer, and thereupon petitioner No. 2 filed a representation against his appointment and he was also promoted as District Food and Supplies Officer, with effect from 19th June, 1968. Petitioner No. 1, was re instated and later on was promoted District Food and Supplies Officer with effect from 27th April 1968, vide Annexures B to B/2 to the writ petition. It is alleged that by order dated 9th August, 1969, Madan Gopal Garg respondent No. 3, was reverted as Assistant Food and Supplies Officer due to non availability of post. Respondent No. 3 had filed writ petition No. 2127 of 1969, against this reversion order and the operation of his reversion was stayed by the High Court. Respondent No. 3, had also submitted a memorial to the Governor against his seniority alleging that he was senior to the petitioners. By order dated 28th July, 1971 the President of India accepted his memorial and declared that respondent No. 3 was senior to Bachittar Singh Grewal and Prem Natn Kansal petitioners and he should be shown at serial No. 11, of the final seniority list of the Assistant Food and Supplies Officers and petitioners Nos. 1 and 2 should be shown at serial Nos. 12 and 13. It was further remarked that his seniority as District Fool and Supplies Officers will also be above the petitioners. The petitioners therefore filed this writ petition alleging that the impugned order dated 28th July, 1971, Annexure D-1 to the writ petition, is illegal, arbitrary, discriminatory and unconstitutional and is against the principles of natural justice and it should be quashed. It was alleged that copies of the memorial submitted by respondent No. 3, were not supplied to them and therefore they could not file effective reply to that memorial, that they were not given any chance of being personally heard, that the impugned order is not a speaking order and no reasons are given to declare him senior and that the order was illegal and invalid on merits.

3. Notices of this writ petition were issued to the respondents who contested the same. On behalf of respondents Nos. 1 and 2, the Joint Director Food and Supplies and Deputy Secretary to Government, Punjab, Food and Supplies Department filed the return wherein he admitted the facts stated in the writ petition. However, it was alleged that in July, 1960, the suitability for promotion of all senior Inspectors of the Food and Supplies Department including the petitioners Nos. 1 and 2, was considered by the Departmental Committee of four senior officers and that the petitioners were declared unsuitable for promotion, that respondent No. 3, was adjudged as suitable for promotion as Assistant Food and Supplies Officer and he was accordingly promoted with effect from 2nd July, 1960, and petitioners Nos. 1 and 2, were superseded and that it was a regular promotion and not a stop-gap promotion. The petitioners had filed representations against this promotion of respondent No. 3, and the same was rejected. It was stated that with effect from 19th December, 1962, the petitioners and Page: 866respondent No. 3, were promoted?s Assistant Food and Supplies Officers and in the seniority list the petitioners were shown senior to respondent No. 3, and against this tentative seniority list respondent No. 3 filed memorial to the Governor claiming the seniority over the petitioners and the me was accepted and the impugned order was passed by the President of India. The petitioners made representations against that memorial which were duly considered but were rejected. It was averred that the impugned order was, legal, valid and just and there is no substance in the writ petition and the same, may be dismissed. Similar is the return filed by respondent No. 3.

4. Mr. M.R Agnihotri counsel for the petitioners canvassed the following points for decision in this case:—

1. Respondent No. 3, Madan Gopal Garg had filed C.W No. 2127 of 1969, in this Court, regarding his seniority against the petitioners. In that writ petition the State Government had filed an affidavit opposing the writ petition and therefore it was against all propriety of administration to accept his memorial and therefore the order was wholly improper and contemptuous on the part of the State Government.

2. The impugned order dated 28-7-1971, Annexure D-1, is not a speaking order and no reasons whatsoever have been given therein and therefore it is liable to be quashed.

3. Notice of the memorial submitted by respondent No. 3, to the Governor was given to the petitioners but they were not supplied the copy of the memorial, inspite of repeated requests and therefore they could not make any effective representation against the memorial and the impugned order accepting that memorial, should be set aside as they were not given proper opportunity of being heard.

4. The order is wholly wrong, illegal and invalid as the petitioners were senior to him and therefore it should be quashed.

5. It is admitted that Madan Gopal Garg had filed writ petition No. 2127 of 1969, against the petitioners, the State of Punjab and others, claiming seniority as Assistant Food and Supplies Officer. He had filed a memorial to the Governor, Punjab against the fixation of seniority of the cadre of Assistant Food and Supplies Officers, wherein he was shown junior to the petitioners. This memorial is dated 20th August, 1966, and is Annexure R-3/4, attached to the return of respondent No. 3. This memorial was pending decision since long, and then fore he had filed the aforesaid writ petition in the High Court regarding his seniority Notice of this memorial was given to the petitioners who did file replies. However, a copy of this memorial was not supplied to them. The contention of the petitioners is that in the absence of the copy of the memorial and the exact service particulars of respondent No. 3, they could not make an effective representation against that memorial and this amounted to a complete denial of opportunity of being heard to them. They also contended that in memorial was competent by respondent No. 3, to the State Government or the Governor or the President. These allegations were denied by the State Government in their return. Respondent No. 3 had filed a memorial to the Governor claiming Page: 867seniority as against the petitioners on the ground that he had been declared suitable for promotion to the post of Assistant Food and Supplies Officer in 1960 when the petitioners were found unsuitable and the petitioners were given notice of that memorial and they filed their representations against it. The impugned order dated 28th July 1971, Annexure D1 was passed after considering the memorial and their representation. The petitioners have not placed on the file the copies of the replies filed by them to the memorial so that it may be ascertained whether they made any effective representation against that memorial. Admittedly they did file representation against that memorial and consequently it cannot be said that no effectively was made. The non-production of the replies filed by them to that memorial is not explained. After the decision on 28th July, 1971, of the memorial of respondent No. 3, writ petition No. 2127 of 1969, became infructuous as against the petitioners and it was dismissed by Hon'ble B.R Tuli, J. on 9th May, 1972, against them. For all these reasons it is held that there is no substance in 1 and 3, of the counsel for the petitioners mentioned above and the same are rejected.

6. counsel for the petitioners contended that the impugned order a sneaking order and no reasons have been given for this order and therefore it should be quashed. The impugned order dated 28th July, 1971, which is Annexure D-1, reads as follows:—

“The President of India is pleased to accept the memorial submitted by Shri Madan Gopal Garg against the fixation of his seniority. Consequently the seniority of Shri Madan Gopal Garg is refixed at S. No. 11, i.e above Sarvshri Bachittar Singh and P.N Kansal who will now be at S. Nos. 12 and 13 respectively, in the final seniority list of Assistant Food and Supplies Officers circulated vide Memo No. 19874-Arra (1) 70/43096, dated 20.10.1970 His seniority as District Food and Supplies Officer will also be above Sarvshri Bachittar Singh and P.N Kansal.

S.S Parmar,

Secretary to Government, Punjab,

Food and Supplies Department.

No. 5649-ESE (1)-71/29677.

Dated Chandigarh the 28th July, 1971.”

7. The counsel for the petitioners relied on Supreme Court decision The State of Punjab v. Bakhtawar Singh, 1972 S.L.R 85, in support of his Contention. In that case Bakhtawar Singh, a member of the Punjab State Electricity Board was removed from the membership of Board by the following order passed by the Irrigation and Power Minister, Punjab on 17th July, 1969:—

“I have carefully considered the whole file, show cause notice and the explanation furnished by Shri Bakhtawar Singh. I have also seen the opinions of our Legal Remembrancer and the Advocate-General. I agree with the Secretary, Irrigation and Power, that this fact is established that Shri Bakhtawar Singh while working as a Member of the State Electricity Board was taking part in politics, as a result whereof the work of the Board was Page: 868adversely affected. Besides, he did not discharge his duties impartially. For these reasons, I agree with the proposal of the Secretary, Irrigation and Power, that it is not desirable that Shri Bakhtawar Singh should continue as Member of the State Electricity Board. I, therefore, order that Shri Bakhtawar Singh should be removed from membership of the Board under section 10(1)(c)(iv) of the Act. Before the orders are actually issued, the file should be sent to the Chief Minister as well.”

8. The High Court had held that all the charges levelled against Bakhtawar Singh related to acts and omissions prior to his being member of the Board. The order of the Minister removing him from membership did not disclose that he had applied his mind to the material on record. Therefor the order could not be said to be a speaking order and could not be upheld and the same was quashed.

9. The next ruling relied upon by him was Rajinder Pal Abrol v. State of Punjab, 1971 S.L.R 130. In that case the following order was passed on 17th January, 1969, by the Irrigation and Power Minister removing Rajinder Pal Abrol from the membership of the Punjab State Electricity Board;—

“I have gone through the charges and the explanation furnished by Shri R.P Abrol. From the material on the file, I am definitely of the opinion that he is not a fit person to be retained as part-time member of the Electricity Board. I, therefore, order that Shri Abrol may be removed from membership under sub-clause (iv) of clause (e) of sub-section (1) of section 10 of the Electricity Supply Act, 1948 C.M may kindly see. After C.M has seen, immediate orders be issued.”

10. On these facts it was held as under:—

“It is for the competent authority, alone to apply the judicial mind and then accept or reject the same without letting any one else influence his judgment intentionally or whether by way of comments or in any other manner. Application of judicial mind, has to be seen from the order itself and not that the reasons are to be guessed or gathered from the scrutiny of the executive file.”

11. Both these rulings are distinguishable and do not apply to the facts of this case. In both these cases the orders related to the removal of the petitioners from the membership of the Punjab State Electricity Board, and therefore these were quasi-judicial orders and consequently these should be speaking orders and therefore reasons should be given for the same. In the instant case the impugned order was not a quasi-judicial order but was an administrative order to determine the seniority of the officers and consequently no reasons were required to be given by the Government. Thus both these rulings do not apply to the facts of this case.

12. The next ruling relied upon by the counsel for the petitioners was Shri K.D Vasudeva I.A.S v. The Union of India, 1971 S.L.R 487, wherein it was held as under:—

“An order which disturbed the previously fixed seniority of the members of a service is a quasi-judicial order and has to be passed after observing the principles of natural justice, that is, after giving notice to the affected persons and after affording them an opportunity of hearing.”

13. As against this Single Bench Ruling the learned counsel for the respondents relied on Division Bench decision of this Court in Prithpal Singh Sanghera v. The Secretary to Government Punjab, I.L.R 1970 (2) Punjab 673, to show that the law laid down in the aforesaid Single Bench authority is not correct. The Division Bench held as under:—

“That the Government in accepting a representation of Government servant as against the order in relation to promotion does not exercise any quasi-judicial functions. It is an administrative act requiring no judicial approach of the type which a Court or any administrative authority exercising quasi-judicial functions is expected to make. There can be no lis between the parties nor does it create such a situation between the two centesting officer so as to bring to operation the rule prohibiting review by judicial or quasi-judicial tribunals except in specified circumstances and birring a fresh decision.”

14. To the same effect was the law laid down in Ranjit Singh I.P.S v. The President of India, 1971 S.L.R 561. In S.A.F Abbas v. State of Bihar, A.I.R 1970 Patna 397, a Full Bench authority of the Patna High Court it was held as under:—

“In the matter of administration (fixing of seniority)…… it is open to the departmental authority to pass any suitable order, if materials be on record for assessing the merit of claim or claims of the officers or officers concerned. If, however, any officer feels aggrieved by such an order, it is open to him to put in a representation for reconsideration of the decision and if the authority taking the decision is satisfied that there is substance in the grievance made by the officer adversely affected by that order, the decision must be altered and justice done between the parties. Normally this should be done within a reasonable time to avoid further complications by virtue of any officer having enjoyed the benefit of that decision for such a long time and unless there be very compelling reason to do so, such a decision should not be altered as an abstract question of administrative policy, if a decision his been arrived at by the Government on the administrative side, it can be altered if the Government is satisfied that the decision was wrong. There is no question either of violation of the principle of natural justice in this case because there is no provision for a personal hearing.”

15. It was further held in this decision that fixing of seniority and its alteration are administrative matters and the rules of natural justice have no application to the same.

16. The law laid down in these authorities, relied upon by the learned counsel for the respondents is fully applicable to the facts of this case. In the instant case respondent No. 3 felt aggrieved against the Page: 870fixation of his seniority as Assistant Food and Supplies Officer, and therefore, he submitted a memorial against that order of the Government against the petitioners and its copy is Annexure R-3/4 to his return. The notice of this memorial was given to the petitioners who made representation against the same. The Government while accepting the memorial of respondent No. 3 did not exercise any quasi-judicial functions and it was only an administrative act requiring no judicial approach and therefore no reasons were required to be mentioned by the President while passing the impugned order dated 28th July, 1971, whose copy is Annexure D-1 to the petition.

17. Further during the arguments the counsel for the respondent-Punjab State produced the file containing the impugned order and the noting of the officers in the Secretariat. These files were shown to me during argument. The matter was examined by the officers and then by the Chief Secretary and the Minister and thereafter the memorial with all the relevant records including the representation of the petitioners were sent to the Governor. In The Swadeshi Cotton Mills Co. Ltd. v. R.J Holley, 1962 (1) Supreme Court Appeals 55, it was observed as under:—

“The power to pass an order under section 3 arises as soon as the necessary opinion required thereunder is formed. This opinion is naturally formed before the order is made. If therefore such an opinion was formed and an order was passed thereafter, the subsequent order would be a valid exercise of the power conferred by the section. The fact that in the notification which is made thereafter to publish the order, the formation of the opinion is not recited will not take away the power to make the order. The validity of the order, therefore, does not depend upon the recital of the formation of the opinion in the order but upon the actual formation of the opinion and the making of the order in consequence. It would, therefore, follow that if by inadvertence or otherwise the recital of the formation of the opinion is not mentioned in the preamble to the order the defect can be remedied by showing by other evidence in proceedings where challenge is made to the validity of the order, that in fact the order was made after such opinion had been formed and was thus a valid exercise of the power conferred by the law. The only exception to this course would be where the statute requires that there should be a recital in the order itself before it can be validly made.”

18. It was further observed in this ruling as under:—

“The difference between a case where a general order contains a recital on the face of it and one where it does not contain such a recital is that in the latter case the burden is thrown on the authority making the order to satisfy the Court by other means that the conditions precedent were fulfilled, but in the former case the Court will presume the regularly of the order including the fulfilment of the conditions precedent, and then it will be for the party challenging the legality of the order to show that the recital was not correct and that the conditions precedent were not in fact complied with by the authority.”

19. These observations fully apply to this case. According to these observations the executive files can be looked into to know the reasons in Page: 871support of the order. A perusal of the executive files show that the memorial of respondent No. 3 and the representations of the petitioners were fully discussed and after giving cogent reasons the memorial was accepted and respondent No. 3 was declared senior to the petitioners. For the reasons given above the contention of the counsel for the petitioners ??? the impugned order is not a speaking order and no reasons were given has no force and is rejected.

20. Now we proceed to discuss the last contention raised by the counsel for the petitioners that the impugned order is wrong, incorrect and is bot valid. It is common case of the parties that as Inspectors in the Food and Supplies Department, the petitioners were senior to Madan Gopal Garg, respondent No. 3. It is clear from para No. 5 of the return of respondents No. 1 and 2, that a Departmental Committee of four senior officers considered the names of the petitioners, respondent No. 3 and other senior Inspectors of the Food and Supplies Department, and the committee declared that the petitioners were unsuitable for promotion and had adjudged respondent No. 3, suitable for promotion and he was accordingly promoted as Assistant Food and Supplies Officer, on 2nd July, 1960, in suppersession to the petitioners and that this was a promotion on regular basis and not a stop gap arrangement. It is further mentioned therein that both the petitioners filed representations against this promotion of respondent No. 3, but the same were rejected. However, due to reduction of the post, respondent No. 3 was reverted as Inspector, Food and Supplies in February, 1961. Again by an order dated 19th December, 1962, the petitioners, respondent No. 3, and four other officials were promoted as Assistant Food and Supplies Officers, and a seniority list was prepared wherein the petitioners Nos. 1 and 2, were shown senior to respondent No. 3. Against this tentative seniority list respondent No. 3 filed a memorial to the Governor claiming seniority over the petitioners on the ground that he had been earlier declared suitable for promotion to the post of Assistant Food and Supplies Officer in 1960, when both the petitioners were found unsuitable and that he held the higher post of Assistant Food and Supplies Officer and consequently he must continue to be senior to them. This memorial of respondent No. 3 was accepted by order dated 28th July, 1971, whose copy is Annexure D—1, to the writ petition and this order is being challenged in the present writ petition.

21. Respondent No. 3 was confirmed as Assistant Food and Supplies Officers, vide orders dated 2nd August, 1966, with effect from 1.4.1966 Prem Nath Kansal petitioner No. 2, was confirmed as Assistant Food and Supplies Officer, vide order 2nd September, 1966, with effect from 1.4.1966 It is admitted that Bachittar Singh Grewal petitioner No. 1, has not been confirmed as Assistant Food and Supplies Officer up till now. Therefore he cannot claim seniority both as against Madan Gopal Garg, respondent No. 3, and Prem Nath Kansal petitioner No. 2, because both of them are confirmed Assistant Food and Supplies Officers. Consequently he could not be said to be member of the same class of service. In Dr. Kartar Singh Rai v. The State of Punjab, 1969 S.L.R 79, it was held by a Full Bench of this Court that persons officiating in P.C.M.S Class I and persons confirmed in P.C.M.S Class I, do not constitute the same class of service; the confirmed officers formed a separate class while the officiating officers constitute a separate class. Therefore it follows that Bachittar Singh Grewal petitioner No. 1, who is a confirmed Inspectory and is an officiating Assistant Food and Supplies Officer, is not a member of the same service and consequently he cannot claim seniority as against Page: 872respondent No. 3, for the post of Assistant Food and Supplies Officer. His writ petition, therefore, must fail on this short ground.

22. Now the only question that remains for determination is whether Prem Nath Kansal petitioner No. 2 is senior to Madan Gopal Garg, respondent No. 3. It is clear from Para No. 7 of the return of respondent No. 3 that he was promoted as District Food and Supplies Officer, with effect from 5th June, 1967, on the basis of his service record and his seniority as Assistant Food and Supplies Officer. Petitioner No. 2, had been provisionally allocated to the State of Haryana, with effect from 1.11.1966 He was finally allocated to the State of Punjab with effect from 10.12.1967, and he made a representation to the State Government that as Madan Gopal Garg, respondent No. 3, who was junior to him had been promoted, therefore he should also be promoted. Thereafter petitioner No. 1, was reinstated and then both the petitioners were promoted as District Food and Supplies Officers with effect from 27th April, 1968. The petitioners and respondent Nos. 3, continued to officiate as District Food and Supplies Officers till 11th August, 1969, Due to non-availability of post, Madan Gopal Garg, respondent No. 3, was reverted as Assistant Food and Supplies Officer, being junior to the petitioners vide order dated 11th August, 1969, whose copy is Annexure C. Against this reversion he filed Civil Writ No. 2127 of 1969, in this Court and a Division Bench of this Court, who admitted this writ petition on 25th August, 1969, passed the order that his reversion was stayed till the decision of the writ petition. Consequently he continued to officiate as District Food and Supplies Officer. During the pendency of that writ petition his memorial was accepted by the Government vide order dated 28th July, 1971, whose copy is Annexure D-1, wherein he was declared senior to the petitioners as Assistant Food and Supplies Officer and that his seniority as District Food and Supplies Officer, will also be above the petitioners. In Sunder Lal v. The State of Punjab, 1970 S.L.R 59, it was held by a Division Bench of this Court, that if owing to bona fide mistake or otherwise the Government has taken a decision regarding confirmation or seniority of an officer it can certainly revise its decision at a subsequent stage when mistake comes to its notice and the Government can correct that error and such a decision would not come within the ambit of Article 311 of the Constitution of India. In Lekhraj Sathramdas Lalvani v. (In Both The Appeals), A.I.R 1966 S.C 334, the Supreme Court held as under:—

“A writ of mandamus may be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the pin of that officer to discharge that statutory obligation. The chief function of the writ is to compel the performance of public duties prescribed by statute and to keep the subordinate tribunals and officers exercising public functions within the limits of their jurisdictions, any duty or obligation filling upon a public servant out of a contract entered into by him as such public servant cannot be enforce by the machinery of a writ under Article 226 of the Constitution. The appointment of a person as a Manager by the Custodian by virtue of his power under section 10(2)(b) of the Administration of Evacuee Property Act is contractual in nature and there is no statutory obligation as between latter and the former. Thus the Page: 873former is not entitled to move the High Court for grant of a writ in the nature of mandamus under Article 226 of the Constitution.”

23. In the instant case no statutory or other rules have been brought to the notice of this Court by the petitioners according to which petitioner No. 2 has to be considered senior to respondent No. 3. The Government did not violate any statutory rules in fixing the seniority of respondent No. 3, above the petitioners vide its order dated 28th July, 1971, Annexure D-1, to the writ petition. The Chief function of a writ petition is to compel the performance of public duty prescribed by statute or rules having the force of law and to keep the subordinate tribunals and officers exercising public functions within the limitation of their jurisdiction. In the instant case it is not shown that any statutory rules had been violated by the Government in passing the impugned order. Consequently according to this ruling no writ of mandamus can be issued in favour of the petitioners. In British India Corporation Ltd. v. Industrial Tribunal Punjab, AIR 1965 Punjab 159, it was held that the High Court would not interfere with an order where no manifest injustice is done.

24. In the instant case the petitioners were senior to respondent No. 3 as Inspectors Food and Supplies. However, Madan Gopal Garg, respondent No. 3 was promoted by selection to the post of Assistant Food and Supplies Officer in July, 1960. A Departmental Committee of four senior officers screened the records of the petitioners, respondent No. 3 and other officials to find out the suitability for promotion and the said committee declared the petitioners Nos. 1 and 2, as unsuitable for promotion and adjudged respondent No. 3 as suitable for promotion as Assistant Food and Supplies Officer and he was promoted as such on 2nd July, 1960, in supersesion of the petitioners. This was a promotion on regular basis. Both the petitioners filed a representation against this promotion of respondent No. 3 and these were rejected as is clear from the return filed by respondents Nos. 1 and 2 However, respondent No. 3 was reverted in February, 1961, for want of a post. He made representation against this reversion to the Government stating that some Inspectors junior to him were officiating as Assistant Food and Supplies Officer, and therefore his reversion was not regular and he was informed that those juniors had been retained for a short period in public interest.

25. Again respondent No. 3 was confirmed as Assistant Food and Supplies Officer with effect from 1.4.1966 by order dated 22nd August, 1966, as against this petitioner No. 2 was confirmed by order dated 2nd September, 1966, with effect from the same date, that is, 1.4.1966 The order of confirmation of petitioner No. 2 was passed one month after the order of confirmation of respondent No. 3.

26. Annexure F to the writ petition and Annexure A to the return of respondent Nos. 1 and 2, are copies of letter No. 8401-4 GS-61/33117, dated 8/11-9-1961, issued by the Punjab Government containing instructions regarding the procedure to be followed in selection of officers/officials for promotion to higher posts. This letter was issued to clarify certain points mentioned in the Punjab Government letter dated 28th June, 1961, pertaining to promotion of officers/officials about which certain doubts had been expressed. The relevant portion of this letter is Point III, which reads as follows:—

III. Officials A is considered unsuitable and official B is suitable for promotion. B is promoted but later on, has to revert for want of a vacancy. By the time a vacancy arises again ‘A’ too has become suitable. Will this vacancy go to ‘B’? Clarification: As the claim of B far the vacancy has been established earlier and he has also officiated in the higher post for sometime, B should normally get the vacancy in preference to ‘A’.”

27. In the instant case, admittedly in July, 1960, the names of the petitioners, respondent No. 3 and others were considered for promotion, as Assistant Food and Supplies Officers, and the Government selected respondent No. 3 in supersession of the petitioners who were not considered suitable for promotion at that time. Respondent No. 3 continued to officiate as Assistant Food and Supplies Officer till February, 1961, when for want of a post he was reverted. Again certain posts fell vacant in December, 1962, and at that time the petitioners were also considered suitable for that post. According to the above said clarification respondent No. 3, must have a prior claim for promotion because he had already superseded the petitioners in the year 1960. It is thus clear that promotion of respondent No. 3 was made by the Government in accordance with the rules, and no manifest injustice was done to the petitioners by declaring respondent No. 3, senior to the petitioners by the impugned order dated 28th July, 1971 The relief claimed in the writ petition is discretionary and extraordinary and unless any manifest injustice is shown to have been done to the petitioners the writ cannot be issued in their favour. The impugned order is correct, legal, proper and just and there is no ground to quash the same.

28. The legal position therefore is that the Government or the appropriate authority when exercising quasi-judicial functions must pass a speaking order and give reasons in support of the same. The order must disclose that the authority applied its mind to the material on the record. However, when the Government is to pass an administrative or executive order it is not expected to have a judicial approach of thy type when it exercises quasi-judicial functions in the matter of administration, i.e fixing seniority of officers it is open to the Departmental authorities to pass any suitable order from the material on record to assess their merits.

29. The Government in accepting the representation of a Government servant regarding his promotion or seniority does not exercise any quasi-judicial function and it is an administrative act requiring no judicial approach. If a decision has been arrived at by the Government on the administrative side it could be altered if the Government is satisfied than the decision was wrong and in such a case there is no violation of the principles of natural justice. The decision of the Government fixing the seniority of officers and its alteration are administrative matters and the rules of natural justice have no application to the same. The Government while accepting the memorial of a Government servant regarding his seniority did not exercise a quasi-judicial function and it was only an administrative act requiring no judicial approach and therefore no reasons were required to be given for such an order. For the reasons given above it is held that this writ petition fails and the same is dismissed. There will be no order as the coss.

30. Petition dismissed.