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PETITIONER: AMRIT LAL   BERRY

       Vs.

RESPONDENT: COLLECTOR OF CENTRAL EXCISE, NEW DELHI & ORS.

DATE OF JUDGMENT10/12/1974

BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH KRISHNAIYER, V.R. GOSWAMI, P.K.

CITATION:  1975 AIR  538            1975 SCR  (2) 960  1974 SCC  (4) 714  CITATOR INFO :  R          1976 SC 363  (13)  F          1977 SC1673  (10)  F          1980 SC 444  (2)

ACT: Constitution of India 1950-Arts. 14, 16, 32 and  226-Failure to apply a rule-Whether justified invoking powers under Art. 32-Petition  under  Art. 32 must contain averments  in  full Petitioner  to satisfy the Court how his  fundamental  right was infringed-Inordinate delay-Effect of-Distinction between a petition under Art. 32 and 226-Benefit of law declared  by the  Court  to  be given to  others  in  like  circumstances without  the need to go to Court Demand for justice and  its refusal must precede a petition for mandamus.

HEADNOTE: The Ministry of Home Affairs by a memorandum dated 22-6-1949 laid  down that the seniority of government servants  should be  determined by the date of their appointment and not  the date of their confirmation.  In the seniority list issued in 1958  by the Excise Department the appellant was  given  his due place.  The rule was altered in the Department by office memorandum   dated   22-12-1959  by  which   seniority   was determined  from the date of confirmation.  On 22-7-1972  an office  memorandum  was issued after the  judgment  of  this Court  in  Ravi  Varma’s case.  It  was  alleged  that  this memorandum  was based on a wrong interpretation of  the  law laid  down  by  this Court  because  while  determining  the seniority  of the petitioner according to the 1949 rule.  it did  not  award  consequential  benefits  to  which  he  was entitled   had   the   1949   memorandum   been    followed. Representations  to the Government impugning  the  seniority list having failed the petitioner has filed a petition under article 32 of the Constitution. It  was  contended  on  behalf of  he  respondent  that  the petitions  were  barred  by the  principles  of  laches  and acquiescence.  and that the assertions in the petitions  did not  contain necessary averments to establish violations  of fundamental rights. Dismissing the petitions, HELD’.  (1)  The petitions rest on the assumption  that  all

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that  need  to  be  asserted  was  violation  of  some  rule contained  in an office memorandum.  There is no doubt  that the  office memorandum dated 22-7-1972 was issued in  conse- quence of the decision of this Court in Ravi Varma’s case to meet the situation created by it in the context of  previous office memorandum on the subject If the 1972 memorandum  had been correctly interpreted and applied the law laid down  by this Court. had been correctly applied there was no need  to proceed  further  with the consideration of  the  petitions. [965E-F] (2)(a)  A mere failure to apply a rule which ought  to  have been  applied may not, by itself, justify an  invocation  of the powers of this Court under art. 32 of the  Constitution. In  order  to  succeed in a petition under art.  32  of  the Constitution   the  petitioner  has  to  disclose  how   his fundamental right has been infringed by a particular rule or decision  or  its application.  The impact of  the  rule  or decision  upon  the facts of each  petitioner’s  fundamental right has to be clearly brought out. [971 B] (b)  Where  a  petitioner alleges that he  had  been  denied equality  of opportunity for service, during the course  of hi employment as a government servant, it is incumbent  upon him  to disclose not only the rule said to be infringed  but also  how this opportunity was unjustifiably denied on  each particular occasion. [971 C] (c)  The  equality  of opportunity in a matter  relating  to employment  implies  equal treatment  to  persons  similarly situated  or  in the same category as  the  petitioner.   It postulates  equality of conditions under which a  number  of persons belonging to the same category compete for the  same opportunities and a just and competing claims.  It does  not exclude   justifiable  discrimination.  [971  D]   competing claims.   It  does not exclude  justifiable  discrimination. [971 D]      961 (d) In so far as memorandum   of  1972 does not direct reconsideration  of   cases of’ all   those  persons who have actually  confirmation or who were   not considered at all for promotion  at the time when they ought to have been considered it fails  to give, due and complete effect to what was decided by this  Court in Ravi Varma’s case. [970 F] (e)  As regards the contention of the petitioner that he was not  senior a grade, neither the office memorandum  of  1949 nor the petitioner save conditions of entry into the  senior grade.  It was for the petitioner to satisfy the Court  that he was not given the senior grade although he satisfied  all the  required conditions and that others, who were  promoted into  it, were given unjustifiable preference over him.   It is  difficult to see how the petitioner was denied  equality of  opportunity in not being given the senior grade in  1961 but was given only in 1967. [972 F] (3)  The  inequality in the equitable balance  brought  into being  by a petitioner’s own laches and acquiescence  cannot be  overlooked  when  considering a  claim  to  enforce  the fundamental  right  to equal treatment.  To  treat  unequals equally would also violate that right.  Although it may  not be possible for the State or its agents to plead an estoppel against a claim to the fundamental right to equal treatment, yet,  if a petitioner has been so remiss or negligent as  to approach  the  Court  for relief  after  an  inordinate  and unexplained delay, he certainly jeopardises his claims as it may become inequitable, with circumstances altered by  lapse of  time and other facts, to enforce a fundamental right  to the detriment of similar claims of innocent third  ’persons. [973 B]

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Rabindra Nath Bose & Ors. v. Union of India & Ors. [1970]  2 S.C.R  697 and Ramachandra Shankar Deodhar and Ors.  v.  The State of Maharashtra and Ors., [1974] S.C.R. 317 @  325-326, referred to. (4)  Ravi  Varma’s  case  was decided on an  appeal  from  a decision  of the High Court in Writ Petition under Art.  226 of  the Constitution.  It was enough, for the purposes of  a petition under Art. 226 to show a violation of an applicable rule  of  seniority  laid down  in  the  relevant  executive instructions.   But  in  a petition under  Art.  32  of  the Constitution  violations  of fundamental rights  under  Art. 16)1)  of the Constitution have to be satisfactorily  shown. [975 D] Union of India v. Vasant Jayaram Karnik & Ors.  A.I.R.  1970 SC 2092 distinguished. (5)  (a)    Merely   by   filing   repeated    or    delayed representations, a petitioner cannot get over the  obstacles which,  delay  in  approaching the  Court  creates,  because equitable rights of others may have arisen.  When a  citizen aggrieved  by  the  action of a  government  department  has approached  the Court and obtained a declaration of  law  in his favour, others, in like circumstances, should be able to rely  on  the  sense of  responsibility  of  the  department concerned and to expect that they will be given the  benefit of   this  declaration  without  the  need  to  take   their grievances to Court. [976 D] (b)  A  demand for justice and its refusal must precede  the filing  of  a  petition  asking for  direction  or  writ  of mandamus. [976 E] Kamini Kumar Das Choudhury v. State of West Bengal and  Ors. AIR 1972 SC 2060 @ 2065, referred to. (6)  (a)  The 1972 memorandum may fairly be  interpreted  to mean  that (a) the 1949 memorandum will apply to  all  cases covered by it till the 1959 memorandum came into effect  (b) that those who are in good faith and in the regular  course, confirmed  and/or promoted regularly, though, by  an  honest misapplication of the 1959 memorandum will not be  disturbed even  if  they  be junior to the claimants  under  the  1949 memorandum;  (c) that in future, for vacancies  and  quotas, those  with  longer  service, as contemplated  by  the  1949 memorandum,   will  be  considered  for   confirmation   and promotion:  and (d) that in the subsequent career  of  those who  stand  to benefit by the 1959 memorandum,  that  factor will be reckoned in their favour when further  opportunities for  promotion arise, so that they may not suffer  for  ever from  the  mis-construction of the memorandum  made  by  the Excise Department. [976 G-H; 977 A] 962 (b)  The  seniority  of  all unconfirmed persons  is  to  be determined  in accordance with the law as declared by this Court  on 4-1-1972, but, as regards persons who had  already been  bona fide confirmed or promoted before  4-1-1972,  ’no undoing of what had already been done in their favour  would be possible.  Nevertheless, it was laid down there that  the cases  of those who had failed to be either  considered  for confirmation  or promotion merely because of the failure  to apply the length of service ’rule for determining  seniority would  not  suffer but will be reconsidered now  subject  to existence of vacancies in the grade for confirmation, or ’in the promotion quota. [977 F] In the instant case, the petitioner in writ petition No. 463 of 1971 did not paw the prescribed departmental  examination until November, 1954.  He was confirmed as soon as he  could reasonably  be considered on the occurrence of  the  vacancy after  he  passed his examination.  If the reasons  for  the

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earlier  confirmation of some persons who  obtained  earlier promotions in the year 1971, are justiable on grounds  other than  length  of  service, it is difficult to  see  how  the petitioner could complain of any unjust treatment  violative of  Art. 16(1) of the Constitution.  A number of  promotions having  taken  place  between 1959 and  the  filing  of  the petition  in  1971; and those who were so promoted  and  had been  satisfactorily discharging, for considerable  periods, before the filing of the petition. their duties in a  higher grade would acquire new claims and qualification by lapse of time  and due discharge of their new functions so that  they could  not, unless relief has been sought  speadily  against their  allegedly  illegal  confirmation  and  promotions  be equitably equated with the petitioner. [972 H; 973 A]

JUDGMENT: ORIGINAL  JURISDICTION : Writ Petitions Nos. 463 of  1971  & 2004 of   1973. Petitions under Art. 32 of the Constitution of India. DP.   L.  Singhvi, S. K. Mehta and M.  Qamaruddin,  for  the petitioners (In W.P. No. 463/71.) S.   K.  Mehta  and M. Qamaruddin, for the  petitioners  (In W.P. No. 2004/73) M.   N.  Phadke and M. N. Shroff, for respondents  (In  W.P. No. 463/71) and respondents Nos. 1--4 (In W.P. No. 2004/73) The Judgment of the Court was delivered by BEG, J.-Amrit Lal Berry in Writ Petition No. 463 of 1971 and K.  N. Kapur & 14 others in Writ Petition No. 2004  of  1973 have  applied  to  this  Court  under  Article  32  of   the Constitution  of  India.   They  complain  of  violation  of Article 16 of the Constitution on the ground that they  were illegally discriminated against by the respondents  inasmuch as they were not confirmed and then promoted when they ought to have been.  They assert that if, according to the  appli- cable  rule, they had been assigned their correct places  in the  seniority lists, as laid down in the Office  Memorandum dated  22-6-1949, prepared by the Ministry of Home  Affairs, they  would  have  been duly promoted.   Each  of  them,  on similar facts, relies upon the law laid down by this  Court, in Union of India v. M. Ravi Varma & Ors. etc.(1) Assertions id the petition of Amrit Lal Berry illustrate the nature  of the  cases  of all the petitioners.  We  will  indicate  the cases, of the parties before we take up the questions of law arising for consideration and decision by us here. Amrit  Lal  Berry  was appointed Inspector  in  the  Central Excise  Collectorate at Delhi, by orders  dated  22-11-1948, and,  on 4-12-1948, was posted at Forozepur.  On  22-6-1949, the Ministry of Homo (1)  [1972] 2 S.C.R. 992. 963 Affairs.  issued a Memorandum containing the principle  that the,   seniority  of existing  Govt.  servants   will   be determined by the date of their appointment and not from the date of their confirmation.  The petitioner asserts that, in accordance  with this principle, he was  correctly  assigned his  seniority  in  the  list  issued  in  1958  after   the petitioner’had  been confirmed in a permanent post under  an order dated 5-5-1956 with effect from 1-7-1955.  An  extract from  the order shows that,. although, the petitioner  is  a B.A.  and  shown as appointed on 15-12-1948,  and;  Narinder Singh,  the  Inspector next in order of seniority,  who  was only a Matriculate, appointed subsequently on 7-2-1949,  was confirmed retrospectively with effect from 1-7-1953, that is

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to  say, two years earlier than the petitioner.   There  is, however, a difference in age shown between the two  inasmuch as the date of birth of the petitioner is given as  5-4-1925 whereas that of Narinder Singh is shown as 24-7-1911.   The petitioner points out that, despite these different dates of confirmation  of Inspectors, so that juniors were  sometimes confirmed  earlier  ,  they retained  their  seniorities  in accordance  with  the Office Memorandum of  22-6-1949  which made  the length of service the only material  consideration for purposes of seniority.  But, after the Office Memorandum dated 22-12-1959, the rule applied was altered in the Excise Department.   New  seniority lists were  prepared  in  which seniorities were determined from the dates of  confirmation. The  result was that Government servants, who ought to  have been placed below the petitioner have been, it, is asserted, promoted  as Superintendents of Central Excise in the  years 1970 to 1971.  The petitioner gave a list of twelve  juniors who  have  been so promoted because, according to  him,  the impugned seniority list of 1-7-1967 illegally put them above the petitioner.  The petitioner also complained that,  owing to the illegally prepared seniority list, he had been  given the  grade of a Senior Inspector only on 8-12-1967  and  not with  effect from 21-3-1961 as it ought to have  been  done. The   petitioner   complains  of   the   allegedly   illegal confirmation.  going  as  far  back  as  1955,  and  illegal seniority  lists prepared after 22-11-1959.  He has  annexed copies of representations dated 6-3-1965, and, 13-8-1971, to which,  according  to  him,  no  replies  were  given.   The petitioner,  therefore,  came to this Court  seeking  relief against  what  he  describes as  the  impugned  list  which, according  to paragraph 8 of his petition is dated  1-7-1967 (Annexure  7  to  his petition), and  to  allegedly  illegal promotion of juniors without setting out the names or  dates of  promotions of all those so promoted.  Presumably,  these promoted   Inspectors  are  the  77  persons  impleaded   as respondents  5  to  81 in the petition before  us.   Out  of these,  only twelve, with their places shown as  lower  than the  petitioner’s  number 204 in the  list  prepared  before 1959.  were specifically mentioned in the list of  allegedly illegal promotions of’ 1970-71.  Amrit Lal Berry’s  petition to this Court was filed on 9-12-1971. By an application dated 9-3-1973, Amrit Lal Berry sought  an amendment  of his Writ Petition asking this Court  to  quash the Office Memorandum dated 22-7-1972 on the ground that  it does  not interpret correctly the judgment of this Court  in Ravi Varma’s case (supra) 964 delivered on 4-1-1972.  The, petitioner contends that office Memorandum,   dated   22-7-1972   was  baud   on   a   wrong interpretation  of the law laid down by this Court  inasmuch as,  while  determining  the  seniority  of  the  petitioner according to the 1949 rule, it does not award consequential benefits  which would have been reaped by the petitioner  in the  past,  if  the seniority rule, laid down  in  the  1949 memorandum, had been followed in the past. K.   N.  Kapur  and 14 others also give the dates  of  their appointments  as  Inspectors ranging from 15-5-1944  in  the case of K. N. Kapur to 19-1-1950 in the case of Ravinderlal. The dates of confirmation vary from 1-7-1956, in the case of K. N. Kapur, to 1-12-1962, in the case of S. L. Chopra.  The dates of their entry into the senior grade also extend  from 29-3-1965, in the case of M. S. Ahluwalia, to 22-11-1971, in the  cases of P. L. Sharma and R. L. Kapania.  Columns in  a list given in the Writ Petition, showing the serial  numbers accor ding to the seniority list prior to 22-12-1959 and the

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subsequent  seniority  list  of 1961,  show  wide  gaps  the biggest of which is in the case of K. N. Kapur who came down from  his  place at No. 32 to No. 252.  The  seniority  list complained  of was, however, stated to be, the one  prepared in  1961.   All the petitioners assert  that  the  seniority lists of 1958 to 1959 were correctly prepared in  accordance with   the  Office  Memorandum  of  22-6-1949.   The   whole mischief,  according  to  the  petitioners,  resulted   from misplacing  of the names of the petitioners, after the  1959 memorandum, in the seniority list of 1961, which ignored the correct  or  applicable  principle for  preparation  of  the senio rity lists according to the memorandum of 1949. The Writ Petition of K. N. Kapur and 14 others dated  20-10- 1973  was  filed  on 22-10-1973.  In this  petition,  it  is asserted  that the office memorandum dated 22-7-1972  issued by  the  Ministry  of  Home Affairs  (Annexure  ’D’  to  the petition)  and  the Office memoranda,  dated  16-3-1973  and 17-3-1973,  issued by the Ministry of Finance,  are  illegal inasmuch as they do not properly give effect to the decision of this Court in Ravi Varma’s case (supra).  The petitioners asked for the quashing of office memorandum dated  22-7-1972 prepared  by  the Ministry of Home Affairs  and  the  office memoranda  dated 16-3-1973 and 17-3  1973 prepared  in  the Ministry  of Finance.  The further relief asked for is  that this  Court may direct the Collector of Central  Excise  and the  Union of India to implement the decision of this  Court given  on 4-1-1972 in Ravi Varma’s case (supra) so that  the office  memorandum  dated  22-6-1949  and  not  the   office memorandum  dated  22-12-1959 may govern the  cases  of  the petitioners.   They  also claim the award  of  all  benefits consequential to the correct preparation of seniority lists, such. as confirmations, promotions, and payments of  amounts which should have been made in the past. The petitions were opposed on various grounds.  The  alleged violation of the law by the memoranda of 1972 and 1973 were, it was submitted, only attempts made by the opposite parties to  adjust  the  operations of two  opposing  principles  of justice  and  law laid down by this Court  :  the  seniority according to length of service rule of 1949 and what may  be called the principle of non-disturbance of rights                             965 claimed due to confirmations or promotions to a higher  post going  far  back.  It was submitted that there had  been  no infringement  of  any  right or provision  of  law  at  all. Alternatively,  it was urged that,’ even if the  petitioners could  make  out violation of any applicable  rules  of  law regulating  the conditions of  service of  the  petitioners, they do not establish the denial of any fundamental right of the  petitioners Constitution.  In any event, the  petitions are  said  to  be barred by the  principles  of  laches  and acquiescence.  It was also suggested by the learned  Counsel for the opposite parties, particularly in the case of K.  N. Kapur  &  Ors., that the cause of action  asserted  by  each alleged  infringement  of  a right being  separate  on  each occasion  it should have been made the subject matter  of  a distinct  and  separate petition  assailing  the  particular alleged infringement on each occasion.  In the case of K. N. Kapur & others, the contention appeared to be that there was not  only  a ’misjoinder of causes of action but also  of  a number  of petitioners each of whom could only have a  sepa- rate  cause  of action whenever any alleged violation  of  a fundamental  right took place.  It was also  submitted  that the assertions in the applications did not contain necessary averments  to establish violations of fundamental rights  so that  petitions under Article 32 of the Constitution  should

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be dismissed in Iimine on this ground alone.  It was pointed out that the petition of K. N. Kapur and others did not even disclose  a  demand  made  to the  opposite  parties  to  do justice, followed by its refusal by the opposite parties, so that  a  condition  precedent  to the issue  of  a  Writ  of Mandamus was also wanting here. It is true that assertions in each of the two petitions  are of a very general character.  The petitions seem to rest  on the  assumption  that  all  that need  be  asserted  is  the violation  of some rule contained in an,  office  memorandum which  governed the rights of the petitioners in the,  past. There is no doubt that. the office memorandum of  22-7-1972’ was issued, ’in consequence of the decision of this Court in Ravi’  Varma’s  case  (supra) dated 4-1-1972,  to  meet  the situation  created by it in the context of  previous  office memoranda on the subject.  If the 1972 memorandum  correctly interprets and applies the law laid down by this Court there would  be no need to proceed further with the  consideration of  the petitions before us.  This memorandum itself’  gives the  history of previous relevant office memoranda  and  the need’ for their displacement by new instructions due to  the decision  of this Court in Ravi Varma’s case.  It  reads  as follows               "No. 9/3-/72-Estt. (D)               Government of India               Cabinet Secretariat,               Department of Personnel,               New Delhi, dated the 22nd July, 1972.                             OFFICE MEMORANDUM               SUBJECT  :-Supreme  Court-Civil  Appeals  Nos.               1845  of  1968, 1846 of 1968 and 50  of  1969-               Interpretation  of Ministry of’  Home  Affairs               O.M.   No.  9/11/55-RPS.,  dated   12-12-1959.               regarding  general principles for  determining               seniority  of’ various categories  of  persons               employed in Central Services- 966 As the Ministry of Finance etc. are aware, under the  orders contained  in  Ministry of Home Affairs O.M.  No.  30/44/48- Apptts.,  dated  22-6-1949, (copy enclosed as  annexure  1), seniority  in  a grade was to be determined,  as  a  general rule,  oil  the  basis of the total  length of  continuous service  in the grade, as well as service in  an  equivalent ,grade,  the  term "Service in an  equivalent  grade"  being defined as service on a rate of pay higher than the  minimum of  the time-scale of the grade concerned,  irrespective  of whether  it  was  rendered  in  the  Central  or  Provincial Government  in  India  or Pakistan.   Seniority  of  persons appointed  on a permanent or quasi-permanent basis prior  to the  1st  January, 1944 was, however, not disturbed  by  the office memorandum of 22-6-1949.  The instructions  contained in that O.M. were issued in order to safeguard the interests of  displaced  Government  servants appointed  to  Central Services  after  partition, but as it was  not  possible  to regulate the seniority of only displaced Government servants by   :giving   them  credit  for   previous   service,   the instructions  of  22-6-1949  referred  to  above  were  made applicable  to other categories of persons also a  appointed to   Central   Services.   There  were,   however,   certain services/posts which were exempted from the operation of the O.M.  ,of  22-6-1949.   In the  course  of  time,  displaced Government servants had, by and large, been absorbed in  the various  Central  Services and their  seniority  fixed  with reference  to  the length of service rendered  by  them,  as provided in the O.M. of 22-6-1949.  It was, therefore,  felt

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that it was no longer necessary to apply the instructions of 22-6-1949  in  preference  to  the  normal  principles   for determination of seniority.  As a result, revised principles of seniority were issued in December, 1959, in consultation- with  the Union Public Service Commission, vide Ministry  of Home Affairs O.M. No. 91/11/55-RPS, dated 22-12-1959 (.copy. enclosed as annexure 11), which is still in force. 2.   As  would  be  seen from para 2 and 3 of  the  O.M.  of 22-12-1959 mentioned above, except as otherwise provided  in that  O.M. or except for such services and posts  for  which separate  principles  of had already been  issued  or  which might  be  issued thereafter, the seniority of  all  persons appointed to the various Central services after the date  of that  O.M.  (viz.  22-12-1959)  was  to  be  determined   in accordance   with  the  general,  principles  of   seniority contained  in  the annexure to that O.M. and  those  general principles  were  not to apply  with  retrospective  effect. According  to para 2 of the annexures to that O.M.,  persons appointed  in  a substantive or officiating  capacity  to  a grade  prior  to  the issue of  the  general  principles  of seniority  shall  retain their  relative  seniority  already assigned  to  them, or such seniority as may  thereafter  be assigned  to  them under the existing orders  applicable  to their  cases  and shall en bloc be senior to all  others  in that  grade.  However, para 3 of the annexure provides  that permanent  officers of each grade shall be ranked senior  to persons who Ire officiating in that grade. 3.   Keeping   in  view  the  objectives  of   the   revised instructions  contained  in  the  O.M.  of  22-12-1959,  the Ministry of Home Affairs (now department of personnel)  have all along held that while persons appointed prior to  22-12- 1959  will  retain their relative  seniority  already  fixed under the then existing orders, with effect from 22-12-1959, 967 permanent employees of a grade, including those confirmed in that grade prior to 22-12-1959, will rank en bloc senior  to non-permanent employees of that grade,, irrespective of  the fact whether such non-permanent employees were appointed  to the   grade  before,  on,  or  after  22-12-1959.    Amongst permanent  employees confirmed in the grade prior to  22-12- 1959,  their relative seniority already fixed  according  to the  then existing orders would be maintained and they  will rank  senior to those confirmed in that grade  after  22-12- 1959.    Amongst  those  confirmed  after  22-12-1959,   the relative  seniority  will  be  according  to  the  order  of confirmation.  Similarly, amongst non-permanent employees of a grade, the relative seniority of those appointed prior  to 22-12-1959 will be on the basis of the then existing orders, but they will rank on bloc senior to those appointed to that grade,’  after  22-12-1959,  but not yet  confirmed  in  the grade. 4.   This matter, however, came up for consideration  before the  Supreme  Court in Civil Appeals (1) No.  1845  of  1968 (Union of India and others Versus M. Ravi Varma and others), (2)  No. 1846 of 1968 (Union of India and others  Versus  S. Ganapati  Kini and others) and (3) No. 50 of 1969 (Union  of India  and others Versus Suresh Kumar and others).   In  its judgment, dated 4-1-1972 (copy annexure 111) in these cases, the court has not agreed with the view taken by the Ministry of  Home  Affairs  (now Department  of  Personnel)  in  this matter,  as  ’outlined  in para 3 above.   The  court  while dismissing  the  three  appeals has  held  that,  except  in certain cases (with which the Court were not concerned), the general  principles embodied in the annexure to the O.M.  of 22-12-1959  did not have retrospective effect and could  not

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apply  to persons appointed to the various Central  Services before that date.  As a result of the judgment, the question whether, and if so, to what extent the seniority of  persons appointed on a regular basis prior to 22-12-1959, which 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. 31/223/50DGS dated the 27th April, 1951, or No. 9/58/56-RPS dated the 4th August, 1956, but which had subsequently been revised according to the view taken in the matter  vide  para 3 above, should be revised  further,  has been examined in consultation with the Union Public  Service Commission.  and it has been decided that in  services/posts under the Central Government to which the general principles for determining seniority contained in the office memorandum of 22-12-1959 apply, seniority of such persons should,  with effect  front 4th January 1972 (the date of the judgment  of the Supreme Court) be restored as it stood on 21-12-1959  in the  grade  concerned, irrespective of the fact or  date  of their  confirmation  and  such  persons  along  with   those appointed  on a regular basis to the grade prior  to  22-12- 1959, shall continue to remain en bloc senior to the persons appointed  to that grade after 22-12-1959.  The revision  of seniority  in  such  cases will  not,  however,  affect  the confirmations  already  made  in  the  grade  prior  to  4th January, 1972 or regular promotions therefrom prior to  that date.  Confirmations  promotions  made  on  or  after   4th, January,  1972 shall be reviewed, Wherever necessary in  the light of the above decision.  If any person whose  seniority is now revised according to these orders 968 is  still not confirmed, though a person junior to  him  has been  confirmed, he may also now be considered,  subject  to availability  of  permanent  vacancies  in  the  grade,  for confirmation  in the grade, if he is otherwise eligible  for the  same  and is suitable for it.  Similarly, if  a  person whose  seniority is ?tow revised under these orders was  not considered  for promotion prior to 4-1-1972 for want of  the requisite  seniority,  he may also be  considered  for  such promotion   subject  to  availability  of  promotion   quota vacancies  in the higher grade, if he is otherwise  eligible for  the same.  However, on promotion to the  higher  grade, the  seniority  of such persons among the promotees  in  the higher grade would be regulated in accordance with para 5 of the  general  principles  of  seniority  contained  in   the annexure  to Ministry of Home Affairs’ office memorandum  of 22-12-1959. 5.   In  this connection it may also be mentioned  that  the general  principles  of seniority contained in  annexure  to Ministry of Home Affairs O.M. dated 22-12-1959 were  applied to some service/posts from a date subsequent to  22-12-1959. Such a course was permissible, vide para 3 of the O.M. dated 22-12-1959 referred to above.  If, in those  services/posts, seniority was actually continued to be determined beyond 22- 12-1959  in  accordance with the instructions laid  down  in Ministry  of Home Affairs’ O.M. of 22-6-1949,  seniority  of the employees in the service/posts concerned might have been revised  from the date from which the general principles  of seniority  contained in the annexure to the O.M.  of  22-12- 1959 were adopted in respect of those services./posts on the basis of the interpretation of the Ministry of Home  Affairs (now  department  of Personnel) given in para 3  above.   In such  cases  also, the principle laid down  by  the  Supreme Court  would  apply,  viz. that  the  seniority  of  persons appointed  to the services/posts referred to above prior  to the  date of application of the principles contained in  the

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O.M.  of  12-12-1959, would continue to be governed  by  the rules/orders  in force before such application.   Hence  the action  Suggested in para 4 above would apply pari passu  to those cases as well. 6.   Ministry  of Finance etc. are requested to take  action accordingly in respect of Government employees serving in or under that Ministry.               HARISH CHANDRA               Under Secretary to the Government of India.               To               All  Ministries  with usual  number  of  spare               copies.   Departments  of  the  Government  of               India (including all attached and  subordinate               offices under the Department of Personnel.               Commissioner   for   Linguistic    Minorities,               Allahabad.               Institute   of   Secretariat   Training    and               Management, New Delhi.               D.G.E. &’I’.  D.G., P & T and Bureau of Public               Enterprises.               All              Union               Territory               Governments/Administrations.               All   regular   sections  of   Department   of               Personnel.               969               No.  9/3/72- Estt. (D)        Dated  the  22nd               July, 1972.               Copy  with  10 spare copies forwarded  to  the               Secretary,  Union  Public  Service  Commission               with   reference  to  the  UPSCs  letter   No.               F.2/14/72-S.11 dated 5th May, 1972.               HARISH CHANDRA               Under Secretary to the Government of India." Each  party before us relies upon the contents of an  office memorandum as interpreted by this Court in Ravi Varma’s case (supra).  The case of the respondents, however. is that this Court  did  not have before it for  consideration,  in  Ravi Varma’s  case (supra), the effect of rights which  may  have been  acquired  by Central Govt. servants,  other  than  the petitioners  then  before  the Court by  reason  of  earlier confirmation and promotions whether rightly or wrongly made. It is also urged that this Court was not then concerned with the  correctness of the practical solution attempted by  the memorandum of 1972, the validity of which is assailed by the Petitioners  before  us  now  only on  the  ground  that  it incorrectly  interprets the judgment of this Court  in  Ravi Varma’s  case (supra) but not on the ground that the  Govt.. did not have the power to lay down the correct principle for determining  seniority  by  means  of  a  decision  or  rule contained   in  an  office  memorandum.   The   petitioners, however, contend that the result of the misinterpretation by the office memorandum of 1972 of the decision of this  Court in Ravi Varma’s case (supra) is that the petitioners" rights under  Article 16 of the Constitution are violated,  whereas learned   Counsel  for  the  respondents  denies  any   such violation of a fundamental right irrespective of whether his contention,  that  the  1972  office  memorandum   correctly interprets  judgment of this Court in Ravi Varma’s  case  is accepted or not. As this Court had, in Ravi Varma’s case (supra), set out the pro-visions of the memoranda of 22-6-1949 and 22-12-1959  in extenso,  it  is  not necessary for us  to  reproduce  their contents.   We  will  only indicate  the  conclusions  which emerged  from  their consideration irk  Ravi  Varma’s  case. This  Court  had,  after pointing out  that  the  principles

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contained  in the office memorandum of  22-6-1949,  although intended  originally  to meet the situation created  by  the partition  of India and the need to absorb the influx  of  a large number of new Central Govt. servants, whose  seniority had  to  be determined, were more generally applied  to  all Central   Govt.  servants,  proceeded  to  hold   that   the provisions  of  the memorandum of 1959  specifically  stated that  they were prospective and did not affect  cases  which were governed by the earlier office memorandum.  The  effect of the provisions of the office memorandum of 22-12-1959 was held  to be that the new principle "could not apply  to  the persons appointed to the various Central Services before the date  of that memorandum." It was also observed  there  that this Court had, even in Marvyn Coutindo & Ors. v.  Collector of Customs, Bombay & Ors.,(1) held that the new principle of seniority, contained in memorandum of 22-12-1959, was not to apply retrospectively.  In fact, the so called new principle of 1959 was a restoration of a principle applied before  the memorandum   of  1949  ’  issued  to  meet  a  special   and unprecedented situation created by the (1) [1966] 3 S. C. R. 600. -L346Sup CI/75 970 influx of a_large number of Government servants as a  result of the partition of India.  It may be observed here that the validity   of  the  so  called  "new"  principles  of   1959 memorandum  is  not assailed before us on  the  ground  that they,  standing by themselves, violate Article 16)1) of  the Constitution.   Ravi Varmas case (supra) was decided on  the assumption  that the whole memorandum of 1959 was valid  but bad been misinterpreted and misapplied. We find, from paragraph 4 of the, memorandum of 1972,  that, with  effect  from  4-11-1972, when  this  Court  pronounced judgment  in  Ravi  Varma’s  case,  (supra),  the   pre-1959 seniority of all person was restored, or, in other words, it was  to be governed by the 1949 memorandum "irrespective  of the  fact  or date of their confirmation  and  such  persons along  with those appointed on a regular basis to the  grade prior to 22-12-1959, shall continue to remain en bloc senior to  the persons appointed to that grade  after  22-12-1959". Nevertheless, it is laid down there that this restoration of seniority will neither affect the confirmations already made in a grade nor promotions made therefrom prior to  4-1-1972. Evidently, this was an attempt to recognise and preserve the rights,  if  any,  of those already  confirmed  or  promoted before 4-1-1972 so that these are not undone.  The prospect, however  of confirmation, after due consideration  of  their cases,  was. held out to Government servants who were  still not  confirmed although their juniors had been so  confirmed in  a VS& provided that such Government  servants  satisfied eligibility  tests.  Similarly, cases of  those superseded by.  juniors  in  making promotions were  to  be  considered afresh  for promotion.  Such consideration for  confirmation or promotion was, however made to depend on the existence of vacancies,  in the quotas for confirmation or  promotion  of Government servants. It  does appear to us that, in so far as memorandum of  1972 does  not  direct  reconsideration of  cases  of  all  those persons  who have actually missed confirmation or  who  were not  considered at all for promotion at the time  when  they ought  to  have been considered, it fails to  give  due  and complete effect. as a matter of general policy, ID what  was decided  by_ this Court in Rovi Varma’s case  (supra).   The excuse  put  forward  on behalf of the  respondent  is  that rights   said  to  be  created  by  the  actual   facts   of

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confirmations and promotions in the past cannot now be taken away  by  the respondents and that more  persons  cannot  be introduced in any grade than its sanctioned strength.  It is true  that the petitioners were not parties to the  decision in  Ravi Varma’s case (supra) so that they cannot claim  the benefit  directly of any direction given in that  case.   It seems  that it for this reason that learned Counsel for  the respondents  attaches  considerable importance to  delay  in approaching this Court against alleged illegalities.  We are unable to commend the argument, coming as it does on  behalf of  a  Department  of  the State, that  the  effect  of  the decision of this Court in Ravi Varma’s case must be confined to parties before the Court in that case.  We are,  however, concerned here with the meaning and affect of the Memorandum of 1972 which proceeds on                             971 the  correct footing that the Central Excise Department  was duty bound to give effect to the law declared by this  Court in  Ravi  Varma’s case.  But, we may point out here  that  a mere  failure  to  apply a rule which  ought  to  have  been applied  may  not by itself, justify an  invocation  of  the powers  of this Court under Article 32 of the  Constitution. In  order to succeed in a petition under Article 32  of  the Constitution   the  petitioner  has  to  disclose  how   his fundamental  right has been infringed by a particular  rule, or  decision or its application.  The impact of the rule  or decision upon the facts of each petitioner’s case has to  be clearly brought out. In the cases before us, the fundamental rights alleged to be violated could only be the general ones embraced by  Article 16(1)  of  the Constitution which reads :  "There  shall  be equality of opportunity for all citizens in matters relating to  employment  or  appointment to  any  office  under  the, State".  Where a petitioner alleges that he has been  denied equality  of opportunity for service, during the  course  of his employment as a Government servant, it is incumbent upon him  to disclose not only the rule said to be infringed  but also  how this opportunity was unjustifiably denied on  each particular  occasion.   The  equality of  opportunity  in  a matter  relating  to employment implies equal  treatment  to persons  similarly situated or in the same category  as  the petitioner.   It  postulates equality  of  conditions  under which  a  number of persons belonging to the  same  category compete for the same opportunities and a just and  impartial application  of  uniform  and  legally  valid  standards  in deciding  upon  competing  claims.   It  does  not   exclude justifiable discrimination. If we examine the-particular facts of the case of Amrit  Lal Berry  we find that there were _grounds for  believing  that such  distinctions  as  were  made, in  the  matter  of  his confirmation and promotion as compared with those who joined service  after  him  could have  resulted  from  justifiable grounds  of  discrimination  from the point of  view  of  an application of Article 16(1) of the Constitution.  Thus,  as already indicated above, although, it appears, on the,  face of it, unjust that the petitioner Amrit Lal Berry, who is  a B. A. and entered service on 15-12-1948, should be confirmed from   1-7-1955,  but,  Narinder  Singh,  who  is   only   a Matriculate and entered into service on 7-2-1949, should  be confirmed  from  1-7-1953 under orders of the  Collector  of Central  Excise  dated  5-5-1956; yet,  this  difference  is explained by the uncontroverted assertion in paragraph 3  of the count" affidavit dated 10-10-73 of Shri N.  Subramanian, Under  Secretary,  that  the petitioner  did  not  pass  the prescribed departmental examination until November 1954.  It

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appears that, the petitioner Amrit Lal ’.Berry was confirmed as  soon as be could reasonably be confirmed on  the  occur- rence  of  a vacancy in the permanent cadre  after  he  bad, passed  his  examination,  as  required by  rule  7  of  the Departmental Examination Rules, made applicable on 25-6-1949 to   all  existing  officiating  and  temporary   Government servants  in  the Central Excise Department.  He  could  not have, therefore, complained on that score.  He has not shown that be was not treated as others in the same grade who  had not  passed the prescribed examination before  confirmation. Indeed,  be  has  not even impleaded Narinder  Singh  as  an opposite party.  He 972 Was Confirmed as long ago as 1955. The real and only  ground of his complaints seems to be that the imposition of a  test as  a  condition Precedent to confirmation has  delayed  his confirmation  by two years, And, that was long  before  even the 1959 memorandum. If the reason for the earlier confirmation of some  persons, who  obtained  earlier promotions in the  year  1970-71,  is justifiable  on :rounds other than length of service, it  is difficult  to see how a petitioner in the position of  Amrit Lal  Berry could complain of any unjust treatment  violative of  Article 16(1) of the Constitution.  On* cannot find,  in the  petition,  any ground for his assertion that  he  could have  been  confirmed  or promoted earlier  than  those  who entered  service after him except that he,  entered  service earlier.   But to accept such a claim, built on a  bald  and single ground, would be to overlook that confirmation,  even according to the rules applicable in 1949, depended also  on conditions  other than mere length of service.  This  aspect of  the case was not involved in Ravi Varma’s case  (supra). At  any rate, no party in that case seems to have relied  on Any rule or provision outside the two memoranda. one of 1949 and another of 1959, considered there. Another grievance of the petitioner Amrit Lal Berry was that he was not given the senior grade of Inspectors with  effect from  21-31961 but only from 8-12-1967.  He attributes  this result  merely to his wrong place in the seniority list  due to  his delayed confirmation.  At the same time, he  asserts that he crossed the Efficiency Bar on 12-61968.  If crossing the Efficiency Bar was a condition precedent to getting  the senior grade he was given that grade earlier than 1968.   It is  not  clear,  either  from the  assertions  made  by  the petitioner  or in the counter affidavits,  whether  crossing the  Efficiency Bar was a condition precedent to entry  into the  senior grade or mere length of service was  enough  for this  purpose.  Neither the office Memorandum of  1949  nor the  petition of Amrit Lal Berry gives conditions  of  entry into  the  senior  grade.  It,-was  for  the  petitioner  to satisfy  the  Court that he was not given the  senior  grade although he satisfied all the required conditions of it  and that  others,  who  were promoted into it,  were  given  un- justifiable  preference over him.  It is difficult,  on  the assertions made in the affidavits before us, to see how  the petitioner war. denied equality of opportunity in not  being given the senior grade in 1961 but only in 1967. Even  if we were to assume, as the petitioner would like  us to  do, that a disregard of seniority determined  solely  by length of service was the only reason for his failure to get the senior grade in 1961. there is yet another hurdle before the  petitioner  which was not shown to be present  in  Ravi Varma’s  case  (supra), and, therefore,  not  considered  or adjudicated upon in that case.  There, no objection based on delay in applying to the Court was taken persumably  because

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it  could not be taken.  But, a number of promotions  having taken place between 1959 and the filing of Amrit Lal Berry’s petition  in 1971, those who were so promoted and  had  been satisfactorily discharging, for considerable periods  before the  filing of the petition, their duties in a higher  grade would acquire new claims and qualifications, by 973 lapse  of time and due discharge of their new  functions  so that they could not, unless relief had been sought  speedily against   their   allegedly   illegal   confirmations    and promotions,  be  equitable equated with the  petitioner  The equality  in the equitable balance brought into being  by  a petitioner’s   own   laches  and  acquiescence   cannot   be overlooked   when  considering  a  claim  to   enforce   the fundamental  right  to equal treatment-  To  treat  unequals equally would also violate that right.  Although, it may not be possible for the State or its agents to plead an estoppel against a claim to the fundamental right to equal treatment, yet,  if a petitioner has been so remiss or negligent as  to approach  the  Court  for relief  after  an  inordinate  and unexplained delay, be certainly jeopardises his claims as it may become inequitable, with circumstances altered by  lapse of time and other facts, to enforce, a fundamental right  to the detriment of similar claims of innocent third persons. Learned  Counsel  for  the opposite parties  has  relied  on Rabindra  Nath  Bose  & Ors. v. Union of India  &  Ors.  (1) where,  because  rights of persons who  had  benefited  from allegedly  illegal seniority rules for a long time would  be disturbed, this Court dismissed a petition under Article  32 on  the ground of inordinate delay in seeking relief.   This Court said there (at p. 712) :- "It  is said that Art. 32 is itself a guaranteed right.   So it  is,  but it does not follow from this that  it  was  the intention of the Constitution markers that this Court should discard  all principles and grant relief in petitions  filed after inordinate delay. We  are not anxious to throw out petitions on  this  ground, but  we must administer justice in accordance with  law  and principles of equity, justice and good conscience.  It would be unjust to deprive the respondents of the right which have accrued  to them.  Each person ought to be entitled  to  sit back  and  consider  that  this  appointment  and  promotion effected  a long time ago would not be set aside  after  the lapse of a number of years". Learned   Counsel  for  the  petitioners  has  relied   upon observations   in  a  recent  decision  of  this  Court   in Ramchandra   Shankar  Deodhar  &  Ors.  v.  the   State   of Maharashtra  &  Ors., (2) where  after  considering  earlier cases It was observed (at p. 325-326) : "There  was  a  delay of more than ten or  twelve  years  in filing  the petition since the accrual of the cause of  com- plaint,  and  this  delay, contended  the  respondents,  was sufficient to disentitle the petitioners to any relief in  a petition under Art. 32 of the Constitution.  We do not think this contention should prevail with us.  In the first place, it  must  be remembered that the rule which  says  that  the Court may not inquire into belated and stale claims is not a rule  of  law, but a rule of practice ’based  on  sound  and proper (1) [1970] 2 S.C.R. 697. (2)  [1974] 1 S.C.C, 317 @ 325-26 974 exercise of discretion, and there is no inviolable rule that whenever  there is delay, the Court must necessarily  refuse to entertain the petition.  Each case must depend on its own

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facts". Rabindra Nath Bose’s case (supra) was distinguished here  on the  ground  that no rights, legal or  equitable,  of  third parties  had arisen by lapse of time in the case before  the Court.   The  following principle laid  down  in  Tilokchand Motichand v. H. B. Munshi(t) was also affirmed :               "The  party claiming fundamental  rights  must               move  the Court before other rights come  into               existence.   The action of Courts cannot  harm               innocent  parties  if their rights  emerge  by               reason  of  dalay on the part  of  the  person               moving the Court". It is true that Amrit Lal Berry had amended his petition  so as to make it appear that a fresh cause of action accrued in his  favour on 22-7-1972 when the office memorandum set  out in  full  above was issued during the pendency of  his  Writ Petition,  and the Writ Petition of K. N. Kapur  and  others purports  to  be directed against the office  memorandum  of 1972  consequential  instructions.   Nevertheless,  when  we examine  the  contents  of that office  memorandum  and  the substance of the petitions before us, it becomes  abundantly clear  that what was bring really sought by the  petitioners was   setting  aside  of  a  number  of  confirmations   and promotions  which  had  taken place  long  before  the  Writ Petitions   were   filed  without  even   making   necessary assertions  to  indicate precisely the  occasions  on  which allegedly  illegal confirmations and promotions  took  Place and of which person or persons exactly on each occasion.  As we  have  pointed  out above, at least those  who  had  boon promoted could, after a lapse of a number of years in  their new  posts,  be regarded equitably as persons in a  new  and separate class. It  is  true that the concerned  Central  Excise  Department officials  would  have known the correct legal  position  if they had cared to study the decision of this Court in Mervyn Coutindo  &  Ors.  v. Collector of Customs,  Bombay  &  Ors. (supra) which was pronounced on 14-2-966.  There, this Court had pointed out, inter-alia, that the memorandum of 1959 did not  apply  any new principles  retrospectively.   That  was primarily  a case on the validity of the  rotational  system which was alleged to be struck by the principles of Articles 14  and  16 (1) of the Constitution.  Even if  the  opposite parties  had  missed the significance of an  observation  in that case that the principles introduced by 1959  memorandum were not to be applied retrospectively on the terms of  that memorandum itself, yet, Govt. servants who could benefit  by this observation probably they have an Organisation to  keep a watch over and protect their interest ought to have  also realised  the meaning of this pronouncement long ago.   They could  have  raised  the question in a Writ  Petition  in  a representative  capacity  so that general order  could  have been obtained to govern all (1)  [1969] 2 S.C. R.824.                             975 similar   cases.   They  need  not  have  waited   for   the pronouncement  of the law by this Court on 4-1-1972 in  Ravi Varma’s case (supra).  But, whatever may be the consequences to  parties  affected by slumbering over  their  rights,  we think  that the Central Excise Department am be presumed  to know the law as declared by this Court in Mervyn  Coutindo’s case (supra) in 1966.  We find its lethargy in waiting until 1972 to make any attempt to rectify its errors far from com- mendable. The  memorandum  of  1972 contains  a  set  of  instructions intended  for  carrying   out the requirements  of  the  law

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declared by this Court in Ravi Varma’s case (supra) on  4-1- 1972  without disturbing such equitable rights as  may  have accrued to other Govt. servants by lapse of time.  It is not suggested that this attempt was not a bonafide one.  It  had resulted  in  the  conferment  of  such  benefits  from  the declaration  of the law in Ravi Varma’s case, as  could,  in the   estimation  of  the  Central  Excise  Department,   be reasonably  reaped  by the petitioners.  It  could  only  be understood in the context of the past executive instructions and declarations of law by this Court. It  will  be  noticed that Ravi  Varma’s  case  (supra)  was decided  on an appeal from a decision of the High  Court  on Writ Petition under Article 226 of the Constitution.  It was enough,  for the purposes of a, petition under Article  226, to show a violation of an applicable rule of seniority  laid down  in the relevant executive instructions.  But, we  have writ  petitions under Article 32 of the Constitution  before as for which violations of fundamental rights under  Article 16 (1) of the Constitution have to be satisfactorily shown. Learned  Counsel  for the petitioner relied  upon  Union  of India  v.  Vasant Jayaram Karnik & Ors.(1) to  contend  that violation  of  a rule relating to seniority in  &  cadre  or grade  would  be enough to base a claim for "relief  on  the footing that he is denied equality of opportunity".  In that case,  the  selection  for promotion was  on  the  basis  of "seniority cum-merit". and it had been found that  different standards     had     been    applied     in     determining seniority  of  the  petitioners before  the  High  Court  to compared with the seniority of opposite parties before  that Court’ Hence, the High Court had quashed the seniority  list and it.% decision was upheld by this Court.  Application  of different   and  unjustifiable  standards  for   determining seniority  did,  therefore, establish a clear  violation  of Article 16 of the Constitution in that case.  In the  before us, this had not been demonstrated, although it may  perhaps have been possible to show this if all the facts could  have been  so out clearly with instances in which and the  manner in  which  each petitioner had been  wrongly  superseded  by contravening  a principle lowing from or implied by  Article 16  (1)  of the Constitution.  However  as we  have  already found that the petitions are also liable to be dismissed  on the  ground that the equitable rights of a number  of  other Government  servants had come into existence by  the  laches and  acquiescences of the petitioners, we need  not  proceed further to consider the question whether a violation of  the fundamental right (1)  A.I.R. 1970 S.C. 2092. 976 of  the  Petitioners by the Central  Excise  Department  was really and duly established here.  On this view of the cases before  us,  it is also not necessary for us to  decide  the question whether there is any defect in the petitions before us  due  to a misjoinder either of causes of  action  or  of petitioners. It  may be mentioned here that an attempt was made by  Amrit Lal  Berry to account for delay In filing his petition.   He said that he had made two departmental representations,  one dated  6-3-1965  and another dated 13-8-1971,  of  which  he filed  copies, to which no replies had been received so  far by him.  It was denied by the Excise Department that he ever sent  the first representation.  It is evident that  he  had waited   for  a  considerable  period  before   making   his representation in 1965 even if we were to assume that he did make  such a representation then.  Furthermore, the copy  of the  alleged  representation  of  1965  shows  that  it  was

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directed only against the imposition of test by  examination before  confirmation.   We  do not think,  that,  merely  by filing repeated or delayed representations, a petitioner can get over the obstacles which delay in approaching the  Court creates because equitable rights of others have arisen.   We may,  however, observe that when a citizen aggrieved by  the action  of a Government Department has approached the  Court and obtained a declaration of law is his favour, others,  in like  circumstances, should be able to rely on the sense  of responsibility  of  the Department concerned and  to  expect that  they  will be given the benefit  of  this  declaration without the need to take their grievances to Court. In the petition of K. N. Kapur & others, we do not even find at  assertion that any representation was made  against  any violation   of  a  petitioner’s  right.   Hence,  the   rule recognised  by this Court is Kamini Kumar Das  Choudhury  v. State  of West Bengal & Ors.(1), that a demand  for  justice and its refusal must precede the filing of a petition asking for  direction  or  Writ of  Mandamus,  would  also  operate against the petitioners. It  is  submitted  by the learned  Counsel  for  the  Excise Department that the real grievance of the petitioner is that they  have not been awarded consequential benefits  such  as promotions  and arrears of salary as a result of an  alleged wrong preparation of seniority list in 1961.  The memorandum of 1972 attempts to satisfy the grievance of the petitioners to  the extent that it is reasonably possible,  consistently with  the equitable rights of others, that the principle  of length  of service laid down in the 1949  memorandum  should govern the cases of those appointed prior to 1959.  We think that  the 1972 memorandum may be fairly interpreted to  mean that (a) the 1949 memorandum will apply to all cases covered by  it till the 1959 memorandum came into effect,  (b)  that those  who  were, in good faith and in the  regular  course, confirmed and/or promoted regularly though by an honest mis- application  of  the 1959 memorandum will not  be  disturbed even  if  they  be junior to the claimants  under  the  1949 memorandum  : (c) that in future, for vacancies and  quotas, as   earlier  explained,  those  with  longer  service,   as contemplated by the (1)  A. T. R. 1972 S.C. 2060@ 2065. 977 1949  memorandum.  will be considered for  confirmation  and promotion  and (d) that, in the subsequent career  of  those who  stand  to benefit by the 1959 memorandum,  that  factor will be reckoned in their favour when further  opportunities for  promotion arise, so that they may not suffer  for  ever from  the  misconstruction  of the memorandum  made  by  the Excise  Department.   It  will  be  for  the  Department  to consider  what  consequential  benefits can be  given  as  a result of reconsideration of a case. Lastly,  it was urged that the fixation of 4-1-1972  as  the date after which all confirmations aid promotions made would be  revised in order to conform to the seniority  determined by  length of service of persons appointed prior  to  22-12- 1959  was arbitrary.  Reliance was placed upon D. R. Nim  v. Union of India,(8) where a date fixed for the application of a particular rule was held to be arbitrary.  In reply it was submitted  that  4-1-1972 was the date on which  this  Court delivered  judgment in Ravi Varma’s case (supra)  making  it finally clear and definite to the Central Excise  Department what  the correct interpretation of memorandum of 1959  was, and,  therefore,  the date had not  been  chosen  altogether arbitrarily.  A perusal of the memorandum of 1972 shows that the   date   4-1-1972  was  only  chosen  for   giving   the

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retrospective effect to whatever may be the actions taken on a wrong view of the law after this date.  In other words, it means that promotions and confirmations made after  4-1-1972 would,  in  any case, be reopened.  The  provisions  of  the memorandum, which are not very clear as to what will  happen in decisions taken before 4-1-1972 by the Excise Department, have  been  now  interpreted  by us  so  that  they  may  be construed  in a manner consistent with the apparent  objects of  the  memorandum.   The  result  seems  to  be  that  the seniority of all unconfirmed persons is to be determined  in accordance  with the law as declared by this Court  on  4-1- 1972; but, as regards persons who had already been bona fide confirmed  or promoted before 4-1-1972, no undoing  of  what had  already  be" done in their favour  would  be  possible. Nevertheless, it was laid down there that the cases of those who  had failed to be either considered for confirmation  or promotion merely because of the failure to apply the  length of service rule for determining seniority, would not  suffer but will be reconsidered now subject to existence of  vacan- cies  in  the grade for confirmation, or  in  the  promotion quota. We are not quashing any part of the memorandum of 1972 as we do  not  so  interpret it as to make  it  possible  for  the Central  Excise Department to violate Article 16(1)  of  the Constitution by resorting to it.  We take its meaning to be- and,  so  construed,  it  will  be  Constitutional-that  the declaration of law by this Court on 4-1-1972 will affect all cases  in which the Principles of 1949 memorandum can  still be  applied despite any confirmations wrongly  made  between 1959  and  4-1-1972.   It appears to us  that  in  cases  of promotions  wrongly  made  between 1959  and  4-1-1972,  the position,  despite  the clarification attempted  by  us,  is still left rather vague.  As no (1)  (1967) 2 S.C.R. 325. 978 question  of  the seniority of a  person  actually  promoted before  4-1-1972  is  against that of a before  us,  on  the footing  that both belong to the person promoted after  4-1- 1972 is class of promotees whose seniority. inter se, should be determined by the total lengths of their we refrain  from pronouncing  upon  such questions.  We hope  that  just  and reasonable   rules   for  determining  such   questions   of seniority, on a principle of length of service combined with merit,  will be evolved by the Excise Department  itself  to prevent  complaints of injustice and future litigation.   It is  for  the  Central  Excise  Department  itself  to   make appropriate  rules.  It is only when such rules  violate  or have  been so used as to violate the fundamental  rights  of any  group of persons employed by the State that this  Court can interfere, In such  we see no objection to the filing of writ  petitions in representative capacities,  by  aggrieved persons after taking. necessary steps under Order 1, rule 8. Civil   Procedure   Code,  the  application  of   which   to proceedings   under  either  Article  226  or  32   of   the Constitution  does  not  appear to us to be  barred  by  any provision. It  is difficult to understand why statutory provisions,  on the  lines on which provisions have been made  for  superior services  and  rules under such provisions are not  made  to ensure  that  nothing except just  considerations.  such  as merit  tested by performance and integrity revealed  by  the service records or other reasonable tests as well as  length of service, can count in making confirmations or promotions. The,  petitioner,, have, however, failed to  establish  that just  and reasonable considerations did not prevail  in  any

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particular instance brought to our notice. Consequently,  we dismiss these Writ Petitions, but, in  the circumstances  of these cases, parties will bear  their  own costs. P.B.R. Petitions dismissed. 97 9