Case Note & Summary
The dispute arose in the Himachal Pradesh government service between Head Clerks and Accountants regarding seniority and eligibility for promotion to Gazetted Class II posts. The appellants were Head Clerks, while respondent Nos. 3 and 4 were Accountants. Initially, Accountants drew a higher pay scale of Rs.160-450 compared to Head Clerks' Rs.160-400. Later, by executive order dated November 11, 1976, ten temporary posts of Assistants were created and upgraded to Rs.225-500. Subsequently, statutory rules under the proviso to Article 309 of the Constitution increased the scale of pay of all Head Clerks, Assistants, and Stenographers to Rs.225-500. By proceedings dated November 2, 1979 with effect from January 1, 1978, pay of Assistants and Head Assistants was revised to Rs.620-1200, while Junior Auditors and Accountants was revised to Rs.570-1080. Separate statutory rules under Article 309 came into force on June 13, 1978, enabling Accountants and Head Clerks to be eligible for promotion as Superintendents. The Government created promotional avenues to Gazetted Class II posts in the scale of Rs.500-900 and made Head Clerks and Assistant Superintendents eligible, but did not include Accountants. Respondent Nos. 3 and 4 filed representations claiming promotion to these posts, which were rejected. They filed a writ petition in the High Court of Himachal Pradesh, which was transferred to the Administrative Tribunal. The Tribunal, by order dated May 25, 1990 in T.A. No.90/87, directed the Government to consider their claims with effect from 1977 and their entitlement for promotion as Gazetted Class II. The appellants challenged this direction before the Supreme Court. The appellants contended that although the respondents initially drew a higher pay scale, subsequent statutory revisions raised the appellants' scale to Rs.225-500 and later Rs.620-1200, surpassing the respondents' scale which remained stagnant at Rs.160-450 later increased to Rs.570-1080; therefore, the respondents could not be treated as senior to the appellants. The respondents argued that they were recruited earlier as clerks in November 1960 and May 1962, promoted as Junior Accountants in 1964-65 and as Accountants in April and July 1973, and had always been treated as senior to the appellants; executive instructions required Accountants to be kept en block senior to all others in combined seniority for promotion to Superintendents, and the fortuitous rule changes could not deny their legitimate right to promotion. The Supreme Court held that although the respondents initially drew a higher pay scale, the later statutory rules caused a jump in the appellants' pay scale from Rs.160-400 to Rs.225-500 while the respondents' scale remained stagnant; even in the subsequent revision, the appellants' scale was higher. The statutory rules made under Article 309 superseded earlier executive instructions. Since the revised pay scale of Assistants and Head Clerks was higher than that of Accountants and the statutory rules did not include Accountants as a feeder post for promotion to Gazetted Class II, the two groups could not be treated as the same class. Accordingly, the Tribunal was in clear error in directing the Government to consider Respondent Nos. 3 and 4 as senior to the appellants and in giving promotion over them. The appeal was allowed, the Tribunal's order was set aside, and the T.A. of the respondents was dismissed with no order as to costs.
Headnote
A) Service Law - Seniority and Promotion - Statutory Rules Prevail Over Executive Instructions - Constitution of India, Article 309 (proviso) - The Government initially relied on executive instructions requiring Accountants to be kept en block senior to others for promotion to Superintendents, but subsequent statutory rules under Article 309 provided for higher pay scales and promotion eligibility for Head Clerks and Assistants to Gazetted Class II without including Accountants - Held that the earlier executive instructions had to yield place to the statutory rules framed under the proviso to Article 309, and the Tribunal erred in directing promotion of Accountants over Head Clerks on the basis of those instructions (Paras 1-3). B) Service Law - Feeder Post Eligibility - Accountants Not Included as Feeder Post for Gazetted Class II - Statutory Rules under Article 309 - Head Clerks and Assistants received revised pay scale of Rs.620-1200 while Accountants remained at Rs.570-1080, and the statutory rules did not include Accountants as a feeder post for promotion to Gazetted Class II - Held that by necessary implication the two groups could not be treated as the same class for promotion, and Accountants could not claim seniority or promotion to Gazetted Class II over Head Clerks (Paras 1-3).
Issue of Consideration
Whether Accountants could be treated as senior to Head Clerks and eligible for promotion to Gazetted Class II posts despite not being included as feeder post under statutory rules and having lower revised pay scale.
Final Decision
The Supreme Court allowed the appeal, set aside the Tribunal's order dated May 25, 1990 in T.A. No.90/87, and dismissed the T.A. of Respondent Nos. 3 and 4. No costs.
Law Points
- Statutory rules under proviso to Article 309 prevail over executive instructions
- Accountants not included as feeder post for Gazetted Class II
- Higher pay scale indicates distinct class
- No seniority over Head Clerks
