K.C. Agrawal, J.
These two Special appeals filed against a common judgment given in two writ petitions, Nos. 5005 of 1972 and 1875 of 1973, by brother K.N. Singh raise common questions of law, hence are being decided by a common judgment by us as well. The dispute in these appeals relates to the fixation of seniority of the appellants in U.P. Palika Subordinate Engineering Service.
The facts, in brief are as follows:
The U.P. Municipalities Act (Act II of 1916) was repealed in its application to the cities which were taken over under the U.P. Nagar Mahapalika Adhiniyam was passed to provide for the establishment of Nagar Mahapalika in certain cities with a view to ensuring better municipal government in those cities. This Act was intended to apply to five major cities, that is, Kanpur, Allahabad, Varanasi, Agra and Lucknow. Chapter IV of the said Adhiniyam dealt with the officers and members of the staff of a Mahapalika. This Chapter consisted of Sections 106 to 113. Section 106 contemplated the creation of certain posts of officers and staff necessary for efficient working of the functions of the Mahapalika. Section 577 (e) of the Adhiniyam made all existing officers and servants of the Municipal Board, Improvement Trust, Development Board or Local authority in the cities to which the Adhiniyam applied officers and servants employed by the Mahapalika in a temporary capacity.
The Chart given below would indicate the various dates of appointment of the appellants as well as the respondents in the Mahapalika mentioned against their names:
Name
Date of Appointment
Name of the Mahapalika
Tara Chand Gupta
Ravindra Nath Sinha
Ram Sajiwan Misra
Ajay Kumar Khanna
P.C. Mehrotra
Lekhraj Singh
Sohan Lal
R.K. Saxena
18. 9.1958
22.11.1960
1.10.1959
20.1.1961
27.3.1962
1.7.1961
27.3.1961
25. 1 1961
Allahabad
Allahabad
Allahabad
Lucknow
Lucknow
Kanpur
Lucknow
Agra
In 1964 the State Lgislature enacted the U.P. Nagar Mahapalika (Sanshodhan) Act (U.P. Act No. XXI of 1964). By Section 12 of this Act, the Legislature added Section 112A to the U.P. Nagar Mapalika Adhiniyam 1959. Section 112A empowered the State Government to provide by rules for the creation of services of such officers and servants as may be necessary. These creation of service would be common to all the Mahapalikas or to the Mahapalikas and Municipal Boards, and this section prescribes the method of recruitment and conditions of service. A similar amendment was made in the U."P. Municipalities Act by inserting Section 69B in the said Act. This was done by the State Legislature with a view to infusing greater efficiency in the administration of the local bodies in the State of Uttar Pradesh.
In the exercise of the powers under Section 112A of the U.P. Nagar Mahapalika Adhiniyam and Section 69B of the U.P. Municipalities Act the State Government framed rules known as U.P. Palika (Centralised) Service Rules. 1966 (hereinafter referred to as the ''Services Rules''). These Rules came into force on July 9, 1966. Rule 3 created 19 Centralised Services in the Palika. These Services covered about 76 posts common to all the Nagar Mahapalikas and Municipal Boards. The other rules of Centralised Services Rules provided for absorption of the old employees in the new service as well as for the manner and method of recruitment of new employees and determination of the question of promotion. Subsequent to the framing of the Services Rules, some amendments were made in Section 112A and Section 69B of the Acts, mentioned above. It is, however, not necessary for us to deal with the same in the present appeals. It may only be pointed out that on October 10, 1966, the State Government passed the U.P. Palika (Centralised) Services Amendment Rules, 1966. These rules, in effect, amend the earlier rule 6 with retrospective effect from July 9. 1966.
The chart giving the various dates of appointments of the appellants and the respondents would show that all these persons were working in one Nagar Mahapalika or the other at the time when the Services Rules came into force. These persons were initially absorbed provisionally and after screening of their records finally in the U.P. Palika Engineering (Subordinate) Service. After absorption in the Centralised Services, respondents Nos. 2, 3 and 5 made representations to the State Government claiming that their services in other departments of the State Government prior to their joining the Nagar Mahapalika be also taken into consideration for fixation of pay and seniority. The State Government by the orders passed on. December 20, 1971, and April 20, 1972, disposed of the representations of Ajay Kumar Khanna, P.C. Mehrotra, Lekhraj Singh and Sohan Lal. By these two orders, which were Annexures ''A.I'' and ''A12'' to Writ Petition No. 5005 of 1972, the State Government directed that these persons would be entitled to the benefit of their past services for the purposes of determining their seniority. The appellants felt aggrieved by the aforesaid two orders of the State Government as they were likely to become juniors in case those orders were given effect to and, therefore, they filed the two writ petitions, mentioned above.
It appears that on August 30, 1972, the State Government prepared a draft seniority list of the members of the U.P. Palika Engineering (Subordinate) Service inviting objections and suggestions. During the pendency of the writ petitions in this Court, the State Government finalised the draft seniority List and published the same on November 5, 1973. This list was also circulated.
The appellants, therefore, filed an application for amendment of the writ petitions seeking to challenge the finalised seniority list. The amendment application was allowed on December 11, 1973 and the appellants were permitted to add some more grounds to the writ petitions which they intended to take for the purposes of challenging the final senority list. In this final seniority list the appellants of these two appeals were shown junior to respondents Nos. 2 to 5 of Special Appeal No. 152 of 1974 and Respondent No. 3 of the other connected Special Appeal No. 153 of 1974. The position of the appellants and the respondents as determined according to the final seniority list can be found out from the following chart:
Name
Date of Initial appointment
Date with effect from which benefit of seniority has been given in the G.O.
Date of final absorbtion centralised service
Date from which seniority counted in final seniority list.
Tara Chand Gupta
18.9.1958
��
29.8.1967
18.9.1969
Ravindra Nath Sinha.
22.11.1960
����
29.8.1967
22.11.1961
Ram Sajiwan Misra
1.10.1959
1.10.1959
22.8.1967
1.101960
Ajay Kumar Khanna
18.8.1958
18.8.1958
22.8.1958
29.8.1967
18.8.1959
P.C. Mehrotra
28.8.1958
25.7.1959
29.8.1967
25.7.1960
Lekraj Singh
31.3.1960
31.3.1960
29.8.1967
31.3.1961
Sohan Lal
1.8.1957
1.8.1957
29.8.1967
1.8.1958
R.K. Saxena
1.12.1958
1.12.1958
29.8.1967
1.12. 1958
The challenge of this final seniority list made by the appellants in the two writ petitions failed before the learned Single Judge, against which they have filed these Special Appeals.
Learned counsel for the appellants has challenged the legality of the final senority list prepared by the State Government on various grounds. The first ground of attack was that the seniority of the appellants should have been determined in accordance with Rule 24 of U.P. Palika (Centralised) Services Rules, 1966, and as their seniority in the said list was determined in contravention of the aforesaid Rule, the seniority list was liable to be quashed. We have already mentioned earlier that in the exercise of the powers under Section 112A of the U.P. Nagar Mahapalika Adhiniyam, 1959 and Section 69B of the U.P. Municipalities Act, the Government had framed centralised Services Rules for the purposes of regulating recruitment and conditions of service of the persons appointed in these services. The Services Rules are divided into varioius parts. Part VII, in which Rule 24 is to be found, deals with appointment, probation and confirmation. Rule 24 reads as follows:
"SenioritySeniority on a post in the Centralised Services shall be determined by the date of substantive appointment provided that if two or more candidates are appointed from the same date, their seniority shall be determined in accordance to the order in which their names appear in the list prepared under Rules 19 and 20".
A reading of Rule 24 along with Rules 19 and 20 would show that the said Rule 24 is meant only for the purposes of determining the seniority of the candidates who have to be brought in the service by means of direct recruitment after the enforcement of these Rules. The Services Rules has divided the servants and officers of the Mahapalika and Municipal Boards into two classes. Those who were working in the Mahapalikas or Municipal Boards before the enforcement of the Services Rules and others who were to be recruited after the enforcement of the said Rules. Rule 6 of the Services Rules deals with the absorption of the employees mentioned in it in accordance with the procedure provided therein. In case of these absorbed officers and members of the staff, their dates of substantive appointments lost all significance inasmuch as they were recruited or appointed in different Municipal Boards on different dates and at that time there were no centralised services. But after the enforcement of the Services Rules the position has changed. All the services of all the Mahapalika and Municipal Boards have been centralised. Any fresh recruitment now made after the enforcement of the Services Rules has to be done in the centralised services and not in the respective Municipal Boards or Mahapalika. It is, therefore, clear that Rule 24 was meant for determination of seniority posts in the centralised services with effect from the date of the substantive appointment made on the same.
A reference to the context as well as the setting in which this rule had been framed would also indicate that it was meant to be applicable to the new recruitments. The heading of Part V is ''Procedure for direct recruitment.'' Rule 19 is to be found in the said part. Rule 19 refers to the preparation of awaiting list of the candidates approved by the Commission under Rule 17 for the purposes of recruitment. Rule 21 mentions that appointments to the Centralised Srvices shall be made from the persons whose names are mentioned in the list prepared under Rule 19. Dealing with the matter further Rule 22 speaks of probation, Rule 23 about confirmation, and Rule 24 about seniority. These rules would also show that the only purpose for which Rule 24 was made was to determine the seniority of the officers working on various posts in Centralised Services recruited after the enforcement of the Services Rules. The proviso to Rule 24 to the effect that if two or more candidates are appointed from the same date, their seniority shall be determined according to the order in which their names appear in the list prepared under Rules 19 and 20, is further indicative of the fact that the main clause to which this proviso has been framed is meant for the persons whose names are to be found in the list prepared under Rules 19 and 20. Acceptance of the argument of the learned counsel for the appellants that the first sentence of Rule 24 applies to all the members of the Centralisd Services would render the later sentence of this Rule redundant. This again is another reason which impels us to repel the contention of the learned counsel for the appellants and to hold that Rule 24 did not apply to the case of the parties of these appeals for the purposes of determining their seniority.
Learned counsel for the appellants, thereafter, urged that in case Rule 24 was not interpreted in the manner that he desired it to be done, the inevitable result would be that the said rule would have to be struck down as ultra vires, being in violation of the guarantee of equal treatment enshrined in Article 14 of the Constitution of India.
Learned counsel for the appellants further submitted that it was a settled rule that an interpretation of a provision which would render it unconstitutional should be avoided and, therefore, relying on this rule of interpretation he strenuously argued that the Court should accept the interpretation of Rule 24 made by him. We will separately deal with the question of invalidity of Rule 24 later on in this judgment. With regard to the rule of interpretation pointed out by the learned counsel for the appellants, it may be pointed out that if the language used in the rule leads to one irresistible result it would not be proper for us to read it differently only for the purposes of finding out the same to be valid. In the present case, if we were to read Rule 24 in the manner suggested by the learned counsel for the appellants that would only mean that we would be closing our eyes to the latter part of the Rule and would only read with first few words used therein. This, according to us, is not possible. The Rule has to be read as a whole. The context in which the Rule has been provided cannot also be forgotten for that purpose.
In Magor and St. Mellons Rural District Council v. New Port Corporation (1950) (2) (All England Reports, 1226), Lord Denning Opined as below:
"We sit here to find out the intention of Parliament and of Ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis."
This observation of Denning, L.J. was severely criticised by the House of Lords in the appeal which was preferred against this judgment. The judgment of the House of Lords is reported in 1951 (2) (All England Reports, 839). Lord Simonds dealing with the above observations of Lord Denning, L.J. pointed out as below:
"It appears to me to be a naked usurption of the legislative function under the thin disguise of interpretation."
These observations of the House of Lords, therefore, do not permit us to do what Sri Shanti Bhushan, counsel for the appellants, desired us in these appeals.
The next submission made by the learned counsel for the appellant''s was that the State Government acted arbitrarily and capriciously in fixing the seniority of the appellants and the respondents in these appeals. Learned counsel for the appellants emphasised that even if it were true that Rules 24 of the Services Rules did not apply in terms to the parties of the present appeals, the spirit of the said Rules still governed the question of their seniority and, therefore, the State Government should have determined the seniority of the parties of the present appeals in accordance with the same. In this connection, he also invited our attention to Rule 10 of U.P. Nagar Mahapalika Sewa Niyamavali, 1962, and submitted that as under this Rule as well the seniority had to be determined according to the length of service of an employee working in the Mahapalika in the Mahapalika itself, therefore, the State Government should have kept the principle of Rule 10 in its mind at the time when it was determining the seniority of the parties of the present appeals.
It is admitted on all hands that in case Rule 24 did not apply to the parties of the present appeals and other persons falling in their category in that event there was no other rule which could be applied in their case for the purposes of determination of their seniority. The U.P. Mabapalika Sewa Niyamawali, 1962, relied upon by the counsel for the appellants applied to the employees of a Mahapalika as in existence at that time. The said rule ceased to govern or apply to the members of the staff and officers who came under the operation of Section 112A of the U.P. Nagar Mahapalika Adhiniyam, 1959. As a result of the enactment of U.P. Nagar Mahapalika Adhiniyam, 1959, the services of all officers and servants in the employment of the Municipalities, Improvement Trusts, Development Boards or local bodies became temporary. Those persons were only permitted to continue as servants of the Mahapalika who were working there in a temporary capacity. They were to be appointed to the posts created under the U.P. Nagar Mahapalika Adhiniyam, 1959. This Adhiniyam came into force in 1960. By Act XXI of 1964, as already stated, a new Section 112A was inserted in the Adhiniyam. As a result of insertion of this new section, power was conferred on the State Government to provide in the rules for the creation of one or more services as the State Government may deem fit. The State Government as mentioned above framed Centralised Services Rules, Rule 6 of the said Rules dealt principally with the absorption of the old employees. A reading of these provisions would clearly show that on account of the amendments made in the U.P. Nagar Mahapalika Adhiniyam and the Rules framed there under all the officers and members of the staff who were absorbed under the Centralised Services Rules belonged to a completed new service called the Palika Centralised Services. As a result of the creation of this new service, the old rules applicable to the employees of the Nagar Mahapalika could no longer be applied to them. The new Centralised Services Rules did not have any provision relating to the determination of seniority of the absorbed employees. The consequence was that the field relating to the determination of seniority of these officers and members of the staff was vacant. The State Government, therefore, in exercise of its administrative power could legally and validly issue an administrative or executive order laying down the norma and principles to be followed in the matter of determination of seniority of these officers. The power and authority of the State Government to issue executive orders cannot be disputed in view of the law laid down by the Supreme Court in Lalit Mohan Deb and others v. Union of India and others A.I.R. 1972 S.C. 995 and Sant Ram Sharma v. State of Rajasthan and others A.I.R. 1967, S.C. 1910.
The facts as disclosed in the various affidavits filed in the present two cases indicate that initially the State Government had allowed the representations made by some of the respondents of these two appeals and had directed that their seniority should be determined with effect from the dates mentioned in these two orders. In making these orders the State Government was of the opinion that since the respondents had worked on more or less similar posts elsewhere in the State Government or other semigovernment bodies, their length of service in those departments should also be taken into account for the purposes of determining the seniority. It, however appears from the supplementary counteraffidavit of Sri P.K. Mittra filed on behalf of the State Government that subsequent to the publication of the draft seniority list a number of objections were received and the Government thereafter issued a final seniority list on November 5, 1973. According to this affidaivt, the State Government evolved certain principles before finalising the seniority list. Amongst those principles, the principle with which we are directly concerned in these appeals is to be found in paagraph 6 of the said supplementary counteraffidavit. In coming to this decision, the State Government mainly held that benefit of a part of the service rendered by Overseers in other departments or other local bodies had to be given to them while fixing the final seniority. As some of the local bodies appointed some of the Overseers as fullfledged Overseers without requiring them to undergo the requisite experience, the State Government in order to bring harmony and equality deducted one year''s experience probation from the date of initial appointment as Overseers from the length of service of each of the Overseers who were subsequently absorbed in the Centralised Service. The substantive date of appointment of the various officers of the Centralised Services, was, however, the same, that is, August 29, 1967.
The facts mentioned above, thus would show that the State Government had evolved a method of determining seniority of the absorbed employees in the Centralised Services in a manner that was equitable and did not do injustice to anybody. The State Government directed for the past services of all the employees to be taken into account irrespective of the fact that they worked in the Government departments or in Palika or Nagar Mahapalika. It cannot be denied that the claim of experience or length of service done elsewhere on more or less similar post requiring the discharge of same duties is a relevant consideration which could be taken into account for the purposes of determination of seniority. As new service was created and before the creation of the same all the Overseers who were absorbed in the U.P. Palika Engineer (Subordinate) Service had been working at different places but had been pooled together therefore, it was in the fitness of things that in order that no injustice was done to anyone of them, past services done or rendered by them was also taken into account. It may be worth nothing that out of the three appellants in the present two appeals, two of them got the benefit of the aforesaid decision of the State Government inasmuch as their past services rendered in the Nagar Mahapalika were taken into account and they were given the benefit of the same at the time of determination of their seniority.
The insistence of the learned counsel for the appellants that only the past experience of the Nagar Mahapalika or Palika should have been taken into account by the State Government for the purposes of determining the seniority and not the work done by them in the Government departments or in other semigovernment bodies does not appeal to us at all. If the experience of work is a relevant consideration for the determination of seniority, there is no reasonable basis to hold that the experience of service rendered in the Nagar Mahapalika or Municipal Board alone should have been taken into account. The Chart given above in this judgment would show that the respondents were employed in the Government departments and, therefore, their experience earned in those departments could not be forgotten. The nature of duties or functions which they discharged in the Government departments was more or less the same as in the local bodies. In our opinion, therefore, the submission of the learned counsel for the appellants that the experience of the respondents gained in the Government departments should not have been taken into account for the purposes of determining their seniority is devoid of merit.
We have already held that Rule 24 of the Centralised Services Rules did not apply to the case of the appellants. We do not, therefore, find any reason to hold that although the said rules did not apply, the spirit behind the said rule should have still been kept into mind by the State Government in determining the seniority of the parties before us in these appeals. It is true that an executive authority cannot be authorised to modify or change an existing law in its essential feature, but where the field is vacant and the legislature has not made any provision pertaining to a subjectmatter, it is always within the competence and power of the executive authorities to issue such administrative or executive orders as they may deem necessary for the said purpose, provided of course that it does not violate the provisions of the Constitution of India and is further not inconsistent with the Act.
In the present case the learned counsel for the appellants was unable to show us any inconsistency in the executive decision taken by the State Government laying down the norms of settlement of seniority of the parties with that of any provision of the U.P. Nagar Mahapalika Adhiniyam, 1959. He could only stress the spirit behind Rule 24 for the said purpose. We are unable to find any such spirit behind this Rule which could lead as to the conclusion that the executive order issued by the State Government was against the same. Rule 24 was meant for a different and specific purpose. The provisions of the said Rule could not govern a subject matter which was beyond its purview and scope. The only other prohibition in the power of the State Government to issue an executive directions that it should not run counter to the rules framed under the Act and as in the present case there is no such inconsistency, we reject this argument of the learned counsel for the appellants as well.
Learned counsel for the respondents, Sri V.K. Mehrotra, argued that under Rule 10 of the U.P. Nagar Mahapalika Sewa Niyamavali, 1962, the words "class of posts", used in the Explanation of Clause (i) etc subrule (2) of Rule 10, showed that even under aforesaid Rule the experience of an employee working in the Mahapalika in the same or equivalent scale in some other place than the Mahapalika could be taken into account and, therefore, the decision taken by the State Government was not a new one. According to him, this decision had a historical background. The submission of the learned counsel for the respondents is not correct. The material words are ''class of posts or in posts with identical or similar duties in any local body in Uttar Pradesh''. The words ''in any local body'' shows that the words ''class of posts'' also refer to the services done in the local bodies. In fact, the words ''in any local body'' are referable to both, that is ''class of posts'' and ''in posts with identical or similar duties''. Rule 10 of the U.P. Nagar Mahapalika Sewa Niyamawali, 1962, therefore, could not be taken advantage of by the respondents either. We have already observed above that Rule 10 was framed for a different purpose and in a different context and, therefore, the said Rule could riot be brought in assistance by the appellants in support of their contention as well.
The argument of the learned counsel for the appellants that although the State Government might have been justified in classifying the old employees and the new employees into two classes, yet as there was no nexus with the object sought to be achieved, the classification hits Article 14 of the Constitution is also not tenable. We have already indicated above that the service of the old employees absorbed under Rule 6 of the Services Rules had come into existence in a different background and in dissimilar circumstances. Therefore, these two classes are so unequal that it is not possible to compare the two. In Press Trust of India and another v. Union of India and others A.I.R. 1974 S.C., 1044, the Supreme Court enunciating the principle behind Article 14 of the Constitution of India observed as below:
"Similarly, new papers and news agencies are in a different class. In these circumstances, there can be no question of any discrimination among unequals. The classification is based on an intelligible differentia, namely, the capacity of each news agencies, on the nature of the Service rendered, the source of income and the manner in which that service is rendered."
We are, however, unable to accept the contention of the learned counsel for the appellants that the classification was not based on intelligible differentia. The members of the staff and officers under Rule 6 of the Services Rules initially belonged to different Municipal Board and Mahapalikas. They were blocked together and put in a common pool. They had worked in different Municipalities, small and big, and other local bodies. They were brought in one service. In these circumstances, there was no other way to determine the seniority of these persons except by taking into consideration their past experience as well. If this was not done, some injustice was likely to be occasioned to those who were brought in the new service, although they were working in Mahapalika or in first class Munich palities. The object, therefore, in making the classification was the determination of seniority of these officers absorbed in the new service.
The last thing which deserves mention at this place is that the appellants belonged to the category of the respondents. They cannot challenge the vires of the new principle of determination of seniority applied by the State Government on the ground that the same is in contravention of Rule 24 of the Services Rules when they are not covered by it. They have themselves been benefited. Accordingly, we hold that the appellants could not challenge the vires of determination of the seniority on the basis of Article 14 of the Constitution of India.
In the result, we dismiss both the appeals with costs.
