R.S. Makashi & Ors Vs. I.M. Menon
& Ors [1981] INSC 199 (8 December 1981)
ERADI, V. BALAKRISHNA (J) ERADI, V.
BALAKRISHNA (J) KOSHAL, A.D. MISRA, R.B. (J)
CITATION: 1982 AIR 101 1982 SCR (2) 69 1982
SCC (1) 379 1981 SCALE (3)1837
CITATOR INFO :
R 1982 SC1064 (24,33) R 1986 SC2086 (7) R
1987 SC2291 (21) RF 1988 SC 268 (30) RF 1988 SC 654 (16) RF 1991 SC1872 (15)
ACT:
Constitution of India Article
309-Proviso-Power of government to frame rules of inter se seniority of persons
borrowed from different sources-Explained.
Procedure-Delay of eight years in filing writ
petition- Petitioner seeking redress for alleged infringement of fundamental
right-High Court, if could not dismiss on grounds of laches.
HEADNOTE:
To man the various posts in the newly established
Bombay Rationing Organisation (BRO) the State Government sanctioned a skelton
staff. In addition to the sanctioned staff, the existing staff of the erstwhile
adhoc organisation of Controller of Foodgrains (CFD) were taken into the BRO.
Since it was considered necessary to have experienced staff for manning higher
posts in the new Organisation the Government borrowed the services of
experienced hands from other departments. Since, as work expanded, it was found
that the number of persons brought on deputation to fill up all the new posts
in the BRO were not enough, some persons were directly recruited into the BRO.
In 1968 the State Government issued, under
the proviso to Article 309 of the Constitution, the Bombay Rationing
Organisation (Fixation of Seniority) Rules, 1968 laying down the principles to
be applied for the fixation of seniority of persons working in the BRO. The
rules were given retrospective effect from the date of the Government
resolution sanctioning the skelton staff for introduction of statutory
rationing.
Rule 4(a) provided that seniority of a
released government servant and a merged government servant in the cadre of
senior clerk etc., as also a person who was initially appointed as a clerk etc.
in the Bombay Rationing Organisation and subsequently promoted to the said
cadre shall be determined with reference to the dates which shall be fixed
after deducting two years from the length of continuous service.
Clause (c) of this rule provided that
seniority of government servants in the cadre of senior clerks fixed on the
basis of rules (a) and (b) of this rule shall be merged and refixed with
reference to the dates from which their seniority is determined according to
the principles in rules 4(a) and (b).
70 The proviso to rule 7 provided that where
there is a clash of principles contained in the government resolution with the
seniority inter se in the former department shall prevail.
Based on the principles laid down in 1968
Rules the Controller of Rationing had drawn up a gradation list of Rationing
Inspectors, Senior Clerks and Deputy Accountants working in the BRO as on April
1, 1968. The list was exhibited on the notice board of the head office of BRO,
regional offices and Rationing Offices and was communicated to the individual members
of the staff.
A final gradation list was thereafter drawn
up as on April 1, 1968. Sometime later on April 9, 1973 another provisional
gradation list as on April 1, 1972 was drawn up and published as before.
Since at that time there were many employees
who were temporarily recruited pending allotment of candidates selected by the
State Public Service Commission rules were relaxed and their appointments were
regularised subject to the condition that seniority of such non P.S.C.
candidates on whom the benefit of continuance of service was conferred was to
be fixed only with reference to the date of issue of the resolution, as a
result of which candidates selected by the Public Service Commission already
working in the various departments were treated as seniors in relation to the
non P.S.C. persons covered by the resolution.
A provisional gradation list as on April 1,
1974 was published following the seniority principles laid down by the BRO in
1968 and those laid down in the resolution concerning non P.S.C. candidates.
In January 1976, respondents 1 to 22 who were
directly recruited in the former CFD but subsequently absorbed in the BRO
challenged in a writ petition the validity of the two gradation lists
contending that in preparing these lists the normal rule of fixation of
seniority according to the date of appointment to the post was given a go-by
and that while fixing seniority unequals had been treated as equals in that the
service rendered in the clerical cadre had been reckoned and equated with the
service rendered in the Rationing Inspectors' cadre.
The respondents raised a preliminary
objection that the petition was barred by laches because though the gradation
list had been circulated to all concerned in 1968 itself no objection had been
raised and no effective steps had been taken by the petitioners to challenge
the validity of the principles laid down in the government resolution and that
after a lapse of 8 years it was not open to them to raise the challenge against
the gradation list and try to unsettle a settled principle; (2) in view of the
fact that persons from various departments had been recruited, it was necessary
to evolve some fair and reasonable principles for the fixation of inter se
seniority of the integrated personnel in the different categories.
A single Judge of the High Court struck down
clauses (a) and (c) of rule 4 and the proviso to rule 7 of the government Order
dated March 22, 1968 as 71 being violative of Articles 14 and 16 of the
Constitution and directed the State Government to prepare fresh lists of
seniority without taking into consideration the provisions struck down by him.
On the question of laches the Single Judge held that the law did not lay down
any obligation on the Court to refuse to grant relief merely because there was
a lapse of time but that since the cause of action arose and the challenge was
based on infringement of Articles 14 and 16 of the Constitution, the Court
could not shut out the petitioners on the ground of laches because such a
course would amount to condoning the invalid rules.
The Division Bench dismissed in limine the
appeal preferred by the respondents in the writ petition.
Allowing the appeal,
HELD: The High Court was wrong in holding
that clauses (a) and (c) of rule 4 and the proviso to rule 7 of the government
resolution dated March 22, 1968 are violative of Articles 14 and 16 of the
constitution and in directing the State Government to prepare a fresh seniority
list without taking into consideration these provisions. [90 B-C] Assuming that
the principles for determining the inter se seniority of persons appointed in
the different categories of the newly constituted BRO laid down in the
government resolution of March 22, 1968 were not known to the members of the
staff immediately after the resolution was passed by the State Government a
Provisional Gradation List of Rationing Inspectors etc. as on 1st April, 1968
was drawn up in implementation of these principles on 28th May 1971 and the
said list was circulated to all the personnel working in the establishment of
the BRO. Neither after the publication of the provisional gradation list on May
28, 1971 which was followed up by the publication and circularization of a
final gradation list on November 23, 1972, nor even after the gradation list
was revised and published on April 9, 1973, did the writ petitioners file any
objections against their ranking in those gradation lists, within the time
allowed. [90 F-H] Even in the belated representations filed by some of the writ
petitioners no objection was raised against the principles for determination of
seniority enunciated in the government resolution of 1968, nor was there any
protest whatsoever against the provision made in the resolution for fixation of
seniority of released government servants. Nor again when their representations
were rejected by the government did the petitioners challenge the
constitutionality of the rules contained in the impugned resolution. [92 D-E]
The government resolution in regard to the position of non P.S.C. candidates
vis a vis the P.S.C. candidates did not in any way affect the inter se
seniority between the petitioners and the released government servants drafted
to the BRO because that resolution was a general order applicable to all the
non P.S.C. personnel functioning on a temporary or ad hoc basis in the various
departments of the State Government. [93 E-F] 72 There is no substance in the
contention of the petitioners that they stood on a separate and superior
footing for the purpose of seniority in the new organisation. The staff in the
new organisation was drawn from four different sources and this inevitably
necessitated the formulation of reasonable principles for the determination of
inter se seniority. At the time of formation of the BRO the petitioners were
not holding any substantive or regular appointments in the CFD which itself was
a mere temporary department. In contrast the deputationists (released
government servants) were regular hands recruited by the Public Service
Commission and they were holding posts on a substantive basis in other
departments. The principles of equation evolved for determining the inter se
seniority could not be regarded as arbitrary or unreasonable viewed in the
context that the CFD candidates were merely temporary hands in a temporary
department. [101 E-H] It is not an invariable rule that seniority should be
determined only on the basis of the respective dates of appointment to the post
and that any departure from it would be unreasonable and illegal. It is open to
the rule making authority to take a note of the relevant circumstances
obtaining in relation to each department and determine objectively the rules
that should govern the inter se seniority and ranking. Such rules should be
reasonable, just and equitable. [102 F-G] In the instant case the action of the
Government in determining the inter se seniority of clerical personnel under
rule 4(a) cannot be said to be in any way discriminatory or illegal.
S.G. Jaisinghani v. Union of India &
Ors., [1967] 2 S.C.R. 703; Bishan Sarup Gupta v. Union of India & Ors.,
[1975] 1 S.C.R. 104 at p. 114, referred to.
When personnel drawn from different sources
were being absorbed and integrated in a new department it was primarily for the
government to decide as a matter of policy how the equation of posts should be
effected, Courts would not interfere with such a decision unless it is shown to
be unreasonable or unfair. [104 E] All that the proviso to rule 7 does is to
state that in respect to persons drafted into the CFD from one and the same
government department on deputation basis their inter se seniority in the
former department should not be disturbed and to that extent a deviation should
be made from the principles laid down in the government resolution of April 1,
1963. This proviso contains a just and wholesome principle commonly applied in
such situations and it cannot be said to be arbitrary or unreasonable. The High
Court was in error in striking down the rule as being violative of Articles 14
and 16 of the Constitution.
[105 E-H] The object of clause (b) of rule 7
is limited to the preservation and maintenance of the pre-existing inter se
seniority as between CFD personnel even after their absorption in the BRO and
this provision does not in any way hamper the operation of the principle laid
down in rule 4 for the fixation of seniority of all the personnel including the
merged government servants in the respective categories of BRO. [106 D-E] 73
The view of the single Judge that a petition under Article 226 seeking redress
for alleged infringement of fundamental rights could not be dismissed on the
ground of laches under any circumstances is inconsistent with the
pronouncements of this Court on the subject. The High Court was wrong in
over-ruling the preliminary objection based on delay and laches. [94 B-C]
Tilokchand Motichand and Ors. v. H.B. Munshi and Anr. [1969] 2 S.C.R. 824 at
pp. 805, 836, 853-855, Rabindra Nath Bose and Ors. v. Union of India and Ors.
[1970] 2 S.C.R. 697 at pp. 711-712; Malcom Lawrence Cecil D'Souza v. Union of
India and Ors. [1976] 1 S.C.C. 599 at p. 602; S.S. Moghe and Ors. v. Union of
India and Ors. [1981] 3 S.C.C. 271 at p.
292, referred to.
The petitioners had ample opportunities to
file their objections to the gradation list but they failed to avail those
opportunities. They had not furnished any valid explanation whatsoever for the
inordinate delay on their part in approaching the Court with the challenge
against the principles of seniority laid down in the resolution of 1968.
The single Judge was in error in thinking
that the passing of the government resolution of 1974 furnished a fresh cause
of action for the petitioners for agitating their contentions regarding the
validity of the government resolution of 1968. [99 B-F]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1003 of 1980.
Appeal by special leave from the judgment and
order dated the 3rd March, 1980 of the Bombay High Court in Appeal No. 106 of
1980.
V.M. Tarkunde, P.H. Parekh and Miss Vineeta
Caprihan for the Appellants.
K.K. Singhvi, Brij Bhushan, N.P. Mahindra and
A.K.
Gupta, for Respondents Nos. 1, 2, and 3.
V.B. Desai, R.H. Dhebar and R.N. Poddar for
Respondent- State.
The Judgment of the Court was delivered by
BALAKRISHNA ERADI, J. The second world war left in its wake conditions of
scarcity of foodgrains and other essential commodities in different parts of
the country. To tide over that situation and with intent to ensure a fair and
equitable distribution of the available supply of foodgrains etc., schemes of rationing
of foodgrains were periodically introduced in the different States in the
country.
74 In the State of Bombay, an informal
(non-statutory) scheme of rationing was introduced in November, 1957 and for
administering the said scheme, an ad hoc Organisation was set up under the
Controller of Foodgrains Distribution.
Since this Organisation (hereinafter referred
to as CFD) was intended to be only a temporary and short-term set up, no
recruitment rules were framed for appointment to the various categories of
posts created therein. The CFD was manned principally by (1) personnel who had
been working in the temporary Civil Supplies Department created during the
second world war period and who were attending to certain residual duties
concerned with the winding up of that department, (2) persons taken on
deputation from other Government departments (3) retrenched former Civil Supply
Department personnel, and (4) persons directly recruited to the CFD by the
Controller of Foodgrains Distribution on temporary basis through the Employment
Exchange. Since no rules had been framed laying down the qualifications or
method of recruitment to the various posts, the guiding factor which seems to
have weighed with the authorities in effecting appointments in the CFD was the
suitability of the person concerned to carry out the duties attached to a
particular post irrespective of qualifications, age, etc.
Admittedly, amongst the persons appointed to
the CFD, there were several non-matriculates who were ineligible under the prevailing
rules applicable to other Government Departments for regular appointment into
the Government service in the clerical category and also quite a few persons
who were over-aged for being entertained in the Government service as on the
dates of their ad hoc appointments into the CFD.
The principles to be observed for fixing the
seniority of the personnel appointed to the CFD were laid down by the State
Government by a Resolution dated April 1, 1963. Under the said Resolution, the
seniority of personnel in each category was to be determined with reference to
the date of first appointment in the particular cadre in which they were
initially appointed in the CFD.
In July 1965, the Government of India issued
instructions to all the State Governments advising them to start statutory
rationing schemes in metropolitan areas and big towns. With a view to implement
those instructions of the Central Government, the State Government of
Maharashtra sanctioned on October 21, 1965 a skeleton staff for working out details
and carrying out other preliminary work for the introduction of a scheme of
statutory rationing in Greater Bombay.
75 Subsequently, by a Resolution dated
February 11, 1966, the Government of Maharashtra announced its decision to
introduce a statutory rationing scheme in Bombay and the Industrial Complex
around it including some areas of Thana District and to set up an organisation
under the Controller of Rationing, Bombay, for efficiently administering the
said statutory scheme. The strength and patten of the staff for the Bombay
Rationing Organisation (for short, the BRO) which was newly created under the
said Resolution was to be as shown in Annexure 'A' appended to the Resolution.
The skeleton staff which had been already sanctioned for carrying out the
preliminary work as per the prior Government Resolution dated October 21, 1965
was to be treated as belonging to the BRO. The existing staff of the CFD
consisting of 884 posts as shown in Annexure 'B' to the aforesaid Resolution
was to be merged into the new BRO with effect from March 1, 1966, excepting 9
posts of part-time Mehtars, which were to be abolished with effect from the
said date. In addition, 2818 posts in 23 different categories were also created
in the BRO as per the particulars shown in Annexure 'C' to the aforesaid
Resolution. Out of these, 1220 newly created posts were in the category of
Rationing Inspectors and 165 posts were of Senior Clerks.
Since it was considered necessary to have
experienced staff for manning the higher posts in the new Organisation, it was
decided to obtain the services of experienced hands from other departments on
deputation. Accordingly, the Chief Secretary to the Government of Maharashtra
addressed a letter dated February 22, 1968 to all, Heads of Departments stating
that huge staff was required for manning the posts in the newly created BRO,
that for the higher posts of Assistant Rationing Officers/Inspecting
Officers/Head Clerks and Rationing Officers/Senior Clerks, it was absolutely
necessary to draw upon senior and experienced persons already working in other
Government offices in Greater Bombay and hence the Government had decided that
each department should immediately on receipt of the letter release the
requisite number of persons under intimation to the Controller of Rationing,
Bombay and instruct the persons concerned to report for duty to him.
It was further mentioned in the letter that
for the posts of Assistant Rationing Officers, persons who had put in at least
two years' service in a scale comparable to the scale of Rs. 200-10-300 would
be considered and that for the posts of Rationing Inspectors/Senior Clerks,
Clerks who had put in at least two years' service would be 76 considered. In
compliance with the directions contained in the said letter, a large number of
personnel from different departments of the State Government of Maharashtra in
the Greater Bombay area were sent over to the BRO on deputation and they were
appointed to posts in different categories in the new Organisation (B.R.O.) Apparently
for the reason that the number of persons so obtained on deputation was not
adequate to fill up all the new posts in the BRO, some persons were also
directly recruited into the said Organisation subsequent to March 1, 1966.
As an essential preliminary step for the
integration of the former CFD personnel with the staff appointed in the BRO
from other sources, the Controller of Rationing, Bombay published on 29.8.1966
a provisional Gradation List of the CFD personnel as on March 1, 1966.
Subsequently, on March 22, 1968, the Government of Maharashtra issued the
"Bombay Rationing Organisation (Fixation of Seniority) Rules, 1968",
laying down the principles to be applied for the fixation of seniority of the
persons working in the BRO. These rules were issued under the proviso to
Article 309 of the Constitution and they were given retrospective effect from
October 21, 1965 (the date of the Government Resolution sanctioning the
skeleton staff for carrying out the preliminary work for introduction of the scheme
of statutory rationing). The personnel released from other departments of the
State Government for work in the BRO, including retrenched or replaced
Government servants who had not suffered any break in service before joining
the BRO were designated under these Rules as "Released Government
Servants". Rule 4 which lays down the principles for fixation of seniority
of persons in the cadre of Senior Clerks/Rationing Inspectors/Deputy
Accountants is in the following terms:
"Senior Clerks/Rationing Inspectors/Deputy
Accountants.
(a) Seniority of a released Government
Servant and a Merged Government Servant in the cadre of senior clerk, Rationing
Inspector and Deputy Accountants, as also a person who was initially appointed
as a clerk, or Typist or Clerk-cum-Typist in the Bombay Rationing Organisation
and subsequently promoted in the said cadre shall be determined with reference
to dates which shall be fixed after deducting two years from the length of
continuous service, whether officiat- 77 ing or permanent rendered by him in
the cadre of clerks, typists, and clerk-cum-typist.
Illustration:- Suppose there are three
persons in the cadre of Senior Clerks/Rationing Inspectors and Deputy
Accountants, 'A' a released Government servant was holding the post of clerk
continuously from 1st October 1960 prior to his release, 'B' a merged
Government Servant was holding the post of typist continuously from 1st May,
1958. 'C' was appointed as a direct recruit to the post of clerk in the Bombay
Rationing Organisation on 1st May, 1966 and was subsequently promoted as Senior
Clerk on 22nd May, 1968. The seniority amongst them will be fixed as under:-
___________________________________________________________ Seniority Name Date
of commence- Deemed date of rank. ment of continuous appointment for service as
Clerk. fixation of seniority.
___________________________________________________________
1. 2. 3. 4.
___________________________________________________________
1. B 1.5.1958 1.5.1960
2. A 1.10.1960 1.10.1962
3. C 1.5.1966 1.5.1968
___________________________________________________________ Provided that in
the case of merged Government servant who was recruited to the post of Supply
Inspector or Senior Clerk, by nomination, he shall take rank above a clerk in
the former Foodgrains Distribution Scheme who was promoted to the cadre of
Supply Inspector or Senior Clerk, in the former Foodgrains Distribution Scheme
immediately, after him and if this be not the position, above the first person
in the cadre of clerks belonging to that organisation who is posted in the
cadre of Senior Clerks, Rationing Inspectors and Deputy Accountants on and
after 1st March 1966.
78 Illustration:- Suppose there are four
persons in the cadre of Senior Clerks, Rationing Inspectors and Deputy Accountants.
All of them were in the Bombay Foodgrains Distribution Scheme. 'A' was a clerk
in the Scheme and he was promoted to the post of Supply Inspector with effect
from 1st May 1960 and since then was continuously officiating in the post. 'B'
and 'C' were recruited as Supply Inspectors by nomination and were officiating
continuously in that post from 15th April, 1960 and 15th April, 1965. None of
the Clerks in that scheme was promoted after 'C' till the merger of the staff
in the Bombay Rationing Organisation. 'D' was a Clerk and he was promoted as
Senior Clerk with effect from 15th April 1966 i.e. after merger of the staff in
the Bombay Rationing Organisation. Their seniority amongst them will be as
under:- _____________________________________________ Seniority rank Name
_____________________________________________ 1 B 2 A 3 C 4 D
_________________________________________________ (b) Seniority of a Government
servant appointed in the Bombay Rationing Organisation by direct requirement to
the cadre of Senior Clerks, Rationing Inspectors and Deputy Accountants shall
be fixed with reference to the dates of appointments to the posts in the said
cadres:
Illustration:
Suppose there are three persons in the cadre
of Senior Clerks, Rationing Inspectors and Deputy Accountants who were
recruited to the cadre by nomination. 'A' was recruited as Rationing Inspector
from 24th February 1966. 'B' was recruited as Senior Clerk from 15th March
1966. 'C' was recruited as Deputy Accountant, from 28th 79 February, 1966. The
seniority amongst them will be fixed as under:-
___________________________________________________________ Seniority Date of
commencement rank. Name of continuous service.
___________________________________________________________
1. 2. 3.
___________________________________________________________
1. A 24.2.1966
2. C 28.2.1966
3. B 15.3.1966
___________________________________________________________ (c) Seniority of
Government servant in the cadre of Senior Clerks, Rationing Inspectors and Deputy
Accountants fixed on the basis of the rules in (a) and (b) above, shall be
merged and refixed with reference to the dates from which their seniority is
determined according to the principles in the rules 4 (a) and 4 (b) above.
Illustration:- Suppose there are 7 persons in
the cadre of Senior Clerks, Rationing Inspectors, Deputy Accountants. 'A' and
'B' were Supply Inspectors directly recruited in the Bombay Foodgrains
Distribution Scheme and were continuously officiating in those posts from 4th
May, 1963 and 1st May 1963 respectively. 'C' was a Clerk in the former Bombay
Foodgrains Distribution Scheme from 1st September 1960. He was promoted as
Supply Inspector on 5th May, 1963. 'D' was a Rationing Inspector directly
recruited to it from 2nd February, 1966. 'E' was a released Government servant
holding the post of Clerk in the former office from 1st August 1960. He was
taken up as Senior Clerk from 2nd August, 1967, in the Bombay Rationing
Organisation. 'F' was a released Government servant holding the post of a clerk
in his former office from 1st February, 1964. He was taken up as Rationing
Inspector on 1st August 1967. 'G' was a released Government servant holding the
post of a clerk in his former 80 office from 1st December 1964. He was taken up
as a clerk in Bombay Rationing Organisation subsequently he was promoted as
Rationing Inspector from 1st April, 1967. The seniority amongst them will be as
under t- ___________________________________________________________ Senio-
Name Mode Actual date DEEMED rity ------------------ rank. As Clerk As Sr.Cl.
/R.I./ Dy.Acctt.
___________________________________________________________
1. 2. 3. 4.(a) 4.(b) 5.
___________________________________________________________
1. E Promoted clerk 1.8.60 2.8.67 1.3.62 (released)
2. B Direct S.I. - 1.5.63 31.8.62
3. A -do- - 4.5.63 31.8.62 4. C Promoted Ex.
CFD Clerk 1.9.60 5.5.63 1.9.62
5. F Promoted Clerk (released) 1.2.64 1.8.67
1.2.66
6. D Direct Ration- ing Inspector. - 2.2.66
2.2.66
7. G Released Clerk absorbed in Bombay
Ration- ing Area Or- ganisation as Clerk and sub- sequently pro- moted as
Rationing Inspector." 1.12.64 1.4.67 1.12.66
___________________________________________________________ However, it was
further provided under Rule 7 that "notwithstanding anything contained in
the foregoing Rules:
81 (a) In case of Government servants
released from one and the same office to join the Bombay Rationing organisation
the seniority inter se in their former office shall not be disturbed;
(b) in case of the merged Government
servants, they shall be governed by the principles contained in the Government
Resolution, Agriculture and Co- operation Department No. EST-1060/40002/SlV,
dated the 1st April 1963; and (c) in case of- (i) those who were recruited
directly in the former Bombay Foodgrains Distribution Scheme shall be governed
by the principles contained in the Government Resolution No. Agriculture and
Cooperation Department No. EST l 1060/40002/ SIV dated the 1st April, 1963;
(ii) those who were drawn in the Bombay
Foodgrains Distribution Scheme from one and the same Government
office/Department shall take their rank according to seniority inter se in the
office/department from which they were drawn.
Provided further where there is a clash of
principles contained in the Government Resolution Agriculture and Cooperation
Department No. EST 1060/40002/SIV, dated the 1st April, 1963 with the seniority
inter se in the former Department the seniority inter se in the former
Department shall prevail.
Illustration:- 'A' who started his career as
Assistant in Revenue and Forests Department from 1st May 1962 was drawn in
Bombay Foodgrains Distribution Scheme on 18th October, 1964 and was taken up as
Inspecting officer, 'B' an Assistant in Revenue and Forests Department working
in that cadre continuously from 1st May, 1961 was released to join Bombay
Rationing organisation on 22nd August, 1966 as Inspecting officer. 'C' who
started his career as Assistant in General Administration Department from 1st
82 April 1960 was drawn in Bombay Foodgrains Distribution Scheme on 18th May,
1965 as Inspecting officer. 'D' as Assistant in General Administration
Department working in that cadre continuously from 1st May, 1960 was released
to join Bombay Rationing organisation on 1st July 1967 as Inspecting officer.
The seniority of these persons will be fixed as under:-
____________________________________________________________ Senio- Name
Department Date of Date of Date of rity recruit- joining in joining in rank
ment as Bombay Bombay Asstt. Food- Rationing in the grains Organi- present
Distri- sation Deptt. bution Scheme.
___________________________________________________________
1. 2. 3. 4. 5. 6.
____________________________________________________________
1. C. General Admn.
Department. 1.4.60 18.5.65 1.3.1966 2. D.
General Admn.
Department. 1.5.60 - 1.7.67
3. B. Revenue & Forests Department 1.5.61
- 22.8.1966
4. A. Revenue & Forests Department 1.5.62
18.10.64 1.3.1966 (Date of merger) ____________________________________________________________
By State Government's Resolution dated July 25, 1968, various posts that
existed in the former CFD were equated with posts in the BRO in the manner
indicated therein. Items 9 to 11 in the Table appended to the said Resolution
dealt with the posts of Deputy Chief Supply Inspectors, Supply Inspectors and
Senior 83 Clerks, respectively in the CFD. All those Three categories of posts
were equated with the posts of Rationing Inspectors/Senior Clerks in the BRO on
Rs. 160-10-220-EB-10- 270 despite the fact that in the CFD the pay scale of the
post of Deputy Chief Inspector was a higher post than that of Supply Inspectors
and Senior Clerks and it carried a higher pay scale.
By a Resolution dated July 29, 1968, the
State Government of Maharashtra promulgated the Recruitment Rules for
non-gazetted posts in the establishment of the BRO specifying also the method
of appointment to the various posts in the said organisation. Under these
Rules, appointments to the category of Senior Clerks/Rationing Inspectors in
the BRO were to be made either by promotion from among Clerks, Clerks-typists,
Typists etc., who had worked as such for not less than two years, or by
transfer of General Duty Clerks from the Secretariat Departments and the
offices of Heads of Departments with not less than two years of service in the
cadre. Obviously, the first of the two alternative methods aforementioned would
get attracted only when persons already working in the BRO as Clerks were to be
appointed as Senior Clerks/Rationing Inspectors. The other alternative provided
was to fill up the vacancy by transfer of Clerks working in the Secretariat
Departments or in the offices of the Heads of Departments who possessed not
less than two years of service.
On May 28, 1971, a Gradation List of
Rationing Inspectors, Senior Clerks and Deputy Accountants working in the BRO
as on April 1, 1968 was published by the Controller of Rationing. It was
expressly recited therein that the said List had been drawn up in accordance
with the seniority principles enunciated in the Government Resolution dated
March 22, 1968. It was also stated that while preparing the said list, the
inter se seniority of the ex-CFD personnel had been kept in tact except in the
case of those who had been working in the CFD on deputation from other
Departments and offices in respect of whom the seniority had been fixed
according to their position inter se in the respective former Departments and
offices from which they had been drawn on deputation A specific direction was
contained in paragraph 3 of the order that copies of the said order should be
exhibited on the Notice Boards in the Head office of the BRO, all the Regional
offices as well as in the Rationing offices, and the signatures of all the
employees working in the respective offices should be taken in a separate copy
84 of the order which should be kept on the record of the respective offices.
It was further ordered that a report to the effect that the Gradation List had
been brought to the notice of all the persons concerned should be forwarded to
the Assistant Controller of Rationing, (EST), Head office in his personal name
on or before June 10, 1971.
Subsequently, a final Gradation List as on
April ], 1968 was also published with a similar direction for bringing it to
the notice of all the persons borne on the establishment of the BRO. Still
later, on April 9, l 973, another provisional Gradation List of Rationing
Inspectors, Senior Clerks and Deputy Accountants as on April 1, 1972 was
published with a like direction that it should be brought to the notice of all
the persons borne on their establishment.
By Resolution dated March 1, 1974, the
Government of Maharashtra took note of the fact that during the course of the n
previous few years a number of candidates who had not been selected by the
Public Service Commission had come to be recruited temporarily to the posts of
Clerks, Typists, Stenographers, Assistants, etc. pending allotment of
candidates selected by the Public Service Commission, and it was directed that
since many of such temporary employees had put in several years of service,
they may be retained in Government service without being replaced by candidates
selected by the Public Service Commission, provided they fulfilled the
following two conditions:
"(1) The non-P.S.C. persons concerned
should have the minimum educational qualifications prescribed for the posts to
which they were appointed.
(2) They were within the age-limits
prescribed for appointment to the respective posts held by them at the time of
their initial appointment to such posts." It was also specified in the
Resolution that the benefit of such retention in service would be applicable
only to the non-P.S.C. persons, who were recruited in various Government
offices prior to January 1, 1971 and were in service on the date of issue of
the said order. Further, the Resolution contained a clear stipulation that the
seniority of such non-P.S.C. persons on whom the benefit of continuance of
service was thereby conferred was to be fixed only with reference to the date
of issuance of the said Resolution, with the 85 consequence that P. S. C.
selected candidates who were already A working in the various Departments or
offices prior to the said date were all to be treated as seniors in relation to
the non-P.S.C. persons covered by the said Resolution.
On November 18, 1975, a provisional Gradation
List of Rationing Inspectors, Senior Clerks and Deputy Accountants of the BRO
as on April 1, 1974 was published on a combined application of the seniority
principles laid down by the BRO in the Rules dated March 22, 1968 and those
laid down in the Resolution dated March 1, 1974 concerning the non P.S.C.
candidates who were granted the benefit of
retention in service under the said Resolution. A similar Gradation List of
Assistant Rationing Officers/Junior Accountants of the BRO as on April 1, 1974
was also published by the Controller of Rationing on November 27, 1975.
On January 31, 1976, respondents Nos. I to 22
herein who were directly recruited in the former CFD as Supply Inspectors and
had been subsequently absorbed in the BRO in the category of Rationing
Inspectors/Senior Clerks/Deputy Accountants, filed a Writ Petition under
Article 226 of the Constitution in the High Court of Bombay - Misc. Petition No.
166176 - challenging the legality and validity of the aforementioned two
Gradation Lists dated November 18, 1975 and November 21, 1975. The main
contention put forward by them in the writ petition was that the impugned lists
were violative of Articles 14 and 16 of the Constitution, inasmuch as, firstly,
the State Government and the Controller had given a go-by to the normal rule of
fixation of seniority according to the date of appointment to the post, and
secondly, unequals had been treated as equals while fixing the seniority
inasmuch as the period of service rendered by the employees in the clerical
cadre had been reckoned and equated with the service rendered in the Rationing
Inspector's cadre. Another plea taken in the writ petition was that the seniority
of the writ petitioners has been made to depend upon an uncertain factor,
namely, the seniority of persons who get promoted to the cadre of Rationing
Inspectors/Senior Clerks etc., from time to time and this rule which kept the
question of seniority of employees in a state of flux for all time to come was
grossly arbitrary and unreasonable.
Respondents I to 3 in the writ petition were
the State of Maharashtra. The Controller of Rationing and the Under Secretary
to the Government of Maharashtra, Food & Supply Department, 86
respectively. One hundred and sixty-two employees working in the BRO in
different categories of posts were impleaded as respondents Nos. 4 to 165 on
the ground that they were likely to be affected in case the reliefs claimed by
the writ petitioners were granted by the High Court. The respondents raised a
preliminary objection before the High Court the main attack levelled in the
petition being against the validity of the Government Resolution dated March
22, 1968, the writ petition filed after the lapse of more than seven years
since the passing of the impugned Resolution was liable to be dismissed on the
ground of delay and laches. It was pointed out that on the basis of the
impugned Resolution, the provisional Gradation List had been published on May
28, 1971 showing the seniority of personnel in the BRO as on April l, 1968 and
it had been specifically stated in the said gradation list that it had been
drawn up on the basis of the principles laid down in the impugned Government
Resolution dated March 22, 1968. The said list had been circulated to all the
offices attached to the BRO and signatures of all the personnel working in the
different offices had been taken in token of their having seen the list. The
respondents stressed before the High Court the fact that even though objections
had been invited against the provisional Gradation List, none of the
petitioners had filed any objections. Subsequently, a final Gradation List was
published on November 23, 1972, which was also brought to the notice of the
personnel working in the BRO. Reliance was also placed by the respondents on
the fact that the second provisional Gradation List based on the impugned
Resolution of 1968 was published on April 9, 1973 showing the seniority of
personnel working in The BRO as on April 1, 1972 and though writ petitioners 1
to 3 filed certain objections against the said list long after the date fixed
for the receipt of such objections, no contention has been taken therein
objecting to the seniority principles laid down in the Government Resolution of
1968. The objections raised by writ petitioners 1 to 3 were rejected by the
Controller of Rationing as per his communications dated December 6, 1973 and
December 19, 1973. Even thereafter, no steps were taken by the petitioners to
challenge the validity of the principles laid down in the Government
Resolution. It was urged by the respondents before the High Court that in view
of the aforesaid conduct of the petitioners, it was not legally open to them to
raise a challenge against the said Resolution in the writ petition filed after
eight years and thereby upset the seniority position of personnel which had
become settled during the course of the period of eight years and disrupt
rights 87 which have become vested in others by virtue of the various postings
and promotions that have taken place in the Meantime.
On the merits, the respondents contended
before the High Court that the BRO being a newly constituted organisation with
its personnel drawn from different sources, it was perfectly open to the State
Government to lay down the principles to be applied for the determination of
inter se seniority of the members of the staff belonging to the different
categories. Since the new Department was to consist of "merged Government
servants" who were absorbed from the CFD, "released Government
servants" drawn on deputation from other departments and also direct
recruits, it was necessary to evolve some fair and reasonable principle for the
fixation of the inter se seniority of the integrated personnel in the different
categories. The respondents submitted before the High Court that viewed in the
context of the relevant facts and circumstances, the principles laid down in
the impugned Resolution were perfectly reasonable and that the challenge
levelled by the petitioners against the said Resolution and the Gradation Lists
dated November 18, 1975 and November 27, 1975 on the ground of alleged
violation of Articles 14 and 16 of the Constitution was wholly devoid of merit.
The writ petition was heard by a learned
Single Judge of the High Court and by judgment dated September 11, 1979, the
petition was allowed and clauses (a) and (c) of rule 4 and the proviso to rule
7 of the impugned Government Resolution dated March 22, 1968 were struck down
on the ground that they were violative of Articles 14 and 16 of the
Constitution. The Gradation Lists dated November 18, 1975 and November 27, 1975
were also quashed by the learned Judge, and the first respondent-State of
Maharashtra-was directed to prepare a fresh seniority list without taking into
consideration the aforesaid provisions of the impugned Government Resolution
dated March 22, 1968 which had been struck down and to give consequential
benefits to the writ petitioners, including increments, promotions etc.
The preliminary objection on the ground of
laches and delay, raised by the respondents before the High Court, was
over-ruled by the learned Single Judge by stating, firstly, that the law with
respect to laches did not lay down any obligation on the Court to refuse to
grant reliefs merely because there was a lapse of time since the cause of
action arose and since the challenge against the 88 Government Resolution was
based on the contention that the fundamental rights of the petitioners under
Articles 14 and 16 of the Constitution were violated, it was not open to the
court to shut out the petitioners from putting forward their challenge against
the rules on the ground of delay or laches since such course would tantamount
to "condoning the continuance of invalid rules or statutes." The
second reason stated by the learned Judge for overruling the preliminary
objection was that beyond making a vague statement that the seniority list of
November 23, 1972 showing the placement of the officers as on April 1, 1968 had
been since followed and promotions made on that basis. no factual data had been
placed before the High Court by the respondents "to show the extent of
such promotions and the manner in which the promotees would be affected if the
relief was granted to the petitioners". A further ground mentioned by the
learned Judge for rejecting the preliminary objection put forward on the ground
of delay is that by reason of the Resolution dated March 1, 1974 passed by the
State Government directing that all temporary employees in the clerical cadre,
who had been recruited prior to January 1, 1971 without insistence on the
passing of the Public Service Commission examination, may be regularly absorbed
in service with effect from March 1, 1974 subject to the conditions mentioned
therein, the final Gradation List of personnel in the BRO published on November
23, 1972 has inevitably been upset and hence it cannot be said that any rights
have accrued to such of the employees in the BRO who were assigned ranks above
the writ petitioners in the impugned seniority list, so as to entitle them to
put forward the objection based on laches and delay.
We may also briefly set out the reasons
mentioned by the learned Judge in support of his conclusion that clauses (a)
and (c) of rule 4 and proviso to rule 7 of the Government Resolution dated
March 22, 1968 offend Articles 14 and 16 of the Constitution. Firstly, it is
stated by the learned Judge that since the petitioners had been directly
recruited as Supply Inspectors in the former CFD, they were in the position of
direct recruits to the cadre of Rationing Inspectors in the BRO and the
provision contained in the impugned rules for assignment of deemed dates to the
promotees coming from other departments on the basis of their continuous
service in the clerical cadre minus two years is against "the normal rule
which determines the seniority on the basis of the dates of appointment to the
post". According to the learned Judge, any 89 departure from the "normal
rule" mentioned by him must be justified by rational, relevant and cogent
reasons and since there was no material "to justify the enactment of the
said abnormal rule for determining seniority" either in the impugned
Resolution itself or in the return filed on behalf of the State, the provisions
contained in the impugned rules had to be struck down on the ground of
infringement of Articles 14 and 16 of the Constitution. The second reason
stated by the learned Judge is that there is an inherent fallacy in the attempt
made by the impugned rules to equate the post of Supply Inspector in the CFD to
the posts in clerical cadres in other departments and the impugned rules in so
far as they provide for the fixation of inter se seniority of Rationing
Inspectors/Senior Clerks/Deputy Accountants in the BRO by giving credit to the
service rendered by the "released Government servants" in the
clerical cadre in their parent departments subject to a deduction of two years
therefrom is violative of Articles 14 and 16. In the opinion of the learned
Judge, it was not legally open to the Government, while laying down rules for
fixation of seniority in the category of Rationing Inspectors/Senior Clerks, to
make a provision for taking into consideration any service rendered by the deputationists
in the lower post of Clerk and that by itself spells out discrimination. The
learned Judge has expressed the view that in treating a clerk with two years'
service on a par with the Supply Inspector of the CFD, the impugned Resolution
has treated unequals as equals and thereby committed a clear breach of
provisions of Articles 14 and 16 of the Constitution. Lastly, it was held by
the learned Judge that, since under the provisions of the impugned Resolution
the deemed date of appointment of a promotee depends upon two factors, namely,
his inter se seniority amongst the persons who have been promoted from his
department and his continuous service in the clerical cadre minus two years, it
is inevitable that whenever a person from some other department is taken on
promotion to the BRO, the deemed date of appointment of persons drawn earlier
from the same department is likely to get altered and since in consequence
thereof the deemed dates of the direct recruits will also undergo a change, the
seniority of the direct recruits is made dependant on uncertain events which
has no reasonable nexus with the object and purpose of the rules and the rule
has therefore to be struck down as arbitrary and violative of the principles of
equality of opportunity enshrined in Articles 14 and 16 of the Constitution.
Twenty nine persons belonging to the category
of "released Government servants" who are amongst the respondents in
the writ 90 petition and whose seniority etc., were adversely affected by the
decision rendered by the learned Single Judge, preferred a Letters Patent
Appeal before a Division Bench of the High Court, but that appeal was dismissed
in limine by the Division Bench, and hence they have filed this appeal in this
Court after obtaining special leave.
After giving our anxious consideration to the
arguments addressed by counsel appearing on both sides, we have unhesitatingly
come to the conclusion that the view expressed by the High Court that clauses
(a) and (c) of rule 4 and the proviso to rule 7 of the impugned Government
Resolution dated March 22, 1968 are violative of the provisions of Articles 14
and 16 of the Constitution, is unsustainable in law and that the direction
given by the High Court to the State Government to prepare a fresh seniority list
without taking into consideration the aforesaid provisions of the impugned
Government Resolution and to give to the writ petitioners consequential
benefits, including promotions and the emoluments on the n basis of such
revised seniority gradation list was not called for. We are also of opinion
that the High Court was wrong in over- ruling the preliminary objection raised
before it by the present appellants that the writ petition in so far it sought
to challenge the legality of the Government Resolution dated March 22, 1968,
was highly belated and was liable to be dismissed on the ground of laches and
delay.
The challenge in the writ petition was
directed mainly against the Government Resolution dated March 22, 1968, which
laid down the principles for determining the inter se seniority of personnel
appointed in the different categories of posts in the newly constituted BRO. lt
may be assumed that the principles enunciated in the said Resolution did not
come to the knowledge of the petitioners and other employees of the BRO
immediately after the Resolution was passed by the State Government. But in
implementation of those principles, a provisional gradation list of Rationing
Inspectors/Senior Clerks/Deputy Accountants of the BRO as on April 1, 1968 was
drawn up and issued by the Controller of Rationing on May 28, 1971. Paragraph 3
of the order dated May 28, 1971 where under the said gradation list was issued
contained a specific direction to all the Deputy Controllers of Rationing in
the Head Office and also in the regions and to the Rationing offices, to
exhibit one copy of the gradation list together with a copy of the said order
whereunder the list was issued on their respective office Boards, use another
copy for obtaining signatures of all the persons who were still borne 91 on the
establishment of the BRO and keep the third copy for the office record. It was
directed in the same paragraph that "it should be seen that all the
persons working in this organisation, including those on leave or under suspension
or retired, are informed of their seniority and rank and their signatures
obtained in token thereof". In the absence of any acceptable evidence to
the contrary, it is legitimate to presume that the said direction had been duly
carried and that the provisional gradation list and the order dated May 28,
1971 had been duly brought to the notice of all personnel belonging to the
concerned categories then working in the BRO. It is important to notice that in
the first paragraph of the aforesaid order dated May 28, 1971, it had been
expressly mentioned that the provisional gradation list had been drawn up in
accordance with the seniority principles enunciated in the Government
Resolution dated March 22, 1968. Paragraph 2 of the said order also contained a
brief summary of the principles on which the gradation list had been drawn up.
In paragraph 5 of the order, it was stated that it was open to the persons
whose names were included in the gradation list to make representations about
the fixation of their seniority on or before June 21, 1971, and that
representations received thereafter will not be entertained on any account. It
is to be remembered in this context that the BRO is a small organisation
functioning only in the city of Bombay. Since copies of the order dated May 28,
1971 and the provisional gradation list had been circulated in the Head office,
the Regional offices and all the Rationing offices of the BRO and also shown
individually to all the members of the staff working in the different offices,
the writ-petitioners must be taken to have become fully aware of the principles
laid down in the Government Resolution dated March 22, 1968 at least when the
provisional gradation list dated May 28, 1968 was so published and circulated.
None of the writ-petitioners, however, preferred any objection against their
ranking in the said provisional gradation list. On November 23, 1972, a final
gradation list of Rationing Inspectors/Senior Clerks/Dy. Accountants of the BRO
as on April 1, 1968 was published with directions for bringing the said list
also to the notice of all the persons borne on the concerned categories of the
organisation. Even after the circulation of the said list, the writ-petitioners
did not file any objections against the ranking given to them in the said list,
which was based on the principles enunciated in the Government Resolution dated
March 22, 1968, nor did they take any steps whatever to challenge the
constitutional validity of those principles, 92 Subsequently, another
provisional gradation list of Rationing Inspectors/Senior Clerks/Dy.
Accountants as on April l, 1972 was published by the Controller of Rationing on
April 9, 1973. In that list also, it was expressly mentioned that it had been
drawn up in accordance with the seniority principles enunciated in the
Government Resolution dated March 22,1968. This list was admittedly brought to
the knowledge of the petitioners and the other personnel working in the
concerned categories in the BRO. In the order dated April 9, 1973, where under
the said list was issued, it had been specified that representations against
the seniority and ranking should be submitted to the Controller of Rationing on
or before May 1, 1973 and that thereafter no representations would be
entertained on any account. The writ-petitioners did not file any objections
within the said period. However, writ-petitioners l to 3 submitted certain
written representations to the Controller of Rationing in November, 1973,
contending that the "deemed dates" assigned to them in the gradation
list were incorrect. Even in those representations, no objection was raised
against the principles for determination of seniority enunciated in the
Government Resolution of 1968, and there was no protest whatever against the
provision made in the said Resolution for fixation of the seniority of
"released Government servants" by giving them credit for the length
of regular service put in by them as clerks in other departments minus two
years. The representations filed by petitioners I to 3 were rejected by the Con
troller of Rationing by orders passed in December ]973, wherein it was stated
that the seniority and ranking assigned to them in the provisional gradation
list could not be altered in view of the pro visions contained in rule 4 (a)
and the provision to rule 7 of the Rules laid down in the Government Resolution
of 1968.
If the petitioners desired to challenge the
constitutionality of Rules contained in the Government Resolution dated
November 22, 1968, they should have woken up at least when they received the
aforesaid replies from the Controller of Rationing and approached the Court for
appropriate relief within a reasonable time thereafter. No such action was
taken by them and all that they did was merely to address some further
representations to the Secretary, Food & Civil Supply Department
reiterating the request made by them before the Cont roller of Rationing for
alteration of their "deemed dates". Writ petitioners l l and 12 are
also seen to have submitted some belated representations against the
provisional gradation list complaining that the "deemed dates"
assigned to them were incorrect. In those representations also, there was no
protest or objection raised against 93 the principles laid down in the
Government Resolution dated November 22, 1968.
On March l, 1974, the Government of
Maharashtra passed a Resolution directing that non-PSC persons who were
employed in the Ministerial posts, namely, Clerks, Typists, Clerks-typists,
Steno-typists and Stenographers in the Secretariat Departments and various
Government offices in Greater Bombay, prior to January 1, 1971, and who were in
the service of Government on the date of the issue of the said Order, should
continue in Government service without being replaced by the candidates
selected by the Maharashtra Public Service Commission, provided they possessed
the minimum educational qualifications prescribed for the post to which they
were appointed and they were also within the age limits prescribed for
appointment to the respective posts held by them at the time of their initial
appointment to such posts. It was made very clear in paragraph 4 of the said
order that the seniority of the non-PSC persons on whom the benefit of
permanent absorption in service was conferred thereunder was to be fixed only
with reference to the date of the said order and that all the Public Service
Commission selected candidates who were working in the various
departments/offices prior to the date of the said Resolution would be treated
as seniors in relation to the non-PSC persons covered by the said order. It is
manifest that this order did not in any way affect the inter se seniority
between the writ petitioners and the released government servants drafted to
the BRO from other Government departments wherein they had been holding posts
on a regular basis after having passed the Public Service Commission
examination. It is also worthy of note that the Government Resolution of 1974
was a general order applicable to all the non-PSC personnel functioning on a
temporary or ad hoc basis in the Secretariat as well as the various departments
of the State Government and except as indicated above it did not have any
special applicability to the BRO.
On November 18, 1975, another provisional
gradation list of Rationing Inspectors/Senior Clerks/Deputy Accountants of the
BRO as on April 1, 1974 was published by the Controller of Rationing.
Representations were filed by writ petitioners l to 3 objecting to the ranking
assigned to them in the said provisional gradation list and it was only in
those representations that an objection was specifically taken by them for the
first time that the "released" personnel from other departments who
had been appointed in the cadre of Rationing Inspectors in the BRO should not
be assigned seniority over them 94 since those persons had been working in
their parent departments only in the capacity of Clerks. The representation of
writ-petitioner 1 was filed on December 3, 1975 while those of writ petitioners
2 and 3 on November 27, 1975 and December 9, 1975. Shortly thereafter, the
petitioners approached the High Court by filing the writ petition on January
31, 1976.
The view expressed by the learned single
Judge of the High Court that a writ petition filed under Article 226 of the
Constitution, seeking redress on the ground of alleged infringement of
fundamental rights cannot be dismissed by the court on the ground of laches,
under any circumstances, is inconsistent with the pronouncements of this Court
on the subject and cannot be accepted as correct or sound.
In Tilokchand Motichand and Ors. v. H.B.
Munshi & Anr.,(1) this Court had occasion to deal with a contention that
the right to move the Supreme Court under Article 32 of the Constitution, being
a fundamental right, a writ petition filed in the Supreme Court under the said
provision cannot be dismissed on the ground of delay or laches, since such a
course would amount to a denial of a fundamental right.
Repelling the said argument, Mitter, J.
Observed thus:
"I cannot however find any merit in the
contention that because there is an invasion of a fundamental right of a
citizen he can be allowed to come to this Court, no matter how long after the
infraction of his right he applies for relief. 'I he Constitution is silent on
this point; nor is there any statue of limitation expressly applicable, but
never the less, on grounds of public policy I would hold that this Court should
not lend its aid to a litigant even under Art.
32 of the Constitution in case of a
inordinate delay in asking for relief and the question of delay ought normally
to be measured by the periods fixed for the institution of suits under the
Limitation Acts.
The Limitation Acts do not in terms apply to
claims against the State in respect of violation of fundamental rights. A
person complaining of infraction of any such rights has one of three courses
open to him. He can either 95 make an application under Art. 226 of the
Constitution to a High Court or he can make an application to this Court under
Art. 32 of the Constitution, or he can file a suit asking for appropriate
reliefs. The decisions of various High Courts in India have firmly laid down
that in the matter of the issue of a writ under Art. 226 the courts have a
discretion and may in suitable cases refuse to give relief to the person
approaching it even though on the merits the applicant has a substantial
complaint as regards violation of fundamental rights.
Although the Limitation Act does not apply,
the courts have refused to give relief in cases of long or unreasonable delay.
As noted above in Bhailal Bhai's case [1964] 6 SCR 261, it was observed that
the "maximum period fixed by the legislature as the time with in which the
relief by a suit in a civil court must be brought may ordinarily be taken to be
a reasonable standard by which delay in seeking remedy under Art. 226 can be
measured." on the question of delay, we see no reason to hold that a
different test ought to be applied when a party comes to this Court under Art.
32 from one applicable to applications under Art. 226.
In my view, a claim based on the infraction
of fundamental rights ought not to be entertained if made beyond the period
fixed by the Limitation Act for the enforcement of the right by way of suit.
While not holding that the Limitation Act applies in terms, I am of the view
that ordinarily the period fixed by the Limitation Act should be taken to be a
true measure of the time within which a per son can be allowed to raise a plea
successfully under Art. 32 of the Constitution." To the same effect are
the following observations of Sikri, J. in his separate judgment in the same
case:
"A delay of 12 years or 6 would make a
strange bed-fellow with a direction or order or writ in the nature of mandamus,
certiorari and prohibition. Bearing in mind the history of these writs I cannot
believe that the Constituent Assembly had the intention that five Judges of
this Court should sit together to enforce a fundamental right at the instance
of a person, who had without any reasonable explanation slept over his rights for
6 or 12 years. The history of these writs both in England and the U.S.A.
96 convinces me that the underlying idea of
the Constitution was to provide an expeditious and authoritative remedy against
the introads of the State.
If a claim is barred under the Limitation
Act, unless these are exceptional circumstances, prima facie it is a stale
claim and should not be entertained by this Court. But even if it is not barred
under the Indian Limitation Act, it may not be entertained by this Court if on
the facts of the case there is unreason able delay.
It is said that if this was the practice the
guarantee of Art. 32 would be destroyed. But the article no where says that a
petition, howsoever late, should be entertained and a writ or order or
direction granted, howsoever remote the date of infringement of the fundamental
right. In practice this Court has not been entertaining stale claims by persons
who have slept over their rights." In Rabindra Nath Bose and Ors. v. Union
of India and Ors.,(1) the identical question again came up to be considered by
this Court, and Sikri, J. speaking on behalf of the Constitution Bench, said
this:
"But in so far as the attack is based on
the 1952 Seniority rules, it must fail on another ground. The ground being that
this petition under Art. 32 of the Constitution has been brought about IS years
after the 1952 Rules were promulgated and effect given to them in the Seniority
List prepared on August I, 1953. Learned Counsel for the petitioners says that
this Court has no discretion and cannot dismiss the petition under Art.
32 on the ground that it has been brought
after inordinate delay. We are unable to accept this contention.
The learned Counsel for the petitioners
strongly urges that the decision of this Court in M/s. Tilokchand Motichand's
(2) case needs review. But after carefully considering the matter, we are of
the view that no relief should be given to petitioners who, without any
reasonable explanation, approach this Court under Art. 32 97 of the
Constitution after inordinate delay. The highest A Court in this land has been
given original Jurisdiction to entertain petitions under Art. 32 of the
Constitution. It could not have been the intention that this Court would go
into stale demands after a lapse of years.
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 makers 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 rights which have accrued to them. Each person ought to be entitled to
sit back and consider that his appointment and promotion effected a long time
ago would not be set aside after the lapse of a number of years." The same
position was reiterated by this Court in Malcom Lawrence Cecil D'Souza v. Union
of India and Ors.(l) and again in a very recent pronouncement of this Court in
S S. Moghe and Ors. v. Union of India and ors.(2) We may usefully extract the
following observations contained in paragraph 23 of the judgment of this Court
in the last mentioned case:
"At this stage, it will be convenient to
first dispose of the contentions urged by the petitioners, against the validity
of the promotions given to respondents 8 to 67 during the period between 1968
and 1975. In our opinion, the challenge raised by the petitioners against these
promotions is liable to be rejected on the preliminary ground that it is most
highly belated. No valid explanation is forthcoming from the petitioners as to
why they did not approach this Court within a reasonable time after those
promotions were made, in case they really did feel aggrieved by the said action
of the Department This writ petition has been filed only in the year 1979, and
after such a long lapse of time the petitioners cannot be permitted to assail 98
before this Court the promotions that were effected during the years 1968 to
1975. A party seeking the intervention and aid of this Court under Article 32
of the Constitution for enforcement of his fundamental rights, should exercise
due diligence and approach this Court within a reasonable time after the cause
of action arises and if there has been undue delay or laches on his part, this
Court has the undoubted discretion to deny him relief (see Rabindra Nath Bose
v. Union of India,(1) The Government Resolution of March 22, 1968 must have
come to the knowledge of the writ petitioners at least when the provisional
seniority list dated May 28, 1971 was circulated amongst the staff of the BRO.
Thereafter, in November 1972, a final Gradation List of Rationing Inspectors/Senior
Clerks/Deputy Accountants of the BRO as on April 1, 1968 had been published and
the said list was circulated to all the members borne on the concerned
categories of the organisation. It was expressly stated in both the aforesaid
lists that the ranking of personnel had been effected in accordance with the
principles laid down in the Government Resolution dated March 22, 1968. The
writ petitioners did not file any objections against the provisional list
despite representations having been invited, nor did they take any steps to
question the validity of the final gradation list or the seniority principles
laid down in the Government Resolution of 1968, on the basis of which the said
list had been prepared.
Still later, in April 1973, another provisional
Gradation List of personnel working in the aforesaid categories was published
by the Controller of Rationing and the said list, which was also drawn up in
accordance with the seniority principles enunciated in the Government
Resolution of March 22, 1968, had been admittedly brought to the knowledge of
the writ petitioners. They did not file any objections against the said list
within the time prescribed.
And what is more significant is that even in
the earlier representations filed by writ petitioners 1 to 3, which they filed
in November 1973, no objection or protest was raised by them against the
principles for determination of seniority laid down in the Government
Resolution of 1968.
The Controller of Rationing informed writ
petitioners 1 to 3 in December 1973 itself that the representations stood
rejected since the seniority and rank assigned to them in the pro- 99 visional
Gradation List were in strict conformity with the principles laid down in the
Government Resolution of 1968.
Even there after, the petitioners did not
wake up and it was only on January 31, 1976 that they approached the High Court
by filing the present writ petition out of which this appeal has arisen seeking
to quash the Government Resolution of 1968 and the Gradation Lists of November
18, 1975 and November 27, 1975. The petitioners have not furnished any valid
explanation whatever for the inordinate delay on their part in approaching the
Court with the challenge against the seniority principles laid down in the
Government Resolution of 1968. As already indicated by us, the fact that the
Government had subsequently passed a Resolution dated March l, 1974 directing
the regularisation of the temporary appointments of non-P.S.Cs. clerical
personnel working in Ministerial posts in the different Government Departments
in Greater Bombay, has no relevancy at all in this context of dealing with the
question of delay and laches on the part of the petitioners in taking steps to
challenge against the Government Resolution of 1968. The inter se seniority
between the petitioners and the other personnel regularly absorbed in the BRO
who have come over to the BRO as "released Government servants" is
not in any way affected by the said Government Resolution of April 1, 1974,
inasmuch as it has been expressly made clear therein that the temporary
personnel who are entitled to the benefit of regularisation thereunder were to
be assigned seniority only on the basis that regular appointments were effected
on the date of issue of the said order. The learned Single Judge of the High
Court was, therefore, clearly in error in thinking that the passing of the
Government Resolution of 1974 furnished a fresh cause of action for the
petitioners for agitating their contentions regarding the invalidity of the
Government Resolution of 1968. We are unable to appreciate the further reason
stated by the learned Single Judge, that the respondents had not placed on
record any factual data to show the extent of promotions made on the basis of
the seniority list of 1972 and the manner in which the promotees would be
affected if the relief was granted to the writ petitioners, and the same we
find to be is based on a totally incorrect approach. It is to be noticed that
there was no dispute before the High Court that from the date of publication of
the provisional list of May 28, 1971, which was expressly based on the
principles laid down in the Government Resolution of 1968, the seniority and
rank of all the personnel in concerned categories had been fixed in accordance with
the principles laid down in the impugned Resolu- 100 tion. In the
counter-affidavits filed in the High Court on behalf of the State Government
and the Controller of Rationing as well as in the affidavits filed by the other
respondents, it had been specifically averred that innumerable promotions had
been made during the period of six years on the basis of seniority as fixed in
accordance with the impugned rules and many officers had gone up by two or
three stages as a result of such promotions. Further, there is the clinching
fact that the writ petitioners themselves had impleaded as many as 162 officers
as respondents on the ground that they were all likely to be affected in case
the reliefs claimed in the writ petition were granted. In these circumstances,
we consider that the High Court was wrong in over-ruling the preliminary
objection raised by the respondents before it, that the writ petition should be
dismissed on the preliminary ground of delay and laches, inasmuch as it seeks
to disrupt the vested rights regarding the seniority, rank and promotions which
had accrued to a large number of respondents during the period of eight years
that had intervened between the passing of the impugned Resolution and the
institution of the writ petition. We would accordingly hold that the challenge
raised by the petitioners against the seniority principles laid down in the
Government Resolution of March 22, ]968 ought to have been rejected by the High
Court on the ground of delay and laches and the writ petition in so far as it
related to the prayer for quashing the said Government Resolution should have
been dismissed.
On the merits also, we do not find any
substance in the attack levelled by the petitioners against the legality and
validity of the seniority principles laid down in the impugned Government
Resolution of March 22, 1968. We shall briefly indicate our reasons for
reaching this conclusion.
The BRO was a totally new Department which
was constituted on March 1, 1966 pursuant to the Government Resolution dated
February 11, 1966. Under the said Resolution, it was directed that the staff
for manning the new organisation should consist of:
(a) the skeleton staff already sanctioned
under an earlier Government Resolution dated October 21, 1965 for carrying out
the preliminary work in connection with the establishment of the new
organisation (BRO);
101 (d) the existing staff under the
Controller of Foodgarins distribution, Bombay, Consisting of 384 posts which
were to be merged with a new Bombay Rationing office (BRO) with effect from
March 1, 1956;
(c) personnel drawn on deputation from other
departments of the State Governments; and (d) persons directly recruited to the
BRO.
Here is, therefore, a case where the staff
for manning a new department has been drawn from four different sources. In
such a situation, it was inevitable that some reasonable principles had to be
formulated for the determination of the inter se seniority of the personnel
appointed to work in the different categories of posts in the new organisation.
The entire argument of the petitioners is based on an erroneous assumption that
from the very inception they belonged to the BRO and had some vested rights
with respect to seniority and rank in the said organisation. The petitioners
who were members of the staff of the CFD were taken into the BRO along with the
skeleton staff appointed under the Government Resolution dated October 21, 1965
and the "released Government servants" etc., as part of the single
scheme formulated by the Government for the constitution of a new department
(BRO). There is therefore, no substance in the contention advanced by the writ
petitioners that they stood on a separate and superior footing for the purpose
of seniority etc., in the new organisation. In this connection, it is relevant
to note that the writ petitioners were holding the posts of Supply Inspectors
in the CFD only on the basis of appointments which were purely temporary. They
had not been recruited through the Public Service Commission but were given temporary
appointments on the basis of recommendations made by the Employment Exchange
and their services were terminable at any time without notice. Thus the
position that existed at the time of the formation of the BRO was that the writ
petitioners were not holding any substantive or regular appointments in the CFD
which itself was only a temporary Department. In contrast, the deputationists
who came over to the BRO as "released Government servants" were
persons who had been holding for many years Ministerial posts in other
Government departments on regular basis pursuant to their recruitment by the
Public Service Commission. Under the impugned seniority rules laid down by the
Government Resolution dated March 22, 1968, a deputationist 102 (released
Government servant) 'with two years' regular service as Clerk in other
Government departments has been equated with a Supply Inspector of the CFD and
it is on this basis that the inter se seniority as between the erstwhile CFD
personnel and the "released Government servants'' appointed to a post of
Rationing Inspectors/Senior Clerks/Deputy Accountants in the BRO is to be
reckoned. In our opinion, the said equation cannot be regarded as arbitrary or
unreasonable, especially when it is viewed in the context of the factual
background that the Supply Inspectors in the CFD were merely temporary hands
whose appointments were of a precarious nature and the functions and duties
performed by them are not shown to have been substantially different from those
discharged by the clerks in other Government departments. The principle laid
down in rule 4 (a) that the seniority of "released Government
servants" and merged Government servants in the cadres of Senior Clerks,
Rationing Inspectors and Deputy Accountants shall be determined with reference
to dates which shall be fixed after deducting two years from the date of
continuous service whether officiating or permanent rendered by him in the
cadre of clerks, typists etc., appears to our minds to be perfectly just and
unexceptionable in the circumstances of the case. The reasons stated by the
learned Single Judge of the High Court for declaring the aforesaid rule to be
arbitrary and violative of Article 16 of the Constitution do not appeal to us
as correct or sound. Almost the entire reasoning of the learned Single Judge is
based on an assumption that there is an invariable "normal rule" that
seniority should be determined only on the basis of the respective dates of
appointment to the post and that any departure from the said rule will be prima
facie unreasonable and illegal. The said assumption is devoid of any legal
sanction. We are unable to recognize the existence of any such rigid or
inflexible rule. It is open to the rule-making authority to take a note of the
relevant circumstances obtaining in relation to each department and determine
with objectivity and fairness what rules should govern the inter se seniority
and ranking of the personnel working in the concerned departments and the
courts will only insist that the rules so formulated should be reasonable, just
and equitable. Judged by the said test of reasonableness and fairness, the
action taken by the Government in equating the clerical personnel which had
rendered two years regular service in other departments with the temporary
Supply Inspectors of the CFD and in directing as per impugned rule 4 (a) that
their inter se seniority shall be determined with reference to the length of
service calculated on the basis of the said equation cannot be said to be in
any 103 way discriminatory or illegal. We are unable to accept as 14 correct
the view expressed by the learned Single Judge of the High Court that
"while fixing the Seniority in the higher post, it is not open to take
into consideration any service rendered in the lower post and that by itself
spells out discrimination " Firstly, it is not correct to regard the post
of a regular clerk in the other departments as lower in grade in relation to
that of a Supply Inspector in the CFD. Further, in S.G Jaisinghani v. Union of
India and O ors.,(1) this Court has pointed out that in the case of recruitment
to a service from two different sources and the adjustment of seniority between
them a preferential treatment of one source in relation to the other can
legitimately be sustained on the basis of a valid classification, if the
differences between the two sources has a reasonable relation to the nature of
posts to which the recruitment is made. In that case, this Court upheld the
provision contained in the seniority rules of the Income-tax Service, whereby a
weightage was given to the promotees by providing that three years of
outstanding work in Class II will be treated as equivalent to two years of
probation in Class I (Grade II) Service.
We may also extract, with advantage, the following
observations of Palekar, J., speaking on behalf of the Constitution Bench, in
Bishan Sarup Gupta v. Union of India and ors.(2):
"There is no question in this case of
any discrimination being made in a service after officers from the sources have
been brought in one cadre. It is true that seniority is a vital element in the
matter of promotion but that does not mean that allotment of seniority by rule,
relative to recruitment, involves any classification for the purposes of
promotion. The argument that the promotees and direct recruits became one class
immediately on entry and, there after, there could be no classification between
them does not disclose the correct approach to the problem of fixing inter se
seniority between them. When recruits from two sources have come into a service
it is essential to fix inter se seniority for a proper integration of the
cadre. Therefore, it is really a case of adjustment of seniority between the
recruits and does not amount to making a classification after their absorption
in one service." 104 A comparison of the pay scales of the Supply
Inspectors in CFD with that of Clerks in the other departments shows that
though the clerks started with a lower salary, their pay scale reached a much
higher level than that of the Supply Inspectors It is also relevant to notice
that the next promotion post available to the clerks in other Government
departments from where they had gone on deputation to the BRO was that of
Assistant or Head Clerk in the Grade of Rs. 200-450 or Rs. 200-300, while the
next promotion post of Supply Inspector in the former CFD was that of an
Assistant Zonal officer in the Grade of Rs. 200- 300. Further the post of
Assistant' to which the Clerks in other Government departments get a promotion
has been declared to be equivalent to the post of Assistant Rationing officer
in the BRO which is the post immediately above that of Rationing Inspector in
the BRO. When all these factors are taken into account, it becomes clear that
the post of Supply Inspector in the CFD cannot be regarded as a post higher
than or superior to that of clerk in the other Government Departments. Hence,
we do not find it possible to uphold the view expressed by the learned n Single
Judge of the High Court that the seniority principle embodied in rule 4(a)
treats unequals as equals and that it is, therefore, violative of Articles 14
and 16 of the Constitution.
When personnel drawn from different sources
are being absorbed and integrated in a new department, it is primarily for the
Government or the executive authority concerned to decide as a matter of policy
how the equation of posts should be effected. The courts will not interfere
with such a decision unless it is shown to be arbitrary, unreasonable or
unfair, and if no manifest unfairness or unreasonableness is made out, the
court will not sit in appeal and examine the propriety or wisdom of the
principle of equation of posts adopted by the Government. In the instant case,
we have already indicated our opinion that in equating the post of Supply
Inspector in the CFD with that of Clerk with two years regular service in the
other Government departments, no arbitrary or unreasonable treatment was
involved.
Clause (c) of rule 4 which is the next
provision that has been struck down by the High Court merely states that the
seniority of Government servants in the cadre of Senior Clerks/Rationing
Inspectors/Deputy Accountants shall be refixed in accordance with the
principles laid down in clauses (a) and (b) of rule 4. We have repelled the challenge
against clause (a) of rule 4 and no challenge has 105 been raised by the
petitioners before us against clause (b) of the said rule. It must
automatically follow that the aforesaid provision contained in clause (c) of
rule 4 is perfectly valid and constitutional.
That takes us on to the proviso to rule 7
which is the only other provision struck down by the High Court. Clause (a) of
rule 7 lays down that in the case of Government servants taken into the BRO on
release from one and the same office, their seniority inter se in their former
office shall be maintained in the BRO. Clause (b) is a similar provision
relating to the "merged Government servants" (ex- CFD personnel).
Clause (c) of rule 7 lays down that the inter se seniority of persons directly
recruited in the former CFD organisation shall be governed by the principles
set out in the Government Resolution dated April l, 1963. It is further stated
in the said clause that in regard to persons who were taken to the CFD from one
and the same Government office/department, they shall take their rank according
to their inter se seniority in the office/ department from which they were
drawn. Thereafter, follows the impugned proviso which lays down that where
there is a clash of principles contained in the Government Resolution dated
April 1, 1963 with the seniority inter se in the former department, the
seniority inter se in the former Department shall prevail. The principles for
fixation of inter se seniority of personnel working in the CFD had been enunciated
by the Government in the Resolution dated April 1, 1963. What has done under
the impugned proviso is only to state that with respect to persons who have
been drafted into the CFD organisation from one and the same Government
department on deputation basis, their inter se seniority in the former
department shall not be disturbed and that to the said extent a deviation
should be made from the principles laid down in the Government Resolution dated
April 1, 1963.
We fail to see how the said direction contained
in the impugned proviso for preservation of the inter se seniority of
deputationists who have been drawn from one and the same Government department
to serve the CFD can be said to be arbitrary or unreasonable. It is a just and
whole- some principle commonly applied in such situations where persons from
other departments are drafted to serve on deputation their inter se seniority
in the parent department should be respected and preserved during the period of
such deputation to the new department. We, therefore, consider that the High
Court was in error in striking down the proviso to rule 7 as being violative of
Articles 14 and 16 of the Constitution.
106 It now only remains for us to examine
whether there is substance in the contention put forward by the writ
petitioners that even if the impugned seniority principles laid down in the
Government Resolution dated March 22, 1968 are to be regarded as valid, the
seniority lists dated November 18, 1975 and November 27, 1975 have not been
drawn up in accordance with those principles. The first point urged before us
is that the effect of clause (b) of rule 7 is to make the provisions of clauses
(a) and (b) of rule 4 inapplicable to merged government servants and to direct
that the seniority of the merged Government servants should be determined only
in accordance with the principles laid down in the Government Resolution dated
April 1, 1963. This argument is based on a total misconception of the scope and
effect of rule 7 (b). What that rule provides is only that as between the CFD
personnel who have been absorbed in the BRO their inter se seniority reckoned
on the basis of the principles contained in the Government Resolution dated
April 1, 1963 shall be preserved. In other words, the object and purpose of sub-clause
(b) is limited to the preservation and maintenance of the pre-existing inter se
seniority as between the CFD personnel even after their absorption in the BRO
and the said provision does not in any way hamper the operation of the
principles laid down in rule 4 for the fixation of the seniority of all the
personnel including the merged Government servants in the respective categories
in the BRO. A careful reading of the provision of clause (c) and the
illustrations given there under makes this position abundantly clear. The
aforesaid contention put forward on behalf of the writ petitioners will,
therefore, stand rejected.
There is, however, some substance in the
grievance put forward on behalf of the writ petitioners that in drawing up the
impugned seniority lists in purported application of the principles laid down
in clause (a) rule 4, many persons who were juniors to the writ petitioners in
the category of Supply Inspectors in the CFD have ranked above the petitioners
in the category of Inspectors / Senior Clerks/Deputy Accountants. There are
also instances where persons who were working in the CFD as clerks at the time
of the merger and were appointed in the BRO as clerks but have been
subsequently promoted in the BRO as Rationing Inspectors/Senior Clerks/Deputy
Accountants have been shown in the gradation list as seniors in relation to the
writ petitioners despite the fact that the writ petitioners were all along
functioning as Supply Inspectors in the CFD by virtue of their having been
recruited to the said category in that organisation. We do not find anything in
rule 4 (a) which warrants such an unfair treatment being meted out to persons
like the petitioners who were directly recruited as Supply Inspectors in the
CFD. Rule 7 clearly lays down that the operation of clause (a) of rule 4 is
subject to the limitation specified therein, namely, that in the case of merged
Government servants their inter se seniority will be preserved in tact. Hence,
no person who was functioning as a junior in relation to the writ petitioners
in the category of Supply Inspectors in the CFD can be assigned seniority or
rank above the writ-petitioners in the cadre of Rationing Inspectors/Senior
Clerks/Deputy Accountants in the BRO.
Similarly, no person who has been taken into
the BRO as a clerk from the CFD can under any circumstances be placed above the
writ petitioners in the gradation list of Rationing Inspectors/Senior
Clerks/Deputy Accountants of the BRO. It is clear from the averments contained
in the counter-affidavit filed on behalf of the State Government that the
aforesaid principle has been violated while preparing the two impugned
gradation lists dated November 18, 1975 and November 27, 1975. The explanation given in the counter-affidavit for adopting the said course does not appear
to us to be acceptable or sound. It was pointed out by the counsel for the
respondents (writ petitioners) that Exhibit 'A' produced along with the
counter-affidavit of the first respondent herein shows that as many as 30 persons,
who had joined the BRO as Clerks and were subsequently promoted as Rationing
Inspectors, have been shown as seniors in relation to the writ petitioners in
the gradation list dated November 18, 1975. Similarly, Exhibit 'B' gives the
names and particulars of persons who were appointed as supply Inspectors in the
CFD subsequent to the appointment of the petitioners, but who have nevertheless
been shown in the impugned gradation list as seniors to the writ petitioners in
the corresponding cadre in the BRO. We have already made it clear that on a
combined reading of rules 4 and 7 of the impugned seniority rules, the inter se
seniority of the CFD personnel has to be strictly maintained in tact, and that
no person who was junior in the CFD in the category of Supply Inspector can go
above his senior in that (Organisation after being absorbed in the BRO, and
also that no person who has been taken as a clerk in the BRO can go above
persons absorbed therein in the category of Rationing Inspectors.
In the light of what we have said above, the
impugned seniority lists in so far as they have been drawn up in devitation
from the legal position explained above call for immediate revision. We 108
would accordingly direct respondents 23 and 24 (State of Maharashtra and the Controller
of Rationing, Bombay) to revise the two impugned seniority lists and refix the
ranking assigned to the writ petitioners and others in the light of what we
have said in this judgment.
In the result, this appeal is allowed and
the- judgments of the High Court are set aside. The writ petition-Misc.
Petition No. 166 of 1976-is allowed only to the limited extent of the aforesaid
direction issued to respondents 23 and 24 for revision of the impugned
seniority lists and it is dismissed in other respects. The parties will bear
their respective costs.
P.B.R. Appeal allowed.
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