AMRIT LAL BERRY versus COLLECTOR OF CENTRAL EXCISE, NEW DELHI & ORS.

AMRIT LAL BERRY

COLLECTOR OF CENTRAL EXCISE, NEW DELHI & ORS. December 10, 1974

[M. H. BEG, v. R. KRISHNA IYER AND P. K. GoswAM1, JJ.]

Constitution of India 1950-Arts. 14, 16, 32 and 226-Fai/ure ro opp/JI rule-Wherher Justified invoking powers under Art. 32-Petition under Art. 32 m11st contain avmnents in full....:.Petitioner to satisfy the Court how hts f1111dll-mental right was infringed-Inordinate delay-Effect of-Distinction bttW•!tn petition urukr Art. 32 and 226-Beneflt of law declared by the Court to be given to others in like, circumstances withdut the need to go to Court --Demand for j1l,stice and it.r refusal must precede petition for mandaltllll.

The Ministry of Home Mairs by memorandum dated 22-& 1949 laid down that the seniority of government se1vants should be determined by 1tbe date of their appointment and not the date c>f their confirmaion. Jn the 6enfori-ty list issued in 1958 by the Excise Department the appellant was given bis due pla.ce. Tu: rule was altered in the Department by offi::e memorandum dat· ed 22-12·1959 by which seniority was determined from the date of confirma-tion. On 22-7··1972 an office memorandnm was issl!ed after the judgment of this' Court in Ravi Varma's case. It was alleged that this memorandum was based on wrong interpretation of the law laid down by this Court because while determining the seniority of the petitioner according to the 1949 rule. it did not award consequential benefits to which he was entitled had the 1949 memo-randum been followed. Representations to the Government impugning 1he seniority list having failed the petitioner has filed petition under. article 32 of the Comtitution.

It was contended on behalf of the respondent that tile petitions were barred by the principl~s of I aches and acquiescence. and that the assertions in the petitions did not conlain necessary averments to establish violations of funda-mental righl'S.

Dismissing the petitions,

HELD·. ( l) The petitions rest on the assumption that all that neeu to "be asserted was violation of some rule contained in an office memorandum. There is no doubt that the office memorandum dated 22-7-1972 was issued ·in corn;e-quence of the decision of this Court in Ravi Varma'a case to meet the situa· tion created by it in the context of previous offioe memorandum on !he sulb-ject. If the 1972 memorandum had· been correctly interpreted and applied the law laid down by this Court. had lbeen correctly applied there was no need to proceed further .with the consideration of the petitions: [96SE-F} ·

(2)(a) mere failure to apply rule which ought to have been applic~ may not, by itself, justify an invocation of the powers of this Court under 1111. 32 of the Constitution. In order to succeed in petition under art. 32 of tile Constitution the petitioner has to disclose how his fundamental right has bel•n infringed by p~rticular rule or decision or its application. The impoct of tl1e rule or decision upon the facts of each petitioner's fundamental right has to be clearly brought c>ut. [971 BJ

(b) Wliere petitioner alleges that .he had been denied equality of oppor-tunity for service. during the cou.rsi: of his employment as government ser· vant, it is incumbent upon him to disclose not only the rule said to be infringed but also how this opportunity was unjustifiably denied on each particulu oct'asion. [971 C1

(c) The equa~ity of opportunity in matter relating to employment implies equal treatment to persons similarly situated or in the same category as the petitioner. It postulate!l equality of conditions under which number of persoo! belonginr to the same category compete for the same opportunities and just and competing claims. It does not exclude justifiable discrimination. [971 DJ competing claims. It does not exclude justifiable discrimination. [971 Dl

(d) In so far as memorandum of 1972 does not direct reconsideratio!I of cases of all those persons who have actually missed confirmation or who were not considered at all for promotion at the time when they ought to have been considered, it fails ta give due and complete effect to what was decided by tbis Court ill Ravi Vanna's case. [970 F}

( e) As regards the contention of the petitioner that he was not given senior grade, neither the office memorandum of 1949 nor the petitioner gave conditions of entry into the senior grade. It was for the petitioner to satisfy the Court that he wa.~ not given the senior grade althoi.:gh he satisfied all the required conditions and that others, who were promoted into it, were given unjustifiable· preference over him. It is difficult to see how the petitioner was denied equality of oppor-tunity in not being given the senior grade in 1961 but was given only in 1967. [972 F}

(3) The inequality in the equitable balance brought into being by petitioner's own laches and acquiescence cannot be overlooked when considering claim to enforce the fundamental right to equal treatment. To treat unequals equally would also violate that right. Although it may not be possible for the State or its agents to plead an estoppel against daim to the fundamental right to equal tre'lltment, yet, if petitioner has been so remiss or negligent as to approach the Court for relief af'ter an inordinate and unexplained delay, he certainly jeopardises his claims as it may become inequitable, with circumstances altered by lapse of time and other fac!s, to enforce fundamental right to the detri-ment of simila'r claims cif innocent third persons. [973 BJ ·

Rabindra Nar/1 Bose & Ors. v. U11ion of !11dia & Ors. [1970) 2 S.C.R. 697 and Ramac/iandra Sliankar Deodhar and Ors. v. The Stale of Maharashtra and Or.<., [1974] S.C.R. 317 @ 325-326, referred to.

( 4) Ravi Varma's case was decided on an appeal from decision of the High Court in Writ Petition under Art. 226 of the Constitution. It was enOUl!h, for the purposes of petition under Art. 226 to show violation of an applicable rule of seniority laid down in the relevant executive instructions. But in peti-tion under Art. 32 of the Constitution violations of fundamental rights under Art. 16(1) of the Constitution have to be satisfactorily shown. [975 DJ

U11io11 of India v. Vasant Jayaram Karnik & Ors. A.I.R. 1970 SC 2092 dis-. ting?ished.

(5) (a) Merely by filing repeated or delayed representations, petitioner can· not get over the obstacles Which, delay in approaching the Court creates, because e41uitable rights of others may have arisen. When citizen aggrieved by the ac· tion of government department has approached the Court and obtained de-claration of law. in his favour, others, in like circumstances, should be able to·· Jely on the sense of responsibility of the department concerned and to expect tha.t they will be given the benefit of this declaration without the need to take their grievances to Court. [976 DJ

(b) demand for justice and its refusal must precede the filing of petition asking for direction or writ of mandamus. [976 El

Kamini Kumar Das Choud/111ry v. State of West Bmga/ and· Ors. AIR 1972 SC 2060 @ 2065, referred to. ·

(6) (a) The 1972 memorandum may fairly be interpreted to mean that (a) the 1949 memorandum will apply to all cases coyered by i! till the. 19S9 memo-randum came into effect (b) that those who are m good faith and m th~ re~lar course. confirmed and/or protno!ed regularly, though, by. an hones~ ~1sapphco· tion of the 1959. memorandum will not be disturbed even 1f they be 1umor to the daim:mts under the 1949 memorandum; (c) that in future. for vacancies and quotas. those with longer servic.e, as contempl~ted by the 1949 l!lemorandum, will ·be considered for confirmat10n and promotion:. and (d) that m the subse-H quent career of those who stand to benefit by the 19S9 i;n~morandum, tl!at fac!or will be ·reckoned in their favour when further opnortumt1es for J:>romo!lon anse, so that they may not suffer for ever from the mis-construction of .the meOloran· dum made by the Excise Department. [976 G-H; 977 Al · ·

(b). Th& seJliority of all u~confirmed persom is to bo determined iii acco.rd· anco with the law as declared by this Court on 4·1-1972, but, as reRlil'ds persons who had already been bona fide confirmed or promoted before 4-1-1972, no undoin11 of what had already been done in their favour would bo J?OSSible. Ntwer· theleaa, it wu laid down there that the cases of those who had failed to be either considered for confirmati!)n or promotion merely because of the failure to aP11ly tlte· length of service rule for determining seniority would not suffer but will be reconsidered no:W subject to existence of vacancies·in the ·grade for confimatfon, or in the promotion quota.. [977 F] . In the instant case, the petitioner in writ petition No. 463 of 1971 did 1101 p~ the prescribed departmental examination until November, 1954. He-was confirmed as soon as he could reasonably be Considered on the occurrence of the vacancy after he passed his examination. If the reasons for tho earlier confirn1a· lion of some persoris who obtained earlier promotions in the year 1971, are ju11ti-able on grounds other than length of service, it is difficult to see how the petitioner could complain of any unjust treatment violative of Art. 16(1) of the Constitu-tion. · numbec of promotions having taken place between 1959 and the. filing of the petition in 1971; and those who were so promoted and had been aatisfa.c-toril y dischargin.g, for considerable period's before the filing of the petition. thciir 'luties in .higl)er grade would acquire new claims and qualification by lapse> of time and due discharge of their new fun:tion., so ihat they could not, unless relief has been sough!; speadily agairist their allegE:dly illegal confirmation and pron:io-tions bo equ.itably equated with the .petitioner. [972 H; 973 A]

ORIGiNAL JURISDICTION : Writ Petitions Nos. 463 of 1971 & 2004 of 1973.

Petitions . under Art. 32 of the Constitution of India.

D. L. Singhvi, S. I(. Mehta and M. Qamaruddin, for the petitioners (In W.P; No. 463/71.)

.S. K. Mehta and M. Qamaruddin, for the petitiqners (In W.P. No. 2004/73) . .

M. N. Phadke and M. f':I. Shroff, for respondents (In W.P. No. 463/71) and respondents Nos. 1-4 (In W.P. No. 2004/73)

The Judgment of the Court was delivered by

BEO, J._.,Amrit Lal Berry in Writ Petition No. 463 of 1971 and K. N. Kapur & 14 others in Writ Petition No. 2004 of 1973 haye · applied to this Court under Artiele 32 of the Constitution of India. They complain of violation of Article 16 of the Constitution on the ground that they were illegally discriminated against by the respond· ents inasmuch as they_ were not confirmed and then promoted whim they ought to have been. They assert that if, according tQ the appli-. cable rule, they had been assign~ their correct places in. the seniority lists, as laid down in the ()fflce Memorandum dated 22:-6-1949, pre-pared by the Ministry of Home Affairs, they woilld have been duly promoted. Each of them, on similar facts,. relies UJ>'!? the law laiid .down by this Court, in Union of. lnilia v. M. Ravi Vanna & · Ol's. e~.(1) Assertions m the petition of Amrit Lal Berry . illustrate die nature of the cases of all the petitioners. We will indicate the c8sea of. the parties before we take up the questions of law ariSing for con-sideration and decision by us here.

Amrit Lal Berry was appointed Inspector in tho ~ntral · Bxcil;e Co!lectoratc at Delhi, by ordirs dated 22-11-1948, and, on 4-12-194:8, l7CO pootC!I at Feror.epm. On 22-6~1949, the Mini.s_try of ·.Home

Affairs issued Memorandum containing the principle that the senior-ity of. existing Govt. servants will be determined by the date of their appointment and not from the date of their confirmation. The peti-tioner asserts that, in accordance with this principle, he was correctly assigned his senioriny in the list issued in 1958 after the petitioner had been confirmed in permanent post under an order dated 5-5-1956 with 'effect from 1-7-1955. An extract from the order shows that; although, the petitioner is· B.A. and shewn as appointed on 15-12-1948, and. Narinder Singh, the Inspector next in order of senior-ity, who was only Matriculate, appointed subsequently on 7-2-1949,. was confirmed retrospectively with effect from 1-7-1953, that is to say, two years earlier than the petitioner. There 'is, however, differ-ence in age shown between the two inasmuch as the date of birth of the petitioner is given as 5-4-1925 whereas that of Narinder Singh is shown as 24-7-1911. The petitioner points out that, despite these different dates of confirmation of Inspectors, so that _juniors were sometimes confirmed earlier, they retained their seniorities in accord-ance with the Office Memorandum of 22-6-1949 which made the length. of service the only material consideration for purp0ses of seniority. But, after the Office Memorandum dated 22-12-1959, the rule applied was altered in the Excise Department. New seniority lists were pre-D pared in which seniorities were determined from the dates of confirma-tion. The result was that Government servants, who ought to have been placed below the petitioner have been, it is asserted, promoted as Superintendents of Central Excise in the years 1970 to 1971. The petitioner gave list of twelve juniors who have been so promoted because, according to him, the impugned seniority list of 1-7-1967 illegally put them above the petitioner. The petitioner also complain-E ed that, owing to the illegally prepared senioritv list, he had . been givep the grade of Senior Inspector only on 8-12-1967 and not with effect from 21-3-1961 as it ought to have been done. The petitioner complains of the allegedly illegal confirmation, going as· far back as 1955, and illegal .seniority lists prepared after 22-11-1959. He has annexed copies of representations dated 6-3-1965, and, 13-8-1971, to whlcQ, according to him, no replies were given. The petitioner, therefore, came to this Court seeking relief against what lte describes as the impugned list which, according to paragraph 8 of his petition is dated 1-7-1967 (Annexure 7 to his petition), and to allegedly illegal promotion of juniors without setting out the names or dates of prom()J. tions of all those so promoted. Presumably, these prmoted In.~pectors· are the 77 persons impleaded as respondents 5 to 81 in the petition· before us. Out of these, only twelve, with their places shown as low-er than the petitioner's number 204 in the list prepared before 1959. were soecifically mentioned in the list of alle~ illegal promotions of 1970-71. Amrit Lal Berry's petition to this Court was filed on 9-12-1971.

By an application dated 9-3-1973, Amrit Lal Berry sought an amendment of his Writ Petition asking this Court to quash the Office Memorandum dated 22-7-1972 on the ground that it does not inter-pret correctly the judgment of this Courtin Ravi Ya1'1na's case (supra)

delivered on 4-1-1972. The petitioner contends that office Men~o­randum, dated 22-7-1972, was based on wrong interpretation of ;the law laid down by this Court inasmuch as, while determining the senie>ri-ty of the petitioner according to the. 1949 rule, it does not award consequential benefits which would have been reaped by the petitio11er in the past, if the seniority rule, laid down in the 1949 memorandum, had been foll'owed in the past.

K. N. K:tpur and 14 others also give ·the dates of their appoint· ments as Inspectors ranging from 15-5·1944 in the case of K. N. Kapur to 19-1-1950 in the case of Ravinderlal. The dates of confirmation vary from 1-7-1956, in the case of K. N. Kapur, to 1-12-1962, in 1he case of S. L. Chopra. The dates of their entny into the senior grade also extend from 29-3-1965, in the case of M. S. Ahluwalia, to 22-11-1971, in the cases of~- L. Sharma and R. L~ Kapania. Colum-ns in list given in the Writ Petition, showing the serial numb1irs according to the seniority list prior to 22-12-1959 and the subsequi:nt seniority list of 1961, show wide gaps the biggest of which is in the .case of K. N. Kapur who came down from his place at No. 32 to No. 252. The seniority list complained of was, however, stated to be the one prepared in 1961. All the petitioners assert that the seniority lists of 1958 to 1959 were correctly prepared 'in accordance with the Office Memorandum of 22-6-1949. The whole mischief, according to the petitioners, resulted from misplacing of the names of the peti· tioners, after the 1959 memorandum, in the seniority list of 1961, which ignored the correct or applicable principle for preparation of fhe seniority lists according to the memorandum of 1949.

The Writ Petition of K. N. Kapur and 14 others dated 20-10-1973 was filed on 22-10·1973. In this petition, it is asserted that the offi.ce memorandum dated 22-7-1972 issued by the Ministry of Home Affairs (Annexure 'D' to the petition) and the Office mempranda, dat1id 16-3-1973 and 17 -3-1973, issued by the Ministry of Finance, are illegal inasmuch as they do not properly give effect to the decision of this Court in Ravi Varma's case (supra). The petitioners asked for the quashing of office memorandum dated 22-7-1972 prepared by the Ministry of Home Affairs and the office memoranda dated 16·3-1973 and 17-3-1973 prepared in the Ministry of Finance. The further relief asked for is that this Court ma~ direct the Collector of Central Excise and the Union of India to impfement the decision of this Court given on 4-1-1972 in Ravi Varma's case (supra) so that the offic:e memorandum dated 22-6-1949 and not the office memorandum dat1~ 22-f2-1959 rnay govern the cases of the petitioners. They also claim the· award of all benefits consequential ,to the correct preparation of seniority lists, such as confirmations, promotions, and payments of amounts which should· have been made in the past. ·

The petitions were opposed on various grounds. The alleged viola-tion of the law by the memoranda of 1972 and 1973 were, it was submitted, only attempts made by the opposite parties to adiust t11e operations of two opposing principles of justice and law laid down by this Court : tl'le seniority according to length ot serviee rule of 194•9 :and what may be t1111ed 'the principle of non-dillturbance of rights

claimed due to confirmations or promotions to higher post going far back. · It was submitted that .there had been no infringement qf any right or provision of law at all. Alternatively, it was urged that, even if the petitioners could make out violation of any applicable rules of law, regulating the conditions of service of the petitione~, they do not establish the. denial of any fundamental right of the petitioners con-ferred by Article 16 of the Constitutio1,1. In WllY event, the petitions are said to be barred by the principles 6f laches and acquiescence. It was also suggested by the learned Counsel for the opposite parties, particularly in the case of K. N. Kapur & Ors., that the cause of action asserted by each alleged infringement of right being separate on each occasion it should have been made the subject .matter of distinct and separate petition assailing the particular alleged infringement on each occasion. In the case of K. N. Kapur & others, the contention appear-c ed to be that there was not only misjoinder of causes of action but also of number of petitioners each of whom could only have sepa-rate cause of action whenever any alleged violatibn of fundamental right took place. .It was. also submitted that the assertions in the applications did not contain necessary averments to establish violations of fundamental rights so that petitions under Article 32 of the Consti-tution should be dismissed in limine on this ground alone. It was pointed out that the petition of K. N. Kapur and others did not even disclose demand made to the opposite parties to do justice, followed' by its refusal by the opppsite parties, so that condition precedent to the issue of Writ of Mandamus was also wanting here.

It is true that assertions in each of the two petitions life of very· general character. The petitions seem to rest on the assumption that: all that need be asserted is the violation of some rule contained in an· office D1emorandwn which governed the rights of the petitioners in the· past. There is no doubt that the office memorandum of 22-7-1972'. was issued, in consequence of the decision of this Court in Ravi' Varm<ls case (supra) dated 4-1-1972, to meet the situation created· by it in the context of previo\ls office memoranda on the subject. If the 1972 memorandum correctly interprets and applies the law laid down by this Court there would be no need to proceed funher with the consideration of the petitions before us. This memorandum itself gives the history of previous relevant office memoranda and the. need for their displacement by new instructions due to the decision of this Court in Ravi Varmtis case. It reads as fqllows : .

"No. 9/3/72-Estt(D) Government of India

Cabinet Secretariat,

Department of Personnel,

New Delhi, dated the 22nd July, 1972.

OFFICE MEMORANDUM

SUBJECT :~upreme Court-Civil Appeals Nos. 1~45 of 19~~. 1846 of 1968 and 50 of 1969-lnterpretauon of MtlliStry or Home Affairs O.M. No. 9/11/SS-RPS., dated 12.12-1959. regardin$ general p. rinciples for d~g seniority of verious categories of persons employed m Central Ser-vices-

As the Ministry of Finance etc. are aware, under the orders con-tained in Ministry of Home Affairs O.M. No. 30/ 44/ 48-Apptts., dated 22-6-1949, (copy enclosed as annexure 1), seniority in grade was to be determined, as g(!neral rule, on the basis of the total length of continuous service in the grade, as well as service in an. equivalent grade, the term ''Service in an. equivalent grade" being defined !IS ser-vice on rate of pay higher than the minimum of the time-scale of t:l1c grade concerned, irrespective of whether it was rendered in the Central or Provincial Government in India or Pakistan. Seniority of persons appointed on permanent or quasi-permanent basis prior to the 1st January, 1944 was, however, not disturbed by the office memorandum of 22-6-1949. The instructions contained in that 0.M. were issu1:d in order to safeguard the interests of displacerl Government servat1ts appointed to Central Services after partition, but as it was not possible to regulate the seniority of only displaced Government servants by giving them credit for previous service, the instructions of 22-6-1949 referred to above were made applicable to other categories of persons also appointed to Central Services. There were, however, certain services/posts which were exempted from the operation of the O.M. of 22-6-1949. In the course of time, displaced Government servar1ts h!ld, by and large, been absorbed in the various Central Services and their senioritiy fixed with reference to the length of service render1:d by them, as provided in the O.M. of 22-6-1949. It was, therefore, felt that it was no longer necessary to apply the instructions of 22-6-1949 in preference to the normal principles for determination of seniority. As result, revised principles of seniority were issued in December, 1959, in consultaticm with the Union Public Service Com-mission, vide Ministry of Home Affairs O.M. No. 9J11J55-RPS, dated 22-12-1959 (copy enclosed as annexure II), which is still in force.

2. As would be seen from para 2 and 3 of t11e O.M. of 22-12-1959 mentioned above, except as otherwise provided in that 0.M. or ex-cept for such services and posts for which separate principles of had already been issued or which might be issued thereafter, the seniority of all persons appointed to the various central services after the date of that O.M. (viz. 22-12-1959) was to be determined in accordance with the general principles of seniority contained in the annexure :to that O.M. and those general principles were not to apply with retros-pective effect. According .to para 2 of the annexures to that O.M., persons appointed in substantive or officiating capacity to grade prior to the issue of the general principles of seniority shall retain . their relative seniority already assigned to theni, or such seniority as maiy thereafter be assigned to them under the existing orderi; appli-cable to .their cases and shall en bloc be senior to all others in that grade. However, pam 3 of the annexure provides that permanent officers of each grade shall be ranked senior to persons who ljre ofli-ciating in that grade.

3. Keeping in view the objectives of the revised instructions coi~­tained in the O.M. of 22-12-1959, the Ministry of Home Affairs (now department of personnel) have all along held that while persons appointed prior to 22-12-1959 will retain their relative seniority alread:y fixed under the then existing orders, with effect from 22-12,1959,

persons

permanent employees of grade, including those confirmed in that grade prior to 22-12-1959, will r!lllk en bloc senior to non-perma-nent employees of that grade, irrespective of the fact whether such non-permanent employees were appointed to the ·grade before, on, or after 22-12-1959 .. Amongst permai;ient employees confirmed in the grade prior to 22-12-1959, their relative seniority already fixed accord-ing to the then existing orders would be maintained and they will rank senior to those confirmed in that grade after 22-12-1959. Amongst those confirmed after 22-12-1959, the relative seniority will be accord-ing to the order of confirmation. Similarly, amongst non-permanent employees of grade, the relative seniority of those appointed prior to 22-12-1959 will be on the .basis of the then existing orders, but they will rank ~n bloc senior to those appointed to that · grade· after 22-12-1959, but not yet confirmed in the grade.

4. This matter, however, came up for consideration before the Supreme Court in Civil Appeals (1) No. 1845 of 1968 (Union of India and others Versus M. Ravi Varma and others), (2) No. 1846 of 1968 (Union of India and others Versus S. Ganapati Kini and others) and (3) Ne. 50 of 1969 (Union of India and others Versus Suresh Kumar and otkers). In its judgment, dated 4-1-1972 (copy anne:-;ure ·III) in these cases, the court has not agreed with the view taken by the Ministry of Home Affairs (now Department of Personnel) in this matter, as outlined in para 3 above. The court while dismissing the three appeals has held that, except in certain cases (with which the Court were not concerned), the general principles embodied in the annexure to the O.M. of 22-12-1959 did not have retrospective effect and could not apply to persons appointed to the various Central Ser-E vices before that date. As result of the judgment, the question .whether, and 1f so, to what extent the seniority of persons appointed on regular basis pri,or .to 22-12-1959, which had been determined according to the O.M. of 22-6-1949 or office Memorandum no. 65/ 28/49-DGS(Apptts), dated the 3rd February, 1950, No. 31/223/50-DGS dated the 27th April, 1951, or No. 9/58/56-RPS dated the 4th August, 1956, but which had subsequently been revised according to the view taken in the matter vide para 3 above, should be revised further, has bec.n examined in consultation with the Union Public Service Commission and it has been decided that in services/posts under the Central Government to which the general principles for de-termining seniority contained in the office memorandum of 22-12-1959 apply, seniority of such persons should, with effect from 4th January 1972 (the date of the judgment of the Supreme Court) be restored as it stood 011 21-12-1959 in the grade concerned, irrespective of the fact or date of their confirmation and such persons a[1]011g with those appoimed on regular basis to tlze grade prior to 22-12-1959, shall continue to remain en bloc senior to the persons appointed to that grade after 22-12-1959. T-he revision of seniority in such cases will not, however, affect the con{irmationi already made in the grade prior to 4th January, 1972 or regular promotions therefrom prior to that date. Confirmations /promotions made on or after 4th Jai1uary, 1972 shall be reviewed, wherever necessary in the light of the above decision. If any person whose seniority is now revised according to these orders

is still not confirmed, though person junior to him has been confirm-ed, he may also now be considered, subject to availability of perma· nent vacancies in the grade, for confirmation in the grade, if he is othe.r· wise eligible for the same and is suitable for 1[1]1. Similarly, if peuon whose seniority is 11ow revised under these orders was not considered ·for promotion prior to 4·1-1972 for want of the requisite seniority, he may also be considered for such promotion subject to availability of promotion quota vacancies in the higher grade, if he is otherwise eligi· b/e for the same. However, on promotion to the higher grade, the seniority of such persons among the ·promotees in the higher grade would be regulated in accordance with para 5 of the general principle:s of seniority contained in . the annexure to Ministry of Home Affair:;' office memorandum of 22-12-1959.

5. In this corlnection it may also be mentioned that the general

principles of seniority contained in a11nexure to Ministry of Home Affairs O.M. dated 22-12-1959 were applied to some services/posts from 'date s1~bsequent to 22-12-1959. Such course was permissi-ble, v~de para 3 of the O.M. dated 22-12-1959 referred to above. I:e, in those services/posts, seniority was actually continued to be deteir-mined beyond 22-12-1959 in accordance with' the instructions laid down in Ministry of Home Affairs' O.M. of 22-6-1949, seniority of th.e employees in the service/posts concerned might have been revised from the date from which the general principles of seniority contained in the annexure to the O.M. of 22-12-1959 were adopted in resr'.C:t of those services/posts on the ·basis of tpe interpretation of the Minis:. try of Home Affairs (now department of Personnel) given in parll 3 above. In such cases also, the principle laid down by the Supreme Court would apply, viz. that the S!lniority of persons appointed to the services/posts referre4 to above prior tc1 t~ date of application .of tlle principles contained in the O.M, of 12-12·1959, would continue to bt:Y governed by the rules/orders in force before such application. Hence tm action suggested in para 4 above would apply pari passu to those cases as well.

6. Ministry of F'ma1,1ce etc. are requested to take action accordinB:· ly in respect of Government employeLls serving in or under tha1t Ministry.

tha1t

FIARlSH CHANDRA

Unde1 Secretary to the Goverrunent of Indil!:.

All Ministries with usual number of spare copies. Departll)ents of the Govenmient of India (including all attached and subordi-na~ offices under -the Department c1f PCJ'$onnel. Commissioner for Linguistic Minorities, Allahabad. Institute. of Secretariat Training and Management, New Delhi. D.G.E. & T. l).Q., P & 'I,' and B~eau of Pubiie Enterprises. All Uni1>JJ1 Territory Govenunents/ Admini$tl'atloos. All regular sections of ~t of Pm:ooiiel.

No. 9/3/72-Estt.{D)

Dated the 22nd Iul.y, 1972.

Copy with 10 spare copies forwarded to the Secretary, Union Public Service Commission with reference to the UPSC's letter No. F.2/14/72-S.II dated 5th May, 1972.

HARISH CHANDRA

Under Secretary to the Government of India."

Each party before us relies upon the contents of· an office memo-randum as interpreted by tills Court in Ravi Varma's case (supra). The case of the respondents, however, is that this Court did not have before it for consideration, in Ravi Varma' s case {supra), the effect of rights which may have been acquired by Central Govt. servants, other than the petitioners then before the Court by reason of earli« confirmation and promotions whether rightly or wrongly made. It i• also urged that this Court was not then concerned with the correct-ness of the practical solution attempted by the memorandum of 1972, the validity of which is assailed by the petitioners before us now only on the ground that .it incorrectly interprets the judgment of this Court in Ravi Varma's case (supra) but not on the ground. that the Govt .. did not have the power to lary down the correct principle. for determinin: seniority by means of decision or rule contained in an office memo-D randum. The petitioners, however, contend that the result of the mis-interpretation by the office memorandum of 1972 of the decision of this Court in Ravi Varma's case (supra) is that the petitioners' right& under Article 16 of the Constitution are violated, whereas learned Counsel for the respondents denies any such violation of funda-mental right irrespective of wh~her his conter..tion, that the 1972 office memorandum correctly interprets judgment of this Court in Ravi Var1na's case, is accepted or not.

As this Court had, in Ravi Varma' s case (supra), set out the pro-visions of the memoranda of 22-6-1949 and' 22-12-1959 in extenso, it is not necessary for us to reproduce their contents. We will only indicate the conclusions which emerged from their consideratio1,1 ia Ravi Varma's case. This Court had, after pointing out that the prin-ciples contained in the office memorandum of 22-6-1949, although in-F tended originally to meet tlie situation created by the partition of India and the need to absorb the influx of large number of new Central Govt. servants, whose seniority had to be determined, were moro generally applied to all Central Govt. servants, proceeded to hold that the provisions of the memorandum of 1959 specifically stated that they were prospective and did not affect cases which were governed by the earlier office memorandum. The effect of the provisions of tho office memorandum of 22-12-1959 was held to be that the new prin-ciple "could not apply t0 the persons appointed to the various Central Services befot v. the date of that memorandum." It was also ob!!erved there that this Court had,· even in Marvyn Coutindo & Ors. v. Collec-tor of Customs, Bombay & Ors.,([1]) held that the new principle of_ aeniority, contained in memorandum of 22-12-1959, was not to apply retrospectively. In fact, the so called new. principle of 1959 was restoration of principle applied before the memorandum of 1949; inued to meet spec~al and. unprecedented situation created by the

(l) [1966) 3 S. C. R. 600.

1 S-Ll46Sup CI/75

int1m: of _large number of Government servants as result of tM partition of lndia. It may be observed here that the validity ()f the so called "new" principles of 1959 memorandUID is not assailed befiore. us on the ground that they, standini! by themselves, violate Article 16(1) of the Constitution. Ravi Vanna's case (supra) was decided on the asswnption ibat the whole memorandum of 19!!9 was valid but had been misinterpreted and misapplied.

We find, from paragraph 4 of the memorandum of 1972, that, with effect from 4-11-1972, when this Court pronounced judgment in Ravi Vanna's case (supra), the pre-19!!9 seniority of all pmom was restored, or, in other words, it was to be govci'ned by the l!~@ memorandum "irrespective of the fact or date of their confinna1ion and such peMons along with those appointed on regular basia to th~ grade prior to 22-12-1959, shall continue to remain en l•Joc senior to the persons appointed to that grade after 22-12-19!!9". Nevertheless, it is laid down there tbat this restoration of seniority will neither affect the confirmations alrea9y made in grade nor Jiro-motions made therefrom prior to 4-1-1972. Evidently, this was an !tempt to recognise and preserve the rights, if any, of those alre:ady confirmed or promoted before 4-1-1972 so that these arc not undcrne. The prospect, however of confirmation, after due consideration of their cases, was held out to Government serv:wts who were still not confirmed although their juniors had been so confirmed in gracb provided that such Government servants satisfied eligibility tests. Similarly, cases of those superseded by juniors in making promotions were to be considered afresh for promotion. Such consideration for conftrmation or promotion was, however made· to depend on the c:ds-ience of va:ca_ncies in the quotas for confirmation or promotion of Government servants.

It does appear to us that, in so far as memorandum of 1972 does not direct reconsideration of. cases of all those persons who ha-.o actually mis$ed confirmation or who were not considered at all for promotion at the time when they ousht to have been considered, it fails to give due and complete effect, as matter of general policy,. to "'·hat was decided by this Court in Ravi Varmtls case (supra). 'I'ho excuse put forward on behalf of the respondent is that rights said to be created by the actual facts of confirmations and promotiom in tho past cannot now be taken away by the respondents and that moro pcnons callI!ot be introduced in any grade thaQ. its sanctioned ~trength. It is true that the petitioners were not parties to the Jecisicmi in Ravi Varma's case (supra) so that they.cannot claim the benefit directly of any direction given in that case. It seems that it for this reason .that learned Counsel for the rec:xmdents attaches considerablo importance to delay in approaching thi; Court against alleged illega-litie~. We arc unable to commend the argument, coming as it does on behalf of Department of the State, that the effect of the decision of this Court in Ravi Vanna's case must be confined to parties before the Court in that case. We are, however, concerned here with the -i1eaning and affect of the Memorandum of 1972 which proceeds on

the correct footina that .the Central Excise ·Department waa .duty bound to give efiect ~o the law declared by this Court in Ravi Varma's case. But, we may point out here that mere failure to apply rule which oupt to have been applied may no!, by itself, justify an invo-cation of the powers. of this !Court under Article 32 of the Constitu-tion. In order to succeed ill petition under Article 32 of the Consti-tution f.!!e petitioner lias to disclose how his fundamental right has been infringed by particular rule or decision or its application. The impact of the rule or decision upon the facts of each petitioner's case has to be clearly brought out.In the cases before us, the fundamental ri&hts alleged to be vio-lated could o_nly be the general ones embraced by Article 16(1) of the Constitution which reads : "There shall be equality of opportunity for all citizens in .matte~ relating to employment or appointment to any office under the ·state". Where l!Ctitioner alleges that he has been denied equality of opportunity for. se"'ice, during the course of his employment as GovernmenJ servant, it is incumbent upon hini to di~lose not only the rule said to be infringed but also how this oppor-tunity was unjustifiably denied on each particular occasion. The. equality of opportunity in matter relating to employment implies equal treatment to persons similarly_ situlited or in the same category as the petitioner. it postulates e11uality of conditions under which number of persons belonging to the same cateaory compete for the same opportunities. and ~ust and impartial application\ of uniform and legally valid standards in deciding upon competing claims. It does not exclud~ justifiable discrimination. . ' It we examine. the -particular facts of the case of Amrit Lal Berry we find that there <me £IOunds for believing that such distinctions as were made in the matter of his confirmation and promotion as com-pared with those who joined service after him could ·have resulted from justifiable grounds of discrimination from the point of view of_ an application of Article 16(U of the Constitution. Thus, as already indicated above, aJthou_gh, it appears, on the face of it, unjust that the petitioner Amrit Lal Berry, who is B. A. and entered service on U-12-1948, should ~ confirmed ..:rom 1-7-19.5.5, but, Narinder Singh, who is only Matriculate and entered into service on 7-2-1949, should be !=onfirmed from 1-7-19.53 under orders of the Collector of Central Excise dated 5-5-19.56; yet, this difference is explained by tbe uncontroverted assertion, in paragraph 3 of the counter afildavit dated 10-10-73 of Shri N. Subramanian, Under Secretary, that tho petitioner did not pass the prescribed departmental examinatiott until November 19.54. It appears_ that, the petitioner Amrit Lal Berry was confirmed as soon as he could reasonably be confirmed on the occur-rence of vacancy in the permanent cadre after he had passed his examination, as required by rule 7 of tho Departmental Examination Rules, made applicable on 2.5-6-1949 to all existing oftlciating and temporary Government servants in the Central Excise Department. He could ~ot have, therefore, complained on that score. He has not H. shown that he was not treated as others in the same grade who had · not passed the prescribed examination before confirmation. Indeed, he has not even impleaded Narinder Singh as an opposite party. He

was confirmed as long ago as 1955. The real and only ground of Iris complaints seems to be that the imposition of test as conditioa precedent to confirmation has delayed his confirmation by two ycara. And, that was long beforo even the 1959 memorandum.

If the mason for the earlier confirmation of some persons, who obtained earlier promotions in the year 1970-71, is Justifiable ·on gtounds other than length of service, it is difficult to see how peti· tion.er in the position of Amrit Lal Berry could complain of any un· j111t treatme~t violative of Article 16(1) (If the Constitution. Ono cannot find, in the petition, any ground for his assertion that he could h11ve been confirmed or promoted. earlier than those who . enu~red service after him except that he entered service earlier. But to ac1:ept such Claim, built on bald and single ground, would be to O'Jet-look that confirmation, even acc~rding to the culP,S applicable in 1Sl49, depended also on conditions other than mere length of service. 1l'hi1 aspect of the case was not involved in Ravi Var1na's case (supra). At any rate, no party in that case seem.'i to have relied on 11ny rule or provision outside the two memoranda, one of 1949 and . another of 1959, considered there.

Another grievance of the petitioner Amrit Lal Berry was that he was not giv1m the senior grade of lnspec~N with effect from 2Jl-3-1961 but only from 8-12-1967. He attributes this result merely to hil wrong place in the seniority list due to his delayed confirmation. At the same time, he asserts that he crossed the Efficiency Bar on 1::'.-6- . 1968. If cro11Sing the Efficiency Bar was condition precedent to ,get-ting the senior grade be was giyen that grade earlier than 1968. It is not clear, either from the assertions made by the petitioner or in tho counter affidavits, whether crossing the Efficiency Bar was condi11ion precedent to entry into the senior grade or mere length of service wu enough for this purpoae. Neither -the office Memorandum of 1949 nor the petition of Amrit Lal Berry give's conditions of . entry into the ienior grade. It..wa.'I for the. petitioner to satisfy the Court that he wu not given the senior grade &though he satisfied all the required co1adi-tions of it ai~d that others, who were promoted into it, were gi\fen un-justifiable ptefel'llll.ce over him. It is difficult, on the assertions m.ade in the affidavits before u~, to see how the petitioner waa de11.ieC1 equality ot l[)pportunity in not being given the 1enior grade in· t 961 but only ill. 1967. ·

Even if we were to assume, as. the petitioner would like us to do, that disregard of seniority determined solely by length of service was the only reason for bis failure to get tbe senior grade in 1961, there is yet another hurdle bclore tho petitioner which wu not &hown to be present in Ravi Varma' s case (supra), and, therefore, not considered or adjudicated upon in that case. There, no objection based on delay in applying to the Court was taken persumably because it could not be taken. But, number of promotions having taken p!laoe between 1959 and the filing of. Amrit Lal Berry's- petition in 1971, those who Were so promoted and bad been satisfactorily discharging, for considerable periods before the filing of the petition, their dllttitc .· in higher wad~ yould acquire ne•11 claims and qualifications, bt

lapse of time aad due discharge of their new functions so that they could not, unless relief had been sought speedily against their allegedly illeaal confirmatiom and promotions, be equitable equated with tho pct"1oncr. 1. rn; lll.:quality in the equitable balance brought into bein& by petitioner"s own laches and acquiescence cannot be overlooked when considering claim to enforce the fundamental right to equal treatment To treat unequals equally would also violate that ri&ht. 8 Althouih, it may not be possible for the State or its agents to plead an estoppel ai:ainst claim to the fundamental right to equal treat-ment, vet, if petitioner has been so remiss or negligent as to approach the Court for relief after an inordinate and unexplained delay, he certainly jeopardises his claims as it may become inequitable; with circumstances altered by lapse of time and other facts, to enforce, fundamental right to the detriment of similar claims of inflocent third .persons.

Learned C.Ounsel for the opposite parties has relied on Rabindr11 Nath Bose&: Vrs. v. Union of India & Ors.(I) where, because rights of persons who had benefited from allegedly illegal seniority rule& for long time would be disturbed, this C.Ourt dismissed petitiOJt under Article 32 on the JUOUDd of inordinate delay in seeking relief. This Court said there (at p. 712) :-

"It is said that Art. 32 is itself auaranteed right. So it is, but it does not follow from this that it was the intention of tho Constitution makers that this C.Ourt should discard all principles and grant relief in petitions filed after inordi-nate delay. ·

n We are not aiWous to throw out petitions on this around, but we must administer justice in accordance with law and principles of equity, justice and good conscie11ce. It would be unjust to deprive the respondents of. the right which have acerued to them. Each person ought to be entitled to sit back and consider that this appointment· and promo-tion effected long time ago would not be set. aside after the lapse of number of years".

Learned C.Ounsel for the petitioners has relied upon observa-tions in recent decision of thi! C.Ourt in Ramchandra Shan/far D10· dhar &: Ors. v. the State of Maharashtra & Or.!'.,([2]) whtre after consi-dering eftl'lier cases It was observed (at p. 325-326) :

"There was delav of more than ten or twelve years in filinst the petition since the accrual of the cause of com-plaint, and this delay, contended the respondents, was sufli-cient to disentitle the petitioners to any relief in petition under Art. 32- of the Constitution. We do not think this contention sbould prevail with us. In the first place, it must be remembered that the rule which says that the C.Ourt may not inquire into belated and stale claims is not. rule of law, ·but rule of practice based on sound and proper (1) [197012 S.C.'R. 697. (2) [1974] 1 S.C.C, 317@ 325-26

exercise of discretion, and there is no inviolable rule that whenever there i& delay, the Cc>urt must nece=sarily refuse to entertain the petition. Bach case must depend on its own facts".

RabindrG1 Nath Bose's. case (supra) was distinguished here on the ground that no rights, legal or equitable, of third parties had ar:isen by lat>SC of time in tho case before the Court. Tho followin: princi-B ple la.id down in Tilokchand Motichand v. H. B. Munsh1([1]) was also affirmed :

"The party claiming fundamental rights must move the Court before other rights come into existence. Tho action of Courts cannot harm innocent parties if their rights emerge bv reason of dala.y on the part of the person moving the Court". -·

It is true that Amrit Lal Berry had amended his petition so a:; to make it appear that fresh cause o1 action accruetl in his favow· on 22-7-1972 when the office memorandum set out in full 11.bove wa.s il!llucd during the pendency of his Writ Petition, and the Writ Petition of K. N. Kapur and others purports to be directed against the office a.emorandum of 1972 consequential instructions. Nevertheless, when we examine the con.tents of that office memorandum and the substfmce et' tho petitions before us, it becomes abunda.ntly clear that what was ~ing really sought by the petitioners was setting aside of number of confirmations a.nd promotions which bad taken .place long before tho Writ Pe1itions were filed without even making necessary assertions to indicate precisely the occasions on. which allegedly tlleg&l confirma-tions and promotions took place and of which person or pernons Ha.ctly on each occasion. As we have pointed out 11.bove, at le&St those who had been promoted could, after lapse of number of year11 in their new posts, be regarded equitably as persons in :new and ileparate class.

It is true that the concerned Central Excise Department ol'licials would have kn.own the corre<:t legal pooition if they had cared to a1udy the decision of this Court in Mervyn Cautindo &: Ors. v. Collector of Customs, Bombay &: Ors. (supra) which was pronounced on 14-2-1966. There, this Court had pointed oot, inter-alia, that tho memo-Wldum of 1959 did not applv anv new princioles retrospectively. That was pifimarilv 'a caso on the validity of tho rotational system which was lllle2ed to bo struck by the principles of Articles 14 &nd 16 ( 1) of the Constitution. Even il' the opposite parties had millscd the simific!Dce of an observation in that case that the principles introduced by 1959 memorandum were not to be applied retrospc:cti-vclv on tho terms of that memor&ndum itself, yet, Govt. servants 11Jho OOllld benefit by thill observa.tion probably they have an otganisation to keep watch over &nd protect their interests--Ought to h&vo also realised the meaninr of thiS pronouncement long &J!:O. They could ban r&ised the auestion in Writ Petition in representative ce1pa-eity so that general order could have been obtained to govern all (I) (1969] 2 S~C.R. 824.

siailar cases. They need not have waited for the pronouncement of · the law by this Court on 4-1-1972 in Ravi· Vanna's case (supra). But. whatever may be the consequences to parties affected by slumber-ing over their rights, we think that the Central Excise Department Iltlit ~ presumed to know the law as declared by this Court in lJlervyn Coutindo's case (supra) in 1966. We find its lethargy in wait-mg until 1972 to make any attempt to rectify its errors far from com-B mCllldable.

The memorandum of 1972 contains set of instructions intended for carrying out the requirements of tho law declared by this ·Court in &vi Vanna's case (supra) on 4-1-1972 without disturbing such equitable rights as may have accrued to other Govt. servants by lipie of time. It is not suggested that this attempt was not boilafide one. It had resulted in tho conferment of such benefits from the declaration of the law in Ravi Vanna's case, as could, in the estima-lioo of the Central Excise Department, be reasonably reaped by the petitioners. It could only be understood in the context of fho past executive instructions and declarations of law by this Court.

It will bo noticed that Ravi Varmds case (supra) was decided on an appeal from decision of the High Court on Writ Petition under Article 226 of the Constitution. It was enough, for the purpose!> Of ct petition under Article 226, to show violation of an applicable nlle Qt seniority laid down in the relevant executive instructions. But, we have writ petitions under Article 32 of the Constitution before 1S for which violations of fundamental rights under Article 16 ( 1) of tho Constitution have to be aatisfactorily shown. Lcerned Counsel for the petitioner relial upon Union of India v. ·Va.rant Jayaram Karnik &: Ors:(t) to contend that violation of rule relating to seniority in 11 cadre or grade would be enough to base claim for "relief on the footing that he is denied equality of opportunity". In that ~. ·the selection for promotion was on the basis of "scniority-cum-merit". and it had been found that difl'erent standards had been qiptied in determining seniority of the petitioners before the High Court . cs compared with the seniority of opposite parties before that Court. Hence, the High Court had quashed the seniority list and it..c; deci-doft was upheld by this Court. Application of ~erent and unjusti-fiable standards for determining seniority did, therefore, establish dear violation of Article 16 of the Constitution in that case. In the oascc before us, this had not been demonstrated, although it may per-G haps flave been possible to show this if all the facts could have been .. set out clearly with instances in which and tho manner in which each petitioner had been wronldv superseded by contral'Ctling principle Domng from or Implied by Article 16 (1) of the Constitution. HOWCYCr, u wo have already found that the oetitions are a!so liabl¢ to be dismissed .on the ground that tho equitable ri~ts of numbcc of other C"10vcrnment servant~ had_ come into existence by the lachei ad ecqui08Cenccs of the petitioners, we need not proceed further to consider the question whether violation of the fundamental right (I) A.I.R. 1970 S.C. 2092.

of the J>=titionen by tho Central Excise Department wu really and ,July established here. On this view of the cases before us, it io ~ not necessary ror us to decide the question whe,her there 1s any d,~fect iD the petitiona before us due to 11 misjoinder either of causea of tc:tio::l or of petitioners. •

• Ii 111AJ be mentiontd here that an attempt was made by AIDlit LeJ Berry to aocount for delay in filing his petition. He said that he had made two departmental representations, one dated 6-3-1965 and another dated 13-8-1971, of which he filed copies, to which no replies had been received so far by him. It was denied by the Excise Depart-ment tha· h~ ever sent the first representation. It is evident that he hod mited for considerable period before making his representation ia 1965 even if we were to assume that he did make such reprc::sen-tation then. Furthermore, the copy of the alleged representatio:a of 1965 shows tl!at it was directed olily against the imposition of tee• by examina1fon before confirmation. We do not think, that, m•,rely by filing repeateij or delayed representations, petitioner can get om the obstacles which delay in approaching the Court creates because equitable rights of others have arisen. We may, however, observo that when citizen aggrieved by the action of Government Depat1-ment has approached the Court and obtained declaration of law m his favour, others, in like circumstanr.es, should be able to rely on tM ~ of rei:ponsibility of the Department concerned and to ci:pcct that they will be given the benefit of this declaration without the 11tfil to take their grievances to Court.

In the petition of K. N. Kapur & others, we do not even 11.ndl 1n assertion that any representation was made against any violation ()f petitioner's right. Hence, the rule recognised by this Court in Kamini Kumar Da:J Choudhury v. State of West Bengal d: Or.l'.([1]), that demand for justice and its refusal must precede the filin1~ of petition asking for direction or Writ of Mandamus, would also opo-rate against the petitioners.

It is submitted by the teamed Counsel for the Excise Depart111tnt that the rw grievance of the petitioner is that they have not been awarded consequential benefits such as promotions and arrears of salary as result s>f an alleged wron.g preparation of seniority list in 196 t . The memorandum of t 972 attempts to satisfv the grievance of the petitioners to the extent that it is reasonably possible, consis-tently with th~ equitable rights of other.!, that the principle of lenght of service laid down in the 1949 memorandum should govern tho cases of those appointed prior to 1959. We think that . the 1'972 memorandun) may be fairly interpreted to mean that; (a) the 1949 memorandum will aoolv to all cases covered by it till the 1959 memo-randum cam1.' into effect: <b) that those who were, in ~ood faith ;an(! 'in the re1nllar course. confirmed and/or promoted regularlv thoul(h bv an. honest mis-aoolication of the 1959 memorandum will not be disturbed eve:n if thev be junior to the claimants under the 1949 memorandum: (c) that in future, for vacancies and quotas, as earlier explained, those with longer service, as contemplated by the

(I) A. I. R. 1972 S.C. 2060@ 2065.

1_9419 memorandum, will be considered for confirmation and promo-tion: and ( d) tha., in the eubseauent career of those who stand ao . benefit by the 1959 memorandum, that factor will be reckon<:<! in · their t·!votir wlle.i rnrlti\!r opporarnitles for promotion arise, so that they may nr · suffer for . ever from the mis-construction of the memo-randum made· bv the Excise Department. It will be for the Depart-ment to consider what conseauential benefits can be &fven as result of reconsideration of case.

Lastly, it was m'&IXl that the fia!iOn of 4-1-1972 as the date after which all confirmations and promotions made would be revised in order to conform to tfie seniority determined by length of service of ·persons apoointed prior to 22-12-1959 was arbitrary. Rellince was tiaced UJ)Oll D. R. Nim v. Union of lndia,([8]) where date fixed for tlk 1 aoplication of particular rule was held to be arbitrary. In reply it was submitted that 4-1-1972 was the date on which this Court deliv.~red judgment in Ravi Varma's case (supra) making it finally clear :md definite to the Central Excise Department what the correct interprl'tation of memorandum of 1959 was, and; therefore, the dato had no1: been chosen altogether arbitrarily. perusal of the mem<>-randum of 1972 shows that the date 4-1-1972 was only chosen for giving th.e retrospective effect to whatever may be the actions taken on wrong view of the law after this date. In other words, it means that promotions and confirmations made after 4-1-1972 would, in any case, 'be reopenekl. The provisions of the memorandum, which are not Tiir,V clear as to what will happen in decisions taken before 4-1-1972 by the Excise Department, have been now interpreted by us so that thev mav be construed in manner consistent with tho apparent ob?ects of the memorandum. The result seems to be that the senioritv of all unconftrmed persons is to be determined in accordance with the law as declared by this Court on 4-1-1972; but, a~ rerrards per~ons who had already been bona fide wnfinned or promotekl bef·are 4-1-1972, no undoing of what had already heft done in their favour would be possible. Nevertheless, it was laid down there th,1t the cases of those who had failed to be either con-sidered for coufinnatioo or promotion merely because of the failure to poly the le111rth of service rule for detenninine seniority, wouW not suffer but will be reconsidered now subiect to existence of vacan-cies in the JZl'ade. for conftrmation, or in the promotion quota.

We are not auashin11 any part of the memorandum of 1972 aa wo .

do not so interpret it as to make it oossible for the Central Exciac Department to violate Article 16< 1) of the Constitution by resorting to it. We take ·its meanine: to be-and, so construed, it wm be Constitutional-that the declaration of Jaw by this Court on. 4-1-1972 '\'/ill affect alt cases in which the princioles of 1949 memorandUD -can still he annlierl desoite anv confirmations wronltlv made betwl'.CD 1959 and 4-1-1972. It appears to us that in cases of promotions wron2lv made between 1959 and 4-1-1972, the position, de!!pite the clarification attempted by us, is still left rather vague. A9 no

(I) (1967) 2 S.C.R. 325.

QUC!ltion of tile seniority of peoon actually promoted before 4-1-1972 u againat th.Gt d. n peraon promoted after 4-1-1972 :is before ua. on the footing that both bolong to tho cl.ass of promot.ec:s 11hooc ceniority. inter ie. ahould ho detemlincd by the total lengtl11s al their aerncea. wo refrain from pronouncing upon auch questioru1. We hOllC that just lllki reasonable rules for dctcnnining such que1:-tions of acniority, on principle of length of lleni.cc combined· wiU1 cerit. will ho evolved by the Excise Department itself to prevemtt aomolainta of iniusticc end future litiption. · It is for the Centr2~ Exciso Dcpart1nent itself to make appropriate rulea. It is only Wh~~ such rules vioL1te or have been so used as to violate The fundamenull rights of any group of persons employed by the State that this Court can interfere, In such c_ruies, we see no objection to the filing c.11'. mit petitions in representative capacitiei by a&grieved persons aft•er t:llin2 necessaiiY 11teps under Order· 1. rule 8, Civil Procedure Codi:, tho application of which to proceedings under either Article 2~6 or 32 ~.the Constitution does not appear to us to be barred by any ptOYISlOn.

before

It ia difticult to understand why 11tatutory provisions, on th1: lince on which provisions have been made for superior services and rnleo under such provisiOI11 ere not made to ensure that nothini: es:cem iust considerations, such as merit tested by performance and integrity revealed by the service records .or other reasonable tests ai: well as length of service, can count in making 'confirmations or pro-· · motions. The petitioners have, however, fajled to establish that just and l'CllSOnable consider~tiom did not !Prevail in any particular ina-· t111cc brou2ht to our notic;e.

Co.asequently. n"e dilmie& these Writ Petiti.01U1, but, iu the circums-tances of these eases, parties will bear their own costs.

Petition.i dismissed.