Amrit Lal Berry Vs. Collector of
Central Excise, New Delhi & Ors  INSC 263 (10 December 1974)
BEG, M. HAMEEDULLAH BEG, M. HAMEEDULLAH
CITATION: 1975 AIR 538 1975 SCR (2) 960 1974
SCC (4) 714
R 1976 SC 363 (13) F 1977 SC1673 (10) F 1980
SC 444 (2)
Constitution of India 1950-Arts. 14, 16, 32
and 226-Failure to apply a rule-Whether justified invoking powers under Art.
32-Petition under Art. 32 must contain
averments in full Petitioner to satisfy the Court how his fundamental right was
infringed-Inordinate delay-Effect of-Distinction between a petition under Art.
32 and 226-Benefit of law declared by the Court to be given to others in like
circumstances without the need to go to Court Demand for justice and its
refusal must precede a petition for mandamus.
The Ministry of Home Affairs by a memorandum
dated 22-6-1949 laid down that the seniority of government servants should be
determined by the date of their appointment and not the date of their
confirmation. In the seniority list issued in 1958 by the Excise Department the
appellant was given his due place. The rule was altered in the Department by
office memorandum dated 22-12-1959 by which seniority was determined from the
date of confirmation. On 22-7-1972 an office memorandum was issued after the
judgment of this Court in Ravi Varma's case. It was alleged that this
memorandum was based on a wrong interpretation of the law laid down by this
Court because while determining the seniority of the petitioner according to
the 1949 rule. it did not award consequential benefits to which he was entitled
had the 1949 memorandum been followed.
Representations to the Government impugning
the seniority list having failed the petitioner has filed a petition under
article 32 of the Constitution.
It was contended on behalf of he respondent
that the petitions were barred by the principles of laches and acquiescence and
that the assertions in the petitions did not contain necessary averments to
establish violations of fundamental rights.
Dismissing the petitions,
HELD'. (1) The petitions rest on the
assumption that all that need to be asserted was violation of some rule
contained in an office memorandum. There is no doubt that the office memorandum
dated 22-7-1972 was issued in consequence of the decision of this Court in Ravi
Varma's case to meet the situation created by it in the context of previous
office memorandum on the subject If the 1972 memorandum had been correctly
interpreted and applied the law laid down by this Court. had been correctly
applied there was no need to proceed further with the consideration of the
[965E-F] (2)(a) A mere failure to apply a
rule which ought to have been applied may not, by itself, justify an invocation
of the powers of this Court under art. 32 of the Constitution.
In order to succeed in a petition under art.
32 of the Constitution the petitioner has to disclose how his fundamental right
has been infringed by a particular rule or decision or its application. The
impact of the rule or decision upon the facts of each petitioner's fundamental
right has to be clearly brought out. [971 B] (b) Where a petitioner alleges
that he had been denied equality of opportunity for service, during the course
of hi employment as a government servant, it is incumbent upon him to disclose
not only the rule said to be infringed but also how this opportunity was
unjustifiably denied on each particular occasion. [971 C] (c) The equality of
opportunity in a matter relating to employment implies equal treatment to
persons similarly situated or in the same category as the petitioner. It
postulates equality of conditions under which a number of persons belonging to
the same category compete for the same opportunities and a just and competing
claims. It does not exclude justifiable discrimination. [971 D] competing
claims. It does not exclude justifiable discrimination.
[971 D] 961 (d) In so far as memorandum of
1972 does not direct reconsideration of cases of' all those persons who have
actually confirmation or who were not considered at all for promotion at the
time when they ought to have been considered it fails to give, due and complete
effect to what was decided by this Court in Ravi Varma's case. [970 F] (e) As
regards the contention of the petitioner that he was not senior a grade,
neither the office memorandum of 1949 nor the petitioner save conditions of
entry into the senior grade. It was for the petitioner to satisfy the Court
that he was not given the senior grade although he satisfied all the required
conditions and that others, who were promoted into it, were given unjustifiable
preference over him. It is difficult to see how the petitioner was denied
equality of opportunity in not being given the senior grade in 1961 but was given
only in 1967. [972 F] (3) The inequality in the equitable balance brought into
being by a petitioner's own laches and acquiescence cannot be overlooked when
considering a claim to enforce the fundamental right to equal treatment. To
treat unequals equally would also violate that right. Although it may not be
possible for the State or its agents to plead an estoppel against a claim to
the fundamental right to equal treatment, yet, if a petitioner has been so
remiss or negligent as to approach the Court for relief after an inordinate and
unexplained delay, he certainly jeopardises his claims as it may become
inequitable, with circumstances altered by lapse of time and other facts, to
enforce a fundamental right to the detriment of similar claims of innocent third
[973 B] Rabindra Nath Bose & Ors. v.
Union of India & Ors.  2 S.C.R 697 and Ramachandra Shankar Deodhar
and Ors. v. The State of Maharashtra and Ors.,  S.C.R. 317 @ 325-326,
(4) Ravi Varma's case was decided on an appeal
from a decision of the High Court in Writ Petition under Art. 226 of the
Constitution. It was enough, for the purposes of a petition under Art. 226 to
show a violation of an applicable rule of seniority laid down in the relevant
executive instructions. But in a petition under Art. 32 of the Constitution
violations of fundamental rights under Art.
16)1) of the Constitution have to be
[975 D] Union of India v. Vasant Jayaram
Karnik & Ors. A.I.R. 1970 SC 2092 distinguished.
(5) (a) Merely by filing repeated or delayed
representations, a petitioner cannot get over the obstacles which, delay in
approaching the Court creates, because equitable rights of others may have
arisen. When a citizen aggrieved by the action of a government department has
approached the Court and obtained a declaration of law in his favour, others,
in like circumstances, should be able to rely on the sense of responsibility of
the department concerned and to expect that they will be given the benefit of
this declaration without the need to take their grievances to Court. [976 D]
(b) A demand for justice and its refusal must precede the filing of a petition
asking for direction or writ of mandamus. [976 E] Kamini Kumar Das Choudhury v.
State of West Bengal and Ors.
AIR 1972 SC 2060 @ 2065, referred to.
(6) (a) The 1972 memorandum may fairly be
interpreted to mean that (a) the 1949 memorandum will apply to all cases
covered by it till the 1959 memorandum came into effect (b) that those who are
in good faith and in the regular course, confirmed and/or promoted regularly,
though, by an honest misapplication of the 1959 memorandum will not be
disturbed even if they be junior to the claimants under the 1949 memorandum;
(c) that in future, for vacancies and quotas, those with longer service, as
contemplated by the 1949 memorandum, will be considered for confirmation and
promotion: and (d) that in the subsequent career of those who stand to benefit
by the 1959 memorandum, that factor will be reckoned in their favour when further
opportunities for promotion arise, so that they may not suffer for ever from
the mis-construction of the memorandum made by the Excise Department. [976 G-H;
977 A] 962 (b) The seniority of all unconfirmed persons is to be determined in
accordance with the law as declared by this Court on 4-1-1972, but, as regards
persons who had already been bona fide confirmed or promoted before 4-1-1972,
'no undoing of what had already been done in their favour would be possible.
Nevertheless, it was laid down there that the cases of those who had failed to
be either considered for confirmation or promotion merely because of the
failure to apply the length of service 'rule for determining seniority would
not suffer but will be reconsidered now subject to existence of vacancies in
the grade for confirmation, or 'in the promotion quota. [977 F] In the instant
case, the petitioner in writ petition No. 463 of 1971 did not paw the
prescribed departmental examination until November, 1954. He was confirmed as
soon as he could reasonably be considered on the occurrence of the vacancy
after he passed his examination. If the reasons for the earlier confirmation of
some persons who obtained earlier promotions in the year 1971, are justiable on
grounds other than length of service, it is difficult to see how the petitioner
could complain of any unjust treatment violative of Art. 16(1) of the
Constitution. A number of promotions having taken place between 1959 and the
filing of the petition in 1971; and those who were so promoted and had been
satisfactorily discharging, for considerable periods, before the filing of the
petition. their duties in a higher grade would acquire new claims and
qualification by lapse of time and due discharge of their new functions so that
they could not, unless relief has been sought speadily against their allegedly
illegal confirmation and promotions be equitably equated with the petitioner.
[972 H; 973 A]
ORIGINAL JURISDICTION: Writ Petitions Nos.
463 of 1971 & 2004 of 1973.
Petitions under Art. 32 of the Constitution
DP. L. Singhvi, S. K. Mehta and M.
Qamaruddin, for the petitioners (In W.P. No. 463/71.) S. K. Mehta and M.
Qamaruddin, for the petitioners (In W.P. No. 2004/73) M. N. Phadke and M. N.
Shroff, for respondents (In W.P.
No. 463/71) and respondents Nos. 1--4 (In
W.P. No. 2004/73) The Judgment of the Court was delivered by BEG, J.-Amrit Lal
Berry in Writ Petition No. 463 of 1971 and K. N. Kapur & 14 others in Writ
Petition No. 2004 of 1973 have applied to this Court under Article 32 of the
Constitution of India. They complain of violation of Article 16 of the
Constitution on the ground that they were illegally discriminated against by
the respondents inasmuch as they were not confirmed and then promoted when they
ought to have been. They assert that if, according to the applicable rule, they
had been assigned their correct places in the seniority lists, as laid down in
the Office Memorandum dated 22-6-1949, prepared by the Ministry of Home
Affairs, they would have been duly promoted. Each of them, on similar facts,
relies upon the law laid down by this Court, in Union of India v. M. Ravi Varma
& Ors. etc.(1) Assertions id the petition of Amrit Lal Berry illustrate the
nature of the cases of all the petitioners. We will indicate the cases, of the
parties before we take up the questions of law arising for consideration and
decision by us here.
Amrit Lal Berry was appointed Inspector in
the Central Excise Collectorate at Delhi, by orders dated 22-11-1948, and, on
4-12-1948, was posted at Forozepur. On 22-6-1949, the Ministry of Homo (1)
 2 S.C.R. 992.
963 Affairs. issued a Memorandum containing
the principle that the, seniority of existing Govt. servants will be determined
by the date of their appointment and not from the date of their confirmation.
The petitioner asserts that, in accordance with this principle, he was
correctly assigned his seniority in the list issued in 1958 after the
petitioner'had been confirmed in a permanent post under an order dated 5-5-1956
with effect from 1-7-1955. An extract from the order shows that,. although, the
petitioner is a B.A. and shown as appointed on 15-12-1948, and; Narinder Singh,
the Inspector next in order of seniority, who was only a Matriculate, appointed
subsequently on 7-2-1949, was confirmed retrospectively with effect from
1-7-1953, that is to say, two years earlier than the petitioner. There is,
however, a difference in age shown between the two inasmuch as the date of
birth of the petitioner is given as 5-4-1925 whereas that of Narinder Singh is
shown as 24-7-1911. The petitioner points out that, despite these different
dates of confirmation of Inspectors, so that juniors were sometimes confirmed
earlier , they retained their seniorities in accordance with the Office
Memorandum of 22-6-1949 which made the length of service the only material
consideration for purposes of seniority. But, after the Office Memorandum dated
22-12-1959, the rule applied was altered in the Excise Department. New
seniority lists were prepared in which seniorities were determined from the
dates of confirmation.
The result was that Government servants, who
ought to have been placed below the petitioner have been, it, is asserted,
promoted as Superintendents of Central Excise in the years 1970 to 1971. The
petitioner gave a list of twelve juniors who have been so promoted because,
according to him, the impugned seniority list of 1-7-1967 illegally put them
above the petitioner. The petitioner also complained that, owing to the
illegally prepared seniority list, he had been given the grade of a Senior
Inspector only on 8-12-1967 and not with effect from 21-3-1961 as it ought to
have been done.
The petitioner complains of the allegedly
illegal confirmation. going as far back as 1955, and illegal seniority lists
prepared after 22-11-1959. He has annexed copies of representations dated
6-3-1965, and, 13-8-1971, to which, according to him, no replies were given.
The petitioner, therefore, came to this Court seeking relief against what he
describes as the impugned list which, according to paragraph 8 of his petition
is dated 1-7-1967 (Annexure 7 to his petition), and to allegedly illegal
promotion of juniors without setting out the names or dates of promotions of
all those so promoted. Presumably, these promoted Inspectors are the 77 persons
impleaded as respondents 5 to 81 in the petition before us. Out of these, only
twelve, with their places shown as lower than the petitioner's number 204 in
the list prepared before 1959. were specifically mentioned in the list of
allegedly illegal promotions of' 1970-71. Amrit Lal Berry's petition to this
Court was filed on 9-12-1971.
By an application dated 9-3-1973, Amrit Lal
Berry sought an amendment of his Writ Petition asking this Court to quash the
Office Memorandum dated 22-7-1972 on the ground that it does not interpret
correctly the judgment of this Court in Ravi Varma's case (supra) 964 delivered
on 4-1-1972. The, petitioner contends that office Memorandum, dated 22-7-1972
was baud on a wrong interpretation of the law laid down by this Court inasmuch
as, while determining the seniority of the petitioner according to the 1949
rule, it does not award consequential benefits which would have been reaped by
the petitioner in the past, if the seniority rule, laid down in the 1949
memorandum, had been followed in the past.
K. N. Kapur and 14 others also give the dates
of their appointments as Inspectors ranging from 15-5-1944 in the case of K. N.
Kapur to 19-1-1950 in the case of Ravinderlal.
The dates of confirmation vary from 1-7-1956,
in the case of K. N. Kapur, to 1-12-1962, in the case of S. L. Chopra. The
dates of their entry into the senior grade also extend from 29-3-1965, in the
case of M. S. Ahluwalia, to 22-11-1971, in the cases of P. L. Sharma and R. L.
Kapania. Columns in a list given in the Writ Petition, showing the serial
numbers accor ding to the seniority list prior to 22-12-1959 and the subsequent
seniority list of 1961, show wide gaps the biggest of which is in the case of
K. N. Kapur who came down from his place at No. 32 to No. 252. The seniority
list complained of was, however, stated to be, the one prepared in 1961. All
the petitioners assert that the seniority lists of 1958 to 1959 were correctly
prepared in accordance with the Office Memorandum of 22-6-1949. The whole mischief,
according to the petitioners, resulted from misplacing of the names of the
petitioners, after the 1959 memorandum, in the seniority list of 1961, which
ignored the correct or applicable principle for preparation of the senio rity
lists according to the memorandum of 1949.
The Writ Petition of K. N. Kapur and 14
others dated 20-101973 was filed on 22-10-1973. In this petition, it is
asserted that the office memorandum dated 22-7-1972 issued by the Ministry of
Home Affairs (Annexure 'D' to the petition) and the Office memoranda, dated
16-3-1973 and 17-3-1973, issued by the Ministry of Finance, are illegal
inasmuch as they do not properly give effect to the decision of this Court in
Ravi Varma's case (supra). The petitioners asked for the quashing of office
memorandum dated 22-7-1972 prepared by the Ministry of Home Affairs and the
office memoranda dated 16-3-1973 and 17-3 1973 prepared in the Ministry of
Finance. The further relief asked for is that this Court may direct the
Collector of Central Excise and the Union of India to implement the decision of
this Court given on 4-1-1972 in Ravi Varma's case (supra) so that the office
memorandum dated 22-6-1949 and not the office memorandum dated 22-12-1959 may
govern the cases of the petitioners. They also claim the award of all benefits
consequential to the correct preparation of seniority lists, such. as
confirmations, promotions, and payments of amounts which should have been made
in the past.
The petitions were opposed on various
grounds. The alleged violation of the law by the memoranda of 1972 and 1973
were, it was submitted, only attempts made by the opposite parties to adjust
the operations of two opposing principles of justice and law laid down by this
Court : the seniority according to length of service rule of 1949 and what may
be called the principle of non-disturbance of rights 965 claimed due to
confirmations or promotions to a higher post going far back. It was submitted
that there had been no infringement of any right or provision of law at all.
Alternatively, it was urged that,' even if
the petitioners could make out violation of any applicable rules of law
regulating the conditions of service of the petitioners, they do not establish
the denial of any fundamental right of the petitioners Constitution. In any
event, the petitions are said to be barred by the principles of laches and
acquiescence. It was also suggested by the learned Counsel for the opposite
parties, particularly in the case of K. N. Kapur & Ors., that the cause of
action asserted by each alleged infringement of a right being separate on each
occasion it should have been made the subject matter of a distinct and separate
petition assailing the particular alleged infringement on each occasion. In the
case of K. N.
Kapur & others, the contention appeared
to be that there was not only a 'misjoinder of causes of action but also of a
number of petitioners each of whom could only have a separate cause of action
whenever any alleged violation of a fundamental right took place. It was also
submitted that the assertions in the applications did not contain necessary
averments to establish violations of fundamental rights so that petitions under
Article 32 of the Constitution should be dismissed in Iimine on this ground
alone. It was pointed out that the petition of K. N. Kapur and others did not
even disclose a demand made to the opposite parties to do justice, followed by
its refusal by the opposite parties, so that a condition precedent to the issue
of a Writ of Mandamus was also wanting here.
It is true that assertions in each of the two
petitions are of a very general character. The petitions seem to rest on the
assumption that all that need be asserted is the violation of some rule
contained in an, office memorandum which governed the rights of the petitioners
in the, past.
There is no doubt that. the office memorandum
of 22-7-1972' was issued, 'in consequence of the decision of this Court in
Ravi' Varma's case (supra) dated 4-1-1972, to meet the situation created by it
in the context of previous office memoranda on the subject. If the 1972
memorandum correctly interprets and applies the law laid down by this Court
there would be no need to proceed further with the consideration of the
petitions before us. This memorandum itself' gives the history of previous
relevant office memoranda and the need' for their displacement by new
instructions due to the decision of this Court in Ravi Varma's case. It reads
as follows "No. 9/3-/72-Estt. (D) Government of India Cabinet Secretariat,
Department of Personnel, New Delhi, dated the 22nd July, 1972.
OFFICE MEMORANDUM SUBJECT :-Supreme
Court-Civil Appeals Nos.
1845 of 1968, 1846 of 1968 and 50 of 1969Interpretation
of Ministry of' Home Affairs O.M. No. 9/11/55-RPS., dated 12-12-1959.
regarding general principles for determining
seniority of' various categories of persons employed in Central Services966 As
the Ministry of Finance etc. are aware, under the orders contained in Ministry
of Home Affairs O.M. No. 30/44/48Apptts., dated 22-6-1949, (copy enclosed as
annexure 1), seniority in a grade was to be determined, as a general rule, oil
the basis of the total length of continuous service in the grade, as well as
service in an equivalent ,grade, the term "Service in an equivalent
grade" being defined as service on a rate of pay higher than the minimum
of the time-scale of the grade concerned, irrespective of whether it was
rendered in the Central or Provincial Government in India or Pakistan.
Seniority of persons appointed on a permanent or quasi-permanent basis prior to
the 1st January, 1944 was, however, not disturbed by the office memorandum of
22-6-1949. The instructions contained in that O.M. were issued in order to
safeguard the interests of displaced Government servants appointed to Central
Services after partition, but as it was not possible to regulate the seniority
of only displaced Government servants by :giving them credit for previous
service, the instructions of 22-6-1949 referred to above were made applicable
to other categories of persons also a appointed to Central Services. There
were, however, certain services/posts which were exempted from the operation of
the O.M. ,of 22-6-1949. In the course of time, displaced Government servants
had, by and large, been absorbed in the various Central Services and their
seniority fixed with reference to the length of service rendered by them, as
provided in the O.M. of 22-6-1949. It was, therefore, felt that it was no
longer necessary to apply the instructions of 22-6-1949 in preference to the
normal principles for determination of seniority. As a result, revised
principles of seniority were issued in December, 1959, in consultation with the
Union Public Service Commission, vide Ministry of Home Affairs O.M. No.
91/11/55-RPS, dated 22-12-1959 (.copy.
enclosed as annexure 11), which is still in
2. As would be seen from para 2 and 3 of the
O.M. of 22-12-1959 mentioned above, except as otherwise provided in that O.M.
or except for such services and posts for which separate principles of had
already been issued or which might be issued thereafter, the seniority of all
persons appointed to the various Central services after the date of that O.M.
(viz. 22-12-1959) was to be determined in accordance with the general,
principles of seniority contained in the annexure to that O.M. and those
general principles were not to apply with retrospective effect.
According to para 2 of the annexures to that
O.M., persons appointed in a substantive or officiating capacity to a grade
prior to the issue of the general principles of seniority shall retain their
relative seniority already assigned to them, or such seniority as may
thereafter be assigned to them under the existing orders applicable to their
cases and shall en bloc be senior to all others in that grade. However, para 3
of the annexure provides that permanent officers of each grade shall be ranked
senior to persons who Ire officiating in that grade.
3. Keeping in view the objectives of the
revised instructions contained in the O.M. of 22-12-1959, the Ministry of Home
Affairs (now department of personnel) have all along held that while persons
appointed prior to 22-121959 will retain their relative seniority already fixed
under the then existing orders, with effect from 22-12-1959, 967 permanent
employees of a grade, including those confirmed in that grade prior to
22-12-1959, will rank en bloc senior to non-permanent employees of that grade,,
irrespective of the fact whether such non-permanent employees were appointed to
the grade before, on, or after 22-12-1959. Amongst permanent employees
confirmed in the grade prior to 22-121959, their relative seniority already
fixed according to the then existing orders would be maintained and they will
rank senior to those confirmed in that grade after 22-121959. Amongst those
confirmed after 22-12-1959, the relative seniority will be according to the
order of confirmation. Similarly, amongst non-permanent employees of a grade,
the relative seniority of those appointed prior to 22-12-1959 will be on the
basis of the then existing orders, but they will rank on bloc senior to those
appointed to that grade,' after 22-12-1959, but not yet confirmed in the grade.
4. This matter, however, came up for
consideration before the Supreme Court in Civil Appeals (1) No. 1845 of 1968
(Union of India and others Versus M. Ravi Varma and others), (2) No. 1846 of
1968 (Union of India and others Versus S.
Ganapati Kini and others) and (3) No. 50 of
1969 (Union of India and others Versus Suresh Kumar and others). In its
judgment, dated 4-1-1972 (copy annexure 111) in these cases, the court has not
agreed with the view taken by the Ministry of Home Affairs (now Department of
Personnel) in this matter, as 'outlined in para 3 above. The court while
dismissing the three appeals has held that, except in certain cases (with which
the Court were not concerned), the general principles embodied in the annexure
to the O.M. of 22-12-1959 did not have retrospective effect and could not apply
to persons appointed to the various Central Services before that date. As a
result of the judgment, the question whether, and if so, to what extent the
seniority of persons appointed on a regular basis prior to 22-12-1959, which
hadbeen determined according to the O.M. of 22-6-1949 or office Memorandum no.
65/ 28/49-DGS(Apptts), dated the 3rd February, 1950, No. 31/223/50DGS dated the
27th April, 1951, or No. 9/58/56-RPS dated the 4th August, 1956, but which had
subsequently been revised according to the view taken in the matter vide para 3
above, should be revised further, has been examined in consultation with the
Union Public Service Commission. and it has been decided that in services/posts
under the Central Government to which the general principles for determining
seniority contained in the office memorandum of 22-12-1959 apply, seniority of
such persons should, with effect front 4th January 1972 (the date of the
judgment of the Supreme Court) be restored as it stood on 21-12-1959 in the
grade concerned, irrespective of the fact or date of their confirmation and
such persons along with those appointed on a regular basis to the grade prior
to 22-121959, shall continue to remain en bloc senior to the persons appointed
to that grade after 22-12-1959. The revision of seniority in such cases will
not, however, affect the confirmations already made in the grade prior to 4th
January, 1972 or regular promotions therefrom prior to that date. Confirmations
promotions made on or after 4th, January, 1972 shall be reviewed, Wherever
necessary in the light of the above decision. If any person whose seniority is
now revised according to these orders 968 is still not confirmed, though a
person junior to him has been confirmed, he may also now be considered, subject
to availability of permanent vacancies in the grade, for confirmation in the
grade, if he is otherwise eligible for the same and is suitable for it.
Similarly, if a person whose seniority is ?tow revised under these orders was
not considered for promotion prior to 4-1-1972 for want of the requisite
seniority, he may also be considered for such promotion subject to availability
of promotion quota vacancies in the higher grade, if he is otherwise eligible
for the same. However, on promotion to the higher grade, the seniority of such
persons among the promotees in the higher grade would be regulated in
accordance with para 5 of the general principles of seniority contained in the
annexure to Ministry of Home Affairs' office memorandum of 22-12-1959.
5. In this connection it may also be
mentioned that the general principles of seniority contained in annexure to
Ministry of Home Affairs O.M. dated 22-12-1959 were applied to some
service/posts from a date subsequent to 22-12-1959.
Such a course was permissible, vide para 3 of
the O.M. dated 22-12-1959 referred to above. If, in those services/posts,
seniority was actually continued to be determined beyond 2212-1959 in
accordance with the instructions laid down in Ministry of Home Affairs' O.M. of
22-6-1949, seniority of the employees in the service/posts concerned might have
been revised from the date from which the general principles of seniority
contained in the annexure to the O.M. of 22-121959 were adopted in respect of
those services./posts on the basis of the interpretation of the Ministry of
Home Affairs (now department of Personnel) given in para 3 above. In such cases
also, the principle laid down by the Supreme Court would apply, viz. that the
seniority of persons appointed to the services/posts referred to above prior to
the date of application of the principles contained in the O.M. of 12-12-1959,
would continue to be governed by the rules/orders in force before such
application. Hence the action Suggested in para 4 above would apply pari passu
to those cases as well.
6. Ministry of Finance etc. are requested to
take action accordingly in respect of Government employees serving in or under
HARISH CHANDRA Under Secretary to the
Government of India.
To All Ministries with usual number of spare
copies. Departments of the Government of India (including all attached and
subordinate offices under the Department of Personnel.
Commissioner for Linguistic Minorities,
Institute of Secretariat Training and
Management, New Delhi.
D.G.E. &'I'. D.G., P & T and Bureau
of Public Enterprises.
All Union Territory
All regular sections of Department of
969 No. 9/3/72Estt. (D) Dated the 22nd July,
Copy with 10 spare copies forwarded to the
Secretary, Union Public Service Commission with reference to the UPSCs letter No.
F.2/14/72-S.11 dated 5th May, 1972.
HARISH CHANDRA Under Secretary to the
Government of India." Each party before us relies upon the contents of an
office memorandum as interpreted by this Court in Ravi Varma's case (supra).
The case of the respondents, however. is that this Court did not have before it
for consideration, in Ravi Varma's case (supra), the effect of rights which may
have been acquired by Central Govt. servants, other than the petitioners then
before the Court by reason of earlier confirmation and promotions whether
rightly or wrongly made.
It is also urged that this Court was not then
concerned with the correctness of the practical solution attempted by the
memorandum of 1972, the validity of which is assailed by the Petitioners before
us now only on the ground that it incorrectly interprets the judgment of this
Court in Ravi Varma's case (supra) but not on the ground that the Govt..
did not have the power to lay down the
correct principle for determining seniority by means of a decision or rule
contained in an office memorandum. The petitioners, however, contend that the
result of the misinterpretation by the office memorandum of 1972 of the
decision of this Court in Ravi Varma's case (supra) is that the
petitioners" rights under Article 16 of the Constitution are violated,
whereas learned Counsel for the respondents denies any such violation of a
fundamental right irrespective of whether his contention, that the 1972 office
memorandum correctly interprets judgment of this Court in Ravi Varma's case is
accepted or not.
As this Court had, in Ravi Varma's case
(supra), set out the pro-visions of the memoranda of 22-6-1949 and 22-12-1959
in extenso, it is not necessary for us to reproduce their contents. We will
only indicate the conclusions which emerged from their consideration irk Ravi
This Court had, after pointing out that the
principles contained in the office memorandum of 22-6-1949, although intended
originally to meet the situation created by the partition of India and the need
to absorb the influx of a large number of new Central Govt. servants, whose
seniority had to be determined, were more generally applied to all Central
Govt. servants, proceeded to hold that the provisions of the memorandum of 1959
specifically stated that they were prospective and did not affect cases which
were governed by the earlier office memorandum. The effect of the provisions of
the office memorandum of 22-12-1959 was held to be that the new principle
"could not apply to the persons appointed to the various Central Services
before the date of that memorandum." It was also observed there that this
Court had, even in Marvyn Coutindo & Ors. v. Collector of Customs, Bombay
& Ors.,(1) held that the new principle of seniority, contained in
memorandum of 22-12-1959, was not to apply retrospectively. In fact, the so
called new principle of 1959 was a restoration of a principle applied before
the memorandum of 1949 ' issued to meet a special and unprecedented situation
created by the (1)  3 S. C. R. 600.
-L346Sup CI/75 970 influx of a_large number
of Government servants as a result of the partition of India. It may be
observed here that the validity of the so called "new" principles of
1959 memorandum is not assailed before us on the ground that they, standing by
themselves, violate Article 16)1) of the Constitution. Ravi Varmas case (supra)
was decided on the assumption that the whole memorandum of 1959 was valid but
bad been misinterpreted and misapplied.
We find, from paragraph 4 of the, memorandum
of 1972, that, with effect from 4-11-1972, when this Court pronounced judgment
in Ravi Varma's case, (supra), the pre-1959 seniority of all person was
restored, or, in other words, it was to be governed by the 1949 memorandum
"irrespective of the fact or date of their confirmation and such persons
along with those appointed on a regular basis to the grade prior to 22-12-1959,
shall continue to remain en bloc senior to the persons appointed to that grade
Nevertheless, it is laid down there that this
restoration of seniority will neither affect the confirmations already made in
a grade nor promotions made there from prior to 4-1-1972.
Evidently, this was an attempt to recognise
and preserve the rights, if any, of those already confirmed or promoted before
4-1-1972 so that these are not undone. The prospect, however of confirmation,
after due consideration of their cases, was. held out to Government servants
who were still not confirmed although their juniors had been so confirmed in a
VS& provided that such Government servants satisfied eligibility tests.
Similarly, cases of those superseded by. juniors in making promotions were to
be considered afresh for promotion. Such consideration for confirmation or
promotion was, however made to depend on the existence of vacancies, in the
quotas for confirmation or promotion of Government servants.
It does appear to us that, in so far as
memorandum of 1972 does not direct reconsideration of cases of all those
persons who have actually missed confirmation or who were not considered at all
for promotion at the time when they ought to have been considered, it fails to
give due and complete effect. as a matter of general policy, ID what was
decided by_ this Court in Rovi Varma's case (supra). The excuse put forward on
behalf of the respondent is that rights said to be created by the actual facts
of confirmations and promotions in the past cannot now be taken away by the
respondents and that more persons cannot be introduced in any grade than its
sanctioned strength. It is true that the petitioners were not parties to the
decision in Ravi Varma's case (supra) so that they cannot claim the benefit
directly of any direction given in that case. It seems that it for this reason
that learned Counsel for the respondents attaches considerable importance to
delay in approaching this Court against alleged illegalities. We are unable to
commend the argument, coming as it does on behalf of a Department of the State,
that the effect of the decision of this Court in Ravi Varma's case must be
confined to parties before the Court in that case. We are, however, concerned
here with the meaning and affect of the Memorandum of 1972 which proceeds on
971 the correct footing that the Central Excise Department was duty bound to
give effect to the law declared by this Court in Ravi Varma's case. But, we may
point out here that a mere failure to apply a rule which ought to have been
applied may not by itself, justify an invocation of the powers of this Court
under Article 32 of the Constitution.
In order to succeed in a petition under
Article 32 of the Constitution the petitioner has to disclose how his
fundamental right has been infringed by a particular rule, or decision or its
application. The impact of the rule or decision upon the facts of each
petitioner's case has to be clearly brought out.
In the cases before us, the fundamental
rights alleged to be violated could only be the general ones embraced by
Article 16(1) of the Constitution which reads : "There shall be equality
of opportunity for all citizens in matters relating to employment or
appointment to any office under the, State". Where a petitioner alleges
that he has been denied equality of opportunity for service, during the course
of his employment as a Government servant, it is incumbent upon him to disclose
not only the rule said to be infringed but also how this opportunity was
unjustifiably denied on each particular occasion. The equality of opportunity
in a matter relating to employment implies equal treatment to persons similarly
situated or in the same category as the petitioner. It postulates equality of
conditions under which a number of persons belonging to the same category
compete for the same opportunities and a just and impartial application of
uniform and legally valid standards in deciding upon competing claims. It does
not exclude justifiable discrimination.
If we examine the-particular facts of the
case of Amrit Lal Berry we find that there were _grounds for believing that
such distinctions as were made, in the matter of his confirmation and promotion
as compared with those who joined service after him could have resulted from
justifiable grounds of discrimination from the point of view of an application
of Article 16(1) of the Constitution. Thus, as already indicated above,
although, it appears, on the, face of it, unjust that the petitioner Amrit Lal
Berry, who is a B. A. and entered service on 15-12-1948, should be confirmed
from 1-7-1955, but, Narinder Singh, who is only a Matriculate and entered into
service on 7-2-1949, should be confirmed from 1-7-1953 under orders of the
Collector of Central Excise dated 5-5-1956; yet, this difference is explained
by the uncontroverted assertion in paragraph 3 of the count" affidavit
dated 10-10-73 of Shri N. Subramanian, Under Secretary, that the petitioner did
not pass the prescribed departmental examination until November 1954. It
appears that, the petitioner Amrit Lal '.Berry was confirmed as soon as be
could reasonably be confirmed on the occurrence of a vacancy in the permanent
cadre after he bad, passed his examination, as required by rule 7 of the
Departmental Examination Rules, made applicable on 25-6-1949 to all existing
officiating and temporary Government servants in the Central Excise Department.
He could not have, therefore, complained on that score. He has not shown that
be was not treated as others in the same grade who had not passed the
prescribed examination before confirmation.
Indeed, be has not even impleaded Narinder
Singh as an opposite party. He 972 Was Confirmed as long ago as 1955. The real
and only ground of his complaints seems to be that the imposition of a test as
a condition Precedent to confirmation has delayed his confirmation by two
years, And, that was long before even the 1959 memorandum.
If the reason for the earlier confirmation of
some persons, who obtained earlier promotions in the year 1970-71, is
justifiable on :rounds other than length of service, it is difficult to see how
a petitioner in the position of Amrit Lal Berry could complain of any unjust
treatment violative of Article 16(1) of the Constitution. On* cannot find, in
the petition, any ground for his assertion that he could have been confirmed or
promoted earlier than those who entered service after him except that he, entered
service earlier. But to accept such a claim, built on a bald and single ground,
would be to overlook that confirmation, even according to the rules applicable
in 1949, depended also on conditions other than mere length of service. This
aspect of the case was not involved in Ravi Varma's case (supra).
At any rate, no party in that case seems to
have relied on Any rule or provision outside the two memoranda. one of 1949 and
another of 1959, considered there.
Another grievance of the petitioner Amrit Lal
Berry was that he was not given the senior grade of Inspectors with effect from
21-31961 but only from 8-12-1967. He attributes this result merely to his wrong
place in the seniority list due to his delayed confirmation. At the same time,
he asserts that he crossed the Efficiency Bar on 12-61968. If crossing the
Efficiency Bar was a condition precedent to getting the senior grade he was
given that grade earlier than 1968. It is not clear, either from the assertions
made by the petitioner or in the counter affidavits, whether crossing the
Efficiency Bar was a condition precedent to entry into the senior grade or mere
length of service was enough for this purpose. Neither the office Memorandum of
1949 nor the petition of Amrit Lal Berry gives conditions of entry into the
senior grade. It,-was for the petitioner to satisfy the Court that he was not
given the senior grade although he satisfied all the required conditions of it
and that others, who were promoted into it, were given unjustifiable preference
over him. It is difficult, on the assertions made in the affidavits before us,
to see how the petitioner war. denied equality of opportunity in not being
given the senior grade in 1961 but only in 1967.
Even if we were to assume, as the petitioner
would like us to do, that a disregard of seniority determined solely by length
of service was the only reason for his failure to get the senior grade in 1961.
there is yet another hurdle before the petitioner which was not shown to be
present in Ravi Varma's case (supra), and, therefore, not considered or
adjudicated upon in that case. There, no objection based on delay in applying
to the Court was taken persumably because it could not be taken. But, a number
of promotions having taken place between 1959 and the filing of Amrit Lal
Berry's petition in 1971, those who were so promoted and had been
satisfactorily discharging, for considerable periods before the filing of the
petition, their duties in a higher grade would acquire new claims and
qualifications, by 973 lapse of time and due discharge of their new functions
so that they could not, unless relief had been sought speedily against their
allegedly illegal confirmations and promotions, be equitable equated with the
petitioner The equality in the equitable balance brought into being by a
petitioner's own laches and acquiescence cannot be overlooked when considering
a claim to enforce the fundamental right to equal treatmentTo treat unequals
equally would also violate that right. Although, it may not be possible for the
State or its agents to plead an estoppel against a claim to the fundamental
right to equal treatment, yet, if a petitioner has been so remiss or negligent
as to approach the Court for relief after an inordinate and unexplained delay,
be certainly jeopardises his claims as it may become inequitable, with
circumstances altered by lapse of time and other facts, to enforce, a
fundamental right to the detriment of similar claims of innocent third persons.
Learned Counsel for the opposite parties has
relied on Rabindra Nath Bose & Ors. v. Union of India & Ors. (1) where,
because rights of persons who had benefited from allegedly illegal seniority
rules for a long time would be disturbed, this Court dismissed a petition under
Article 32 on the ground of inordinate delay in seeking relief. This Court said
there (at p. 712) :"It is said that Art. 32 is itself a guaranteed right.
So it is, but it does not follow from this that it was the intention of the
Constitution markers that this Court should discard all principles and grant
relief in petitions filed after inordinate delay.
We are not anxious to throw out petitions on
this ground, but we must administer justice in accordance with law and
principles of equity, justice and good conscience. It would be unjust to deprive
the respondents of the right which have accrued to them. Each person ought to
be entitled to sit back and consider that this appointment and promotion
effected a long time ago would not be set aside after the lapse of a number of
Learned Counsel for the petitioners has
relied upon observations in a recent decision of this Court in Ramchandra
Shankar Deodhar & Ors. v. the State of Maharashtra & Ors., (2) where
after considering earlier cases It was observed (at p. 325-326) :
"There was a delay of more than ten or
twelve years in filing the petition since the accrual of the cause of complaint,
and this delay, contended the respondents, was sufficient to disentitle the
petitioners to any relief in a petition under Art. 32 of the Constitution. We do
not think this contention should prevail with us. In the first place, it must
be remembered that the rule which says that the Court may not inquire into
belated and stale claims is not a rule of law, but a rule of practice 'based on
sound and proper (1)  2 S.C.R. 697.
(2)  1 S.C.C, 317 @ 325-26 974 exercise
of discretion, and there is no inviolable rule that whenever there is delay,
the Court must necessarily refuse to entertain the petition. Each case must
depend on its own facts".
Rabindra Nath Bose's case (supra) was
distinguished here on the ground that no rights, legal or equitable, of third
parties had arisen by lapse of time in the case before the Court. The following
principle laid down in Tilokchand Motichand v. H. B. Munshi(t) was also
"The party claiming fundamental rights
must move the Court before other rights come into existence. The action of
Courts cannot harm innocent parties if their rights emerge by reason of dalay
on the part of the person moving the Court".
It is true that Amrit Lal Berry had amended
his petition so as to make it appear that a fresh cause of action accrued in
his favour on 22-7-1972 when the office memorandum set out in full above was
issued during the pendency of his Writ Petition, and the Writ Petition of K. N.
Kapur and others purports to be directed against the office memorandum of 1972
consequential instructions. Nevertheless, when we examine the contents of that
office memorandum and the substance of the petitions before us, it becomes abundantly
clear that what was bring really sought by the petitioners was setting aside of
a number of confirmations and promotions which had taken place long before the
Writ Petitions were filed without even making necessary assertions to indicate
precisely the occasions on which allegedly illegal confirmations and promotions
took Place and of which person or persons exactly on each occasion. As we have
pointed out above, at least those who had boon promoted could, after a lapse of
a number of years in their new posts, be regarded equitably as persons in a new
and separate class.
It is true that the concerned Central Excise
Department officials would have known the correct legal position if they had
cared to study the decision of this Court in Mervyn Coutindo & Ors. v.
Collector of Customs, Bombay & Ors.
(supra) which was pronounced on 14-2-966.
There, this Court had pointed out, inter-alia, that the memorandum of 1959 did
not apply any new principles retrospectively. That was primarily a case on the
validity of the rotational system which was alleged to be struck by the
principles of Articles 14 and 16 (1) of the Constitution. Even if the opposite
parties had missed the significance of an observation in that case that the
principles introduced by 1959 memorandum were not to be applied retrospectively
on the terms of that memorandum itself, yet, Govt. servants who could benefit
by this observation probably they have an Organisation to keep a watch over and
protect their interest ought to have also realised the meaning of this
pronouncement long ago. They could have raised the question in a Writ Petition
in a representative capacity so that general order could have been obtained to
govern all (1)  2 S.C. R.824.
975 similar cases. They need not have waited
for the pronouncement of the law by this Court on 4-1-1972 in Ravi Varma's case
(supra). But, whatever may be the consequences to parties affected by
slumbering over their rights, we think that the Central Excise Department am be
presumed to know the law as declared by this Court in Mervyn Coutindo's case
(supra) in 1966. We find its lethargy in waiting until 1972 to make any attempt
to rectify its errors far from commendable.
The memorandum of 1972 contains a set of
instructions intended for carrying out the requirements of the law declared by
this Court in Ravi Varma's case (supra) on 4-11972 without disturbing such
equitable rights as may have accrued to other Govt. servants by lapse of time.
It is not suggested that this attempt was not a bonafide one. It had resulted
in the conferment of such benefits from the declaration of the law in Ravi
Varma's case, as could, in the estimation of the Central Excise Department, be
reasonably reaped by the petitioners. It could only be understood in the
context of the past executive instructions and declarations of law by this
It will be noticed that Ravi Varma's case
(supra) was decided on an appeal from a decision of the High Court on Writ
Petition under Article 226 of the Constitution. It was enough, for the purposes
of a, petition under Article 226, to show a violation of an applicable rule of
seniority laid down in the relevant executive instructions. But, we have writ
petitions under Article 32 of the Constitution before as for which violations
of fundamental rights under Article 16 (1) of the Constitution have to be
Learned Counsel for the petitioner relied
upon Union of India v. Vasant Jayaram Karnik & Ors.(1) to contend that
violation of a rule relating to seniority in & cadre or grade would be
enough to base a claim for "relief on the footing that he is denied
equality of opportunity". In that case, the selection for promotion was on
the basis of "seniority cum-merit". and it had been found that
different standards had been applied in determining seniority of the
petitioners before the High Court to compared with the seniority of opposite
parties before that Court' Hence, the High Court had quashed the seniority list
and it.% decision was upheld by this Court. Application of different and
unjustifiable standards for determining seniority did, therefore, establish a
clear violation of Article 16 of the Constitution in that case. In the before
us, this had not been demonstrated, although it may perhaps have been possible
to show this if all the facts could have been so out clearly with instances in
which and the manner in which each petitioner had been wrongly superseded by
contravening a principle lowing from or implied by Article 16 (1) of the
Constitution. However as we have already found that the petitions are also
liable to be dismissed on the ground that the equitable rights of a number of
other Government servants had come into existence by the laches and
acquiescences of the petitioners, we need not proceed further to consider the question
whether a violation of the fundamental right (1) A.I.R. 1970 S.C. 2092.
976 of the Petitioners by the Central Excise
Department was really and duly established here. On this view of the cases
before us, it is also not necessary for us to decide the question whether there
is any defect in the petitions before us due to a misjoinder either of causes
of action or of petitioners.
It may be mentioned here that an attempt was
made by Amrit Lal Berry to account for delay In filing his petition. He said
that he had made two departmental representations, one dated 6-3-1965 and
another dated 13-8-1971, of which he filed copies, to which no replies had been
received so far by him. It was denied by the Excise Department that he ever
sent the first representation. It is evident that he had waited for a
considerable period before making his representation in 1965 even if we were to
assume that he did make such a representation then. Furthermore, the copy of
the alleged representation of 1965 shows that it was directed only against the
imposition of test by examination before confirmation. We do not think, that,
merely by filing repeated or delayed representations, a petitioner can get over
the obstacles which delay in approaching the Court creates because equitable rights
of others have arisen. We may, however, observe that when a citizen aggrieved
by the action of a Government Department has approached the Court and obtained
a declaration of law is his favour, others, in like circumstances, should be
able to rely on the sense of responsibility of the Department concerned and to
expect that they will be given the benefit of this declaration without the need
to take their grievances to Court.
In the petition of K. N. Kapur & others,
we do not even find at assertion that any representation was made against any
violation of a petitioner's right. Hence, the rule recognised by this Court is
Kamini Kumar Das Choudhury v.
State of West Bengal & Ors.(1), that a
demand for justice and its refusal must precede the filing of a petition asking
for direction or Writ of Mandamus, would also operate against the petitioners.
It is submitted by the learned Counsel for
the Excise Department that the real grievance of the petitioner is that they
have not been awarded consequential benefits such as promotions and arrears of
salary as a result of an alleged wrong preparation of seniority list in 1961.
The memorandum of 1972 attempts to satisfy the grievance of the petitioners to
the extent that it is reasonably possible, consistently with the equitable
rights of others, that the principle of length of service laid down in the 1949
memorandum should govern the cases of those appointed prior to 1959. We think
that the 1972 memorandum may be fairly interpreted to mean that (a) the 1949
memorandum will apply to all cases covered by it till the 1959 memorandum came
into effect, (b) that those who were, in good faith and in the regular course,
confirmed and/or promoted regularly though by an honest misapplication of the
1959 memorandum will not be disturbed even if they be junior to the claimants
under the 1949 memorandum : (c) that in future, for vacancies and quotas, as
earlier explained, those with longer service, as contemplated by the (1) A. T.
R. 1972 S.C. 2060@ 2065.
977 1949 memorandum. will be considered for
confirmation and promotion and (d) that, in the subsequent career of those who
stand to benefit by the 1959 memorandum, that factor will be reckoned in their
favour when further opportunities for promotion arise, so that they may not suffer
for ever from the misconstruction of the memorandum made by the Excise
Department. It will be for the Department to consider what consequential
benefits can be given as a result of reconsideration of a case.
Lastly, it was urged that the fixation of 4-1-1972
as the date after which all confirmations aid promotions made would be revised
in order to conform to the seniority determined by length of service of persons
appointed prior to 22-121959 was arbitrary. Reliance was placed upon D. R. Nim
Union of India,(8) where a date fixed for the
application of a particular rule was held to be arbitrary. In reply it was
submitted that 4-1-1972 was the date on which this Court delivered judgment in
Ravi Varma's case (supra) making it finally clear and definite to the Central
Excise Department what the correct interpretation of memorandum of 1959 was,
and, therefore, the date had not been chosen altogether arbitrarily. A perusal
of the memorandum of 1972 shows that the date 4-1-1972 was only chosen for
giving the retrospective effect to whatever may be the actions taken on a wrong
view of the law after this date. In other words, it means that promotions and
confirmations made after 4-1-1972 would, in any case, be reopened. The
provisions of the memorandum, which are not very clear as to what will happen
in decisions taken before 4-1-1972 by the Excise Department, have been now
interpreted by us so that they may be construed in a manner consistent with the
apparent objects of the memorandum. The result seems to be that the seniority
of all unconfirmed persons is to be determined in accordance with the law as
declared by this Court on 4-11972; but, as regards persons who had already been
bona fide confirmed or promoted before 4-1-1972, no undoing of what had already
be" done in their favour would be possible.
Nevertheless, it was laid down there that the
cases of those who had failed to be either considered for confirmation or
promotion merely because of the failure to apply the length of service rule for
determining seniority, would not suffer but will be reconsidered now subject to
existence of vacancies in the grade for confirmation, or in the promotion
We are not quashing any part of the
memorandum of 1972 as we do not so interpret it as to make it possible for the
Central Excise Department to violate Article 16(1) of the Constitution by
resorting to it. We take its meaning to be and, so construed, it will be
Constitutional-that the declaration of law by this Court on 4-1-1972 will
affect all cases in which the Principles of 1949 memorandum can still be
applied despite any confirmations wrongly made between 1959 and 4-1-1972. It
appears to us that in cases of promotions wrongly made between 1959 and
4-1-1972, the position, despite the clarification attempted by us, is still
left rather vague. As no (1) (1967) 2 S.C.R. 325.
978 question of the seniority of a person
actually promoted before 4-1-1972 is against that of a before us, on the
footing that both belong to the person promoted after 4-11972 is class of
promotees whose seniority. inter se, should be determined by the total lengths
of their we refrain from pronouncing upon such questions. We hope that just and
reasonable rules for determining such questions of seniority, on a principle of
length of service combined with merit, will be evolved by the Excise Department
itself to prevent complaints of injustice and future litigation. It is for the
Central Excise Department itself to make appropriate rules. It is only when
such rules violate or have been so used as to violate the fundamental rights of
any group of persons employed by the State that this Court can interfere, In
such we see no objection to the filing of writ petitions in representative
capacities, by aggrieved persons after taking. necessary steps under Order 1,
Civil Procedure Code, the application of
which to proceedings under either Article 226 or 32 of the Constitution does
not appear to us to be barred by any provision.
It is difficult to understand why statutory
provisions, on the lines on which provisions have been made for superior
services and rules under such provisions are not made to ensure that nothing
except just considerations. such as merit tested by performance and integrity
revealed by the service records or other reasonable tests as well as length of
service, can count in making confirmations or promotions.
The, petitioner,, have, however, failed to
establish that just and reasonable considerations did not prevail in any
particular instance brought to our notice.
Consequently, we dismiss these Writ
Petitions, but, in the circumstances of these cases, parties will bear their