LexS. N. KHARKHANIS & ORS. versus UNION OF INDIA & ORS
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8 c I) E F G II [A. 589 S. N. KHARKHANIS & ORS. '" UNION Or' INDIA & ORS. March 14, 1974 · N. RAY, c. J., P. JAGANMOHAN REDDY, s. N. DWIVEDI, P. K. GOSWAMI AND R. S. SARKARIA, JJ.J Co11stitutio11 of India, Art. 309, proviso-Integrating two Class I servicts /Jy Presidential Resolution-Date of integration rnade retrospective by Govern· n1e1u's letter-Leg(I[ ~·alidity of subsequent letter. By Presidential resolution dated 12th August, 1959, the Government or India, under the proviso to Art. 309 of the Constitution, combined two services of Central Excise Service Clnss I and Indian Customs Service Class I with effe~t from J 5th August, 1959. All the· petitioners joined the respective servfoes with effect from 13th July, 1959. Later by decision dated 7th April 1970 the Government decided that a combined list of seniority of officers in the service should be prepared with re. fere:nce to April I, 1959, as being the date of merger. The petitioners complained that by reason of this they were excluded fron1 the list of officers appointed to the initial constitution to the combined cadre even though they had joined the two separate seryices on 13th July, 1959, with the result that persons junior to them had become seniors. It was contended that the date of 1st April, 1959 on which the two services were combined for the purpose of inter se seniority was an artificial date chosen arbitrarily and is sought to be given effect to without any legal authority. HELD : The contention n1ust be uph~ld. Th.e Government had no authority to override the Presidential resolution by any subsequent decision which lacked legal authority and was violative of Art. 14 of the C:institution. The Presidential Resolu. tion of 12th August, 1959 which drew its authority from the proviso to Art. 309 was clear and categorical in that it not only showed that the question of integra· tion of the Central Excise Service Class I and the Indian Customs Service Class I which was older of the two services was under consideration of the Govcrnmenc of India for quite sometime but that "the President has now been pleased to decide that the two services should be constituted into a single service with effect from 15th August. 1959" and that "the services will initially be formed from amongst ail the existing class l officers of the Customs and Central Ex:dse Services who will hence. forth be borne on a single combined cadre for all purposes". The subsequent dcci· fiion of the Government conveyed in the lett~r of 7th April, 1970 had no legal autho. rity as it was not purported to have been made in the name or with the authority of the President of India nor did it in any wiy seek to :imend the Presidential Resolu· tion of 12th August, 1959 nor did it purport to change the date on and from v.·hich the integration was given effect to. [594 C; 593 B·DJ Since a final decision was taken on 7th April, 1970 the petitioners coulJ not havt'l come to this Court earlier. [592 H] ORIGINAL JURISDICTION : Writ Petition No. 286 of 1970. Under Art. 32 of Constitution of India for the cnfor,c:tlC!'.'. or Fundamental rights. S. N. Prasad, for the peti1ioners. G. Das and R. JV. Sachthey, for the respondents. 590 SUPREME COURT REPORTS [ 19741 3 S.C.R, ARGUMENTS For the Petitioners: By Presidential r.esolution dated J 2th August, A 1959 the Indian Customs Service Class I and the Central Excise Service Class I were integrated with effect from 15th August, 1959. The resolution also stated that "the service will initially be formed from amongst all the existing class I officers of the Customs apd Central Excise Services, who will henceforth be borne on a single combined cadre for all purposes." The Government took a decision to change the date of constitution of the cadre in 1960. On objections having been raised by the service as- sociations the matter was referred to the Union Public Service Commis- sion in 1967 and on the basis of the recommendations of the Commis- sion a final decision was taken on 7th April, 1970. For the first time in the letter of 7th April, 1970, (st April, 1959 was taken as the date on which the two services were merged and the petitioners made representations against the said arbitrary date. Since after this date some juniors were promoted, the petitioners approached this Court. As stated in paragraph 5 of the letter of 7th April, 1970 by taking the artificial date of Jst April, 1959 the pet
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