TaxTMI 
TaxTMI 
1981 (12) TMI 170
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 widening 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 persons 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 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 date of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nced 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 drawn upon the senior and experienced persons already working in other government officers 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 tot he Controller of Rationing, Bombay and instruct the persons concerned to report for duty of 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 tot he scale of Rs. 200-10-300 would be considered and that for the posts of Rationing Inspectors/ Senior In compliances with the directions contained in the said letter, a large number of personally from different departments of t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eased Government servant was holding the post of Clerk continuously form October 1, 1960 prior to his release, 'B' a merged Government servant \ was holding the post of Typist continuously form May 1, 1958. 'C' was appointed as a direct recruit to the post of Clerk in the Bombay Rationing Organisation on May 1, 1966 and was subsequently promoted as Senior Clerk on May 22, 1968. The seniority amongst them will be fixed as under ---------------------------------------------------------------------- Seniority Name Date of commencement Deemed dated of appointment rank of continuous service for fixation of as Clerk seniority ---------------------------------------------------------------------- 1 2 3 4 ---------------------------------------------------------------------- 1 `B' May 1, 1958 May 1, 1960 2 `A' October 1, 1960 October 1, 1962 3 `C' May 1, 1966 May 1, 1968 ---------------------------------------------------------------------- Provided that in the case of merged Government servant who was recruited to the post of Supply Inspector or Senior Clerk, by nominat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....-- Seniority Name Data of commencement of rank continuous service ---------------------------------------------------------------------- 1 2 3 ---------------------------------------------------------------------- 1. `A' February 24, 1966 2. `C' February 28, 1966 3. `B' March 15, 1966 ---------------------------------------------------------------------- (c) Seniority of Government servant in the cadre of Senior Clerks, Rationing Inspections and Deputy Accountants fixed on the basis of the rules in (a) and (b) above, shall be merged and refixed with reference to the date from which their seniority is determined according to the principles in 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 form May 4, 1963 and May 1, 1963 respectively. 'C' was a Clerk in the former Bombay Foodgrains Distribution Scheme from September 1, 1960. He was promo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ment Resolution, Agriculture and Cooperation Department, No. EST-1060/40002/SIV dated April 1, 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, Agriculture and Cooperation Department, No. EST-1060/40002/SIV dated April 1, 1963; (ii) those who were drawn in the Bombay Foodgrains Distribution Scheme from one and the same Government Office/Department shall take rank according to seniority inter se in the Officer/Department form which they were drawn Provided further were there is a clash of principles contained in the Government Resolution, Agriculture and Cooperation Department, No. EST-1060/40002/SIV dated April 1, 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 May 1,1 962 was drawn in Bombay Foodgrains Distribution Scheme on October 18, 1964 and was taken up as Inspecting Officer. `B' as Assistant in Revenue and Forests Departmen....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rks, Clerk-cum-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 then 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 Officers of the Heads of Departments who possessed not less then two years of service. 11. On May 28, 1971, a gradation list of Rationing Inspectors, Senior Clerks and Deputy Accountants working in the BRO as on April 1,1 968 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 test except in the case of those who had bee....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 1,1 971 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-S. P. 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 consequence that P. S. C. selected candidates who were already working in the various departments or officers prior to the said date were all to be treated as seniors in relation to the non-P. S. C. persons converted by the said Resolution. 14. 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 one a combined application of the seniority principles laid down by the BRO in the Rules dated March 22,1 968 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 s....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 1, 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....olly devoid of merit. 18. 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 17, 1975 were also quashed by the Learned Judge, and the 1st 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. 19. The preliminary objection on the ground of laches and delay, raised by the respondents before the High Court, was overruled 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rom other departments on the basis of their continuous service in the clerical cadre minus two years in 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 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 Article 14 and 16 of the Constitution. The second reasons 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 post in clerical cadre in other departments and the impugned Rules insofar as they provide for the fixation of inter se seniority of Rationing Inspectors/Seniority Clerks/Deputy Accountants in the BRO by giving credit to the service rendered by the 'released governments servants' in the clerical cadre in the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of Rule 4 and the proviso to Rule 7 of the impugned Government Resolution dated March 22, 1963 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 basis of such revised seniority gradation list was not called for. We are also of opinion that the High Court was wrong in overruling the preliminary objection raised before it by the present appellants that the writ petition insofar 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. 23. 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. It may be ass....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y. 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 Clerk/Deputy 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 whateve....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... such action was taken by them ad 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 Controller of Rationing for alteration of their "deemed dates". Writ petitioners 11 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 the principles laid down in the Government Resolution dated November 22, 1968. 25. On March 1, 1974, the Government of Maharashtra passed a Resolution directing that non-P. S. C. persons who were employed in the ministerial posts, namely, Clerks, Typists, Clerk-cum-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 passed th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 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. 28. In Tilokchand and Motichand v. H. B. Munshi, 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 provisions 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 can however find no merit in the contention that because there is an invasion of a fundamental right of a citizen the can be allowed to come to this Court, no matter how long after the infraction of his right he applies for relief. The Constitution is silent on this point, nor in there any statute of limitation expressly applicable, but n....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the Constitution. [SCC p. 132, para 66]. To the same effect are the following observations of Sikri, J. in his separate judgment in the same case A delay of 12 years of 6 years would make a strange bed-follow 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. convinces me that the underlying idea of the Constitution was to provide an expeditious and authoritative remedy against the inroads of the State. If a claim is barred under the Limitation Act, unless there 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 unreasonable delay. [SCC p. 118, para 18]. It is said that if this was the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....effected a long time ago would not be set aside after lapse of a number of years. [SCC p. 97, para 33]. The same position was reiterated by this Court in Malcom Lawrence Cecil D'Souza v. Union of India, and again in a very recent pronouncement of this Court in S. S. Moghe v. Union of India. We may usefully extract the following observations contained in paragraph 23 of the judgment of this Court in the last-mentioned case [SCC p. 292, para 23]. 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 those 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 a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ity and rank assigned to them in the provisional gradation list were in strict conformity with the principles laid down in the Government Resolution of 1968. Even thereafter, 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 principle 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 1, 1974 directing the regularisation of the temporary appointments of non-P. S. Cs. clerical personnel working in ministerial posts in the different governments 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 s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d 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, 1968 ought to have been rejected by the High Court on the ground of delay and laches and the writ petition insofar as it related to the prayer for quashing the said Government Resolution should have been dismissed. 31. 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 a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 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 deputationists [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 and 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 'rele....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y Inspector in the CFD. Further, in S. G. Jaisinghani v. Union of India, 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 difference between the two sources has a reasonable relation to the nature of the post to which the recruitment is made. In that case, this Court upheld the provision contained in 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 year of probation in Class I [Grade II [Service. 32. 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 [SCC p. 126, para 14]. There is no question in this case of any discrimination being made in a service after officers from two sources have been brought in one....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ts should be effected. The courts will interfere with such a decision unless it is shown to be arbitrary, unreasonable or unfair, and if not 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 year's regular service in other government departments, no arbitrary or unreasonable treatment was involved. 35. 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 re-fixed 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 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. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....being violative of Articles 14 and 16 of the Constitution. 37. 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 clause (a) of Rule 7 is to make the provisions of clauses (a) and (b) of Rule 4 in applicable to 'merged government servants' and to direct that the seniority of the 'merged government servants' should be determined only in accordance with the principles lid 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lerk 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 EX. A produced along with the counter-affidavit of the 1st 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, Ex. 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 ....