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PETITIONER: G.P. DOVAL AND OTHERS

       Vs.

RESPONDENT: THE CHIEF SECRETARYGOVERNMENT OF U.P. AND ORS.

DATE OF JUDGMENT18/07/1984

BENCH: DESAI, D.A. BENCH: DESAI, D.A. SEN, AMARENDRA NATH (J)

CITATION:  1984 AIR 1527            1985 SCR  (1)  70  1984 SCC  (4) 329        1984 SCALE  (2)11  CITATOR INFO :  D          1987 SC 424  (24)  RF         1987 SC2359  (17)  D          1988 SC 268  (22)  D          1989 SC 278  (18,20)  D          1990 SC1311  (7)

ACT:      Constitution of India 1950, Articles 14,16, and 32.      Seniority-Fixation of-Past  service to  be given credit if stop-gap arrangement is followed by confirmation.      Khandsari  Licensing  Scheme-Appointment  of  Khandsari Inspectors-Inter-se  seniority  of  ad  hoc  appointees  and direct recruits  through Public  Service Commission-Fixation of-Whether to  be  reckoned  from  date  of  appointment  to temporary post  or from  date of  approval by Public Service Commission.      Provisional   Seniority    List   issued-Violation   of fundamental right guaranteed under Articles 14 and 16-Burden of proof on whom lies.      Provisional Seniority List issued in 1971-Writ petition filed in  1983-Whether liable  to be  dismissed on ground of latches or delay.      Words and  Phrases: ’Or  from the  date of the order of the first  appointment if  such appointment  is followed  by confirmation’-Meaning of.

HEADNOTE:      In the  year 1958-59  the State  Government framed  the Khandsari  Licensing   Scheme  to  regulate  the  supply  of sugarcane to  sugar factories. Posts of Khandsari Inspectors initially designated as Licensing Inspectors were created in the pay-scale  of  Rs.  120-250.  Petitioners  in  the  writ petitions were  appointed as  Khandsari  Inspectors  between March and May, 1960. Thereafter some of the respondents were recruited as Khandsari Inspectors and along with some others who were  recruited departmentally  were approved  by Public Service Commission. On March, 22, 1971 the third respondent- the Sugar  Commissioner-circulated a  provisional  seniority list of Khandsari Inspectors. 71      The petitioners  represented against the seniority list contending that  they  were  assigned  lower  place  in  the

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seniority list  even though  they were recruited earlier and have  been  continuously  in  service.  The  representations having been  rejected, writ  petitions were  filed  in  this Court.      In their  writ petitions to this Court, the petitioners contended that  when recruitment  was made in the year 1960, the post  of Khandsari  Inspector was not within the purview of  the   Public  Service  Commission  and  that  they  were regularly  recruited   to  posts   which  were   temporarily sanctioned but  indefinitely  continued  and  therefore,  in reckoning their seniority, they must be given the benefit of the length of continuous officiation, and that once approval is granted  by the Public Service Commission it would relate back to  the date of their appointment and that the previous length of  service cannot  be ignored or denied in computing seniority  in   the  absence   of  any   statutory  rule  or administrative instruction.  It was further pointed out that petitioner Nos.  4 to  8, who were recruits of 1961 had been assigned places  Nos. 30.  34, 42, 35 and 31 respectively in the seniority list while recruits of 1963 had scored a march over them in the provisional seniority list.      The respondents contested the writ petitions contending that by  a Government  order  temporary  post  of  Licensing Inspectors were  re-designated as  Khandsari Inspectors  and that the post right from inception was within the purview of the Public  Service Commission,  that on  the framing of the Khandsari Licensing  Scheme, it became necessary to urgently appoint Inspectors  to implement  the scheme,  and therefore the third  respondent-the Sugar  Commissioner  who  was  the appointing authority  pending regular selection through open competition through  Public Service  Commission proceeded to make the  appointments of  the petitioners as stop-gap or ad hoc nature  and that  their appointment  created no right to the post. The drawing up of the tentative seniority list was justified as  being based  on  the  recommendations  of  the Public Service  Commission, and  it was  submitted that  the service  which   can  be   taken  into   consideration   for determining  the   length  of  continuous  officiation  must commence from  the date  of substantive appointment and that the provisional  seniority list had been drawn up keeping in view the  date of  approval by the Public Service Commission in respect  of each candidate and that there was no error in drawing up the seniority list. It was further contended that promotions  which   were  granted   on  the   basis  of  the provisional  seniority  list  were  not  questioned  by  the petitioners and  they have  acquiesced in  it, and  that the petitioners had  moved the  Court after  a long  unexplained delay and that the Court should not grant any relief.      Allowing the Writ Petitions, 72 ^      HELD: (1)  The impugned  seniority list dated March 21, 1971  in   respect  of   Khandsari  Inspectors  is  quashed. Respondents 1 to 3 are directed to draw up a fresh seniority list  based   on  the  principle  of  length  of  continuous officiation reckoned  from the  date of first appointment if the appointment  is followed  by confirmation i.e. selection approval by the State Public Service Commission. [87 F]      (2)  (i)  The  Memorandum  of  1940  merely  prescribed guidelines for  the departments of the Secretariat either to frame statutory  rules or  executive instructions  governing conditions of  service in  respect of  existing services  if there are no rules, or they may be modified or amended so as to bring  them generally  in conformity with the 1940 Order, and whenever  a new  post or a new cadre in a service is set

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up to  frame rules  in conformity with guidelines prescribed in the  1940 Order.  The 1940  Order does not purport to lay down  conditions  of  service  governing  any  cadre  either specifically or  generally. It  provides a  model and unless the model is adopted it is not binding. [82 D-F]      (ii) Assuming  that the  model principle set out in the 1940 order  has a binding effect the impugned seniority list does  not  conform  to  the  prescribed  guidelines  and  is invalid. [85 F]      (3) (i) A fair rule of seniority should ordinarily take into account the past service if the stop-gap arrangement is followed by confirmation. [86 E]      (ii)  If   a  stop-gap  appointment  is  made  and  the appointee appears  before the Public Service Commission when the  latter   proceeds  to  select  the  candidates  and  is selected,  there  is  no  justification  for  ignoring  past service. There  is also  no justification  for  two  persons selected in  the same  manner being  differently treated. If once a  person in a stop-gap arrangement is confirmed in his post by  proper selection,  his past service has to be given credit and  he has  to  be  assigned  seniority  accordingly unless a  rule to the contrary is made. In the instant case, that has  not been done to all the petitioners. The error is apparent in  the case of petitioner No. 1 and respondent No. 7. [86 B-D]      (iii) When  a seniority  list is  challenged  as  being violative of the guarantee of equality enshrined in Articles 14 and  16 and  prima facie  it appears  that those who came into the  cadre later  on scored a march over those who were already  in  the  cadre,  it  would  be  for  the  authority justifying the  seniority list  to plead  and point  out the rule for  determining seniority  on the  basis of  which the list is  drawn up.  If any  such rule is pleaded it would be for those impugning the seniority list to aver and establish that 73 the alleged  seniority rule  is violative of the fundamental rights guaranteed by Articles 14 and 16. [78 G-H; 79A]      (4) (i)  It is  open to  the  Government  to  lay  down general conditions  of service governing all services in the State either  by rules  framed  under  Section  241  of  the Government of  India Act  1935, or  on  the  advent  of  the Constitution  under  the  proviso  to  Article  309  of  the Constitution. In  the absence of statutory rules, conditions of  service  in  a  particular  cadre  may  be  governed  by executive instructions  issued by the Government in exercise of its executive power. [81 C-E]      (ii) In  the  absence  of  any  other  rule  valid  for determining seniority  under  Article  16,  seniority  being determined by  the length of continuous officiation has been accepted as valid by the courts. [82 H; 83 A]      P.S. Mahal and Ors. v. Union of India and Ors. [1984] 3 S.C.R. 823  and Bishan Sarup Gupta v. Union of India, [1975] 1 SCR 104, referred to.      (5)  Model   Rule  11   suggests  as   guidelines   two independent principles for determining seniority; namely (1) seniority should  be reckoned  from the  date of substantive appointment, and  (2) from  the date  of the  order of first appointment if such appointment is followed by confirmation. [84 A]      In the  instant case, recitals in the appointment order do not  spell-out that  the appointees were to hold stop-gap arrangement till  a candidate selected by the Public Service Commission is  made available. On the contrary, the recitals clearly indicate that those appointees will have to face the

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approval  test   by  the   Public  Service   Commission.  If petitioner Nos.  1 and  2 came  to be  appointed in 1960 and respondent Nos.  4, 5 and 6 came to be appointed in 1961 and the appointment  of each  of them  had to be approved by the Public Service  Commission, once the approval is granted the same will relate back to the date of first appointment. That is the  meaning of  the expression in Model No. 11; ’or from the date  of the  order of  the first  appointment  if  such appointment is followed by confirmation.’ [85 A-C]      (6)  Where   officiating  appointment  is  followed  by confirmation unless  a contrary  rule is  shown, the service rendered as  officiating appointment  cannot be  ignored for reckoning length  of continuous  officiation for determining the place in the seniority list. [86 G]      Baleshwar Dass  and Ors. etc. v. State of U.P. and Ors. etc.,[1981] 1 SCR 449, referred to. 74      In the  instant case,  respondents  1  to  3  have  not finalised the  seniority list  for a  period of more than 12 years and  are operating  the same  for further promotion to the utter  disadvantage of the petitioners. Petitioners went on making representations after representation which did not yield  any   response,  reply   or  relief.   Further,   the petitioners belong  to the  lower echelons of service and it is  not  difficult  to  visualise  that  they  may  find  it extremely difficult  to rush  to the  court. The  contention that the  writ petitions  should be thrown out on the ground of  delay,   latches  an   acquiescence  must  therefore  be rejected. [87 C-D]

JUDGMENT:      ORIGINAL JURISDICTION:  Writ Petition  Nos. 5105-13  of 1983.       (Under article 32 of the Constitution of India)      M.K. Ramamurthi,  Mrs. Indra  Sawhney, Mrs. C. Malhotra and M. A. Krishnamoorthy for the Petitioners.      Yogeshwar Prasad,  Mrs. Rani  Chabra, Gopal Subramaniam and Mrs. Sobha Dikshit for the Respondent.      The Judgment of the Court was delivered by      DESAI, J.  The petitioners  in this  group of petitions under Art. 32 of the Constitution were inducted as Khandsari Inspectors between March, 1960 and 1964. Respondents 4 to 19 were also  recruited as  Khandsari Inspectors  on  different dates. Respondents 1 and 2 are the Chief Secretary, Govt. Of U. P.  and the  Secretary, Industries respectively of the U. P. Government and respondent No. 3 is the Sugar Commissioner of U.  P.  The  dispute  amongst  the  petitioners  and  the respondents 4 to 19 is about inter-se seniority between them in the cadre of Khandsari Inspectors.      It  appears   that  in  the  year  1958-59,  the  State Government framed  what is  styled  as  Khandsari  Licensing Scheme’  to  regulate  the  supply  of  sugarcane  to  sugar factories by G.O. No. 4588 (1) XVIII-A-680/59 dated November 21, 1959. Posts of Khandsari Inspectors initially designated as Licensing  Inspectors were  created in  the pay-scales of Rs. 120-250.  Petitioners Nos.  1, 2 and 3 were appointed as Khandsari Inspectors between March and May, 1960. Thereafter some of the respondents were recruited as 75 Khandsari Inspectors  and some  others  who  were  recruited departmentally  were   approved  by   the   Public   Service Commission. On  March 22,  1971, the  third  respondent  the Sugar Commission  circulated a provisional seniority list of

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Khandsari Inspectors.  The grievance  of the  petitioners is that some  of the petitioners have been assigned lower place in the  seniority  list  even  though  they  were  recruited earlier  and   have  been   continuously  in   service.   To illustrate, petitioners  pointed out that petitioners 1 to 3 have been  placed at  Serial Nos  25,29 and 27, respectively though all  of them  were recruits  of 1960 while respondent No. 7-J.S.  Negi, who  was recruited  on March  23, 1961 was assigned the  place at  Serial No.  15 and  respondent  No.4 O. N.  Chaturvedi, who  was recruited  on March 23, 1961 was shown at Serial No. 6. Similarly, respondent No. 9-P.N. Rai, who was also recruited on March 23, 1961 was shown at Serial No 17  and respondent  No. 5  was shown at Serial No. 8. The petitioners further  pointed out that petitioners Nos. 4, 5, 6, 7  and 8,  who were  recruits of  1961 have been assigned places Nos.  30,  34,  42,  35  and  31  respectively  while recruits of  1963 have  scored a  march  over  them  in  the provisional seniority list. The petitioners assert that when the recruitment  was made  in the  year 1960,  the  post  of Khandsari Inspector was not within the purview of the Public Service Commission and that they were regularly recruited to posts which  were temporarily  sanctioned  and  indefinitely continued  till   today  and  therefore,  in  reckoning  the seniority, they  must be  given the benefit of the length of continuous officiation.  They further  contend that when the post of  Khandsari Inspector  was later  brought within  the purview of  the Public  Service Commission, the names of the petitioners who were already recruited in service as also of some of the respondents were forwarded to the Public Service Commission for  approval and  except petitioner  No 9  S. P. Gupta, the  names of rest of the petitioner were approved by the Public  Service Commission  on September  30, 1963,  the relevant date  in the  case of petitioner No. 9 is April 14, 1978. The  petitioners assert  that even assuming that their appointment would  be regular  after approval  of the Public Service Commission,  yet once  such approval  is granted’ it would relate back to the 76 date of  appointment and  the  previous  length  of  service cannot be  ignored or denied in computing their seniority in the  absence   of  any   statutory  rule  or  administrative instruction which  has the  force of  law.  The  petitioners further aver that in the absence of any other statutory rule or administrative  instruction  for  determining  seniority, length of  continuous officiation provides a valid principle for  determining   seniority.  Viewed   from   this   angle, petitioners 1  to 3  would be  senior to all the respondents and the placement of the remaining petitioners vis-a-vis the respondents will  have to  be recomputed. On the circulation of the provisional seniority list, the petitioners submitted various representations pointing out the error in drawing-up the provisional  seniority list  but till  this day no reply was given  nor  any  final  seniority  list  circulated  nor reasons assigned  for  rejecting  the  representations.  The petitioners further  say that  despite their representation, respondents 1, 2 and 3 are operating the tentative seniority list for  making further promotions to the post of Khandsari Officer and  Assistant Sugar  Commissioner and  thereby they are being  denied equality  of opportunity  in the matter of promotion. The  petitioners accordingly  questioned by these writ petitions  the validity and legality of the provisional seniority list asserting that as the final seniority list is not being  drawn up  and as  the representations  are  being ignored and  yet the  provisional seniority  list  is  being operated to  the disadvantage  of  the  petitioners  thereby

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denying them  equality  of  opportunity  in  the  matter  of promotion  which  action  of  the  respondents  1  to  3  is violative of Arts. 14 and 16.      Kailash Narain  Pandey, Additional  Sugar  Commissioner filed affidavit  in opposition.  It was admitted that by the Govt. Order  dated November  21,  1959  temporary  posts  of Licensing  Inspectors   later  redesignated   as   Khandsari Inspectors in  the pay scale of Rs. 120-250 were created but according to  him as  the maximum  of the scale was over Rs. 200 right  from its  inception,  the  post  was  within  the purview  of   the  Public  Service  Commission  in  view  of Regulation 5  (a) of Appointment Department Misc. No. 99/II- B-151-60 dated  January 29,  1954  issued  under  the  Uttar Pradesh Public Service Commission (Limitation of Func- 77 tions) Regulations,  1954. It  was then  stated that  on the framing  of   the  Khandsari  Licensing  Scheme,  it  became necessary to  urgently appoint  Inspectors to  implement the scheme   and    therefore,   the    third   respondent-Sugar Commissioner  as   Appointing  Authority   pending   regular selection through  open competition  by the  Public  Service Commission  proceeded   to   make   appointments   and   the appointment of  the petitioners  were of a stopgap or ad-hoc nature and  that it  created no  right to  the post.  It was admitted that  petitioners Nos  1 and 2 were recruited after holding departmental  competitive test  on  March  4,  1960. Petitioner No.  3, who  was then  working as a Clerk in Cane Union Federation  Ltd., Lucknow was selected on May 24, 1960 by applying a weeding out test. Petitioners Nos. 4 to 8 were recruited after  holding qualifying  test and  interview  on 23rd March,  1961 and  Petitioner No. 9 was appointed as and by way  of stopgap  arrangement. It  was contended  that the petitioners were  appointed on an ad-hoc and temporary basis as a  measure of  stopgap arrangement.  It was conceded that all the  petitioners except  petitioner No. 9, were approved by the  Public Service Commission for regular appointment in the year  1963, to  be specific  on 30th September, 1963 and they  have   continued  uninterruptedly   in  the  posts  of Khandsari Inspectors.  It was  further averred that within a period of  one year  and  seven  months  from  the  date  of appointment of  the petitioners  the  State  Public  Service Commission  selected   candidates  to  replace  the  already working unapproved  Licensing Inspectors  on the  request of the Department  and sent  a list  of approved  candidates on September 14,  1961, but  only 5  out of  44  such  selected candidates joined and hence the Department has to permit the petitioners  to  continue  though  according  to  the  third respondent notice  of termination  of service were served on some of  the petitioners.  It was  further pointed  out that when  the  State  Public  Service  Commission  proceeded  to recommend candidates  for the  post of Khandsari Inspectors, some of  the petitioners  applied for  such posts, but their applications were  rejected at the stage of scrutiny. But on a request  from the  Department  the  State  Public  Service Commission  entertained   the   applications,   called   the petitioners for interview and approved them. It was admitted that except petitioner No. 9 all the rest of the petitioners were approved  by the Public Service Commission on September 30,  1963.   Justifying  the  drawing-up  of  the  tentative seniority list  as being  based on recommendations of Public Service Commission, it 78 was  said   that  the   service  which  can  be  taken  into consideration  for  determining  the  length  of  continuous officiation must  commence  from  the  date  of  substantive

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appointment and  accordingly the  provisional seniority list has been  drawn-up keeping  in view  the date of approval by the Public  service Commission in respect of each candidate. It was  averred that  if this  principle is  valid  for  the purpose of  Art. 16,  there is  no error  in drawing-up  the seniority. It  was specifically  stated that  it was open to the Government  to ignore  officiating  service  or  service rendered on appointment in an ad hoc or stopgap arrangement. It was  broadly stated  that before  a man can claim to have his seniority determined in the cadre, he must belong to the cadre and  he  can  only  enter  the  cadre  on  substantive appointment.      The  rival  contentions  would  bring  into  focus  the controversy between  the parties.  The impugned  provisional seniority list  dated March  22, 1971  is  drawn-up  on  the length of  continuous officiation  determined by the date of selection/approval  of  each  person  be  the  State  Public Service Commission.  In the  process service  prior  to  the approval by  the Public Service Commission is wholly ignored while reckoning  seniority with the result that the recruits of 1961  have scored  a march  over those who were recruited earlier  in   the  cadre   and  have   been  uninterruptedly officiating in  the post  and  who  at  a  later  date  were approved by the Public Service Commission for appointment as Khandsari Inspectors.  The question  is: where on account of exigencies of  service, recruitment  to a  post  within  the purview of  the Public  Service Commission  is made  by  the appointing authority, but at a later date the Public Service Commission puts  its seal  of approval on such an appointee, whether the continuous and uninterrupted service rendered by such appointee  prior to  the approval by the Public Service Commission can  and should  be taken  into computation while determining seniority  based on  the principle  of length of continuous officiation ?      When a  seniority list is challenged as being violative of the  guarantee of  equality enshrined  in Arts. 14 and 16 and prima  facie it  appears that  these who  came into  the cadre later on scored a march over those who were already in the cadre,  it would  be for  the authority  justifying  the seniority  list   to  plead  and  point  out  the  rule  for determining seniority  on the  basis of  which the  list  is drawn up. If any such rule is pleaded, it would be for those impugning the  seniority list to aver and establish that the alleged seniority 79 rule is  violative of  the fundamental  rights guaranteed by Arts. 14 and 16.      In the  affidavit-in-opposition filed by the Additional Sugar Commissioner  on behalf  of respondents 1 to 3, it was asserted that  the impugned  seniority list of the Khandsari Inspectors was  drawn-up on  the principle  of the length of continuous   officiation   reckoned   from   the   date   of selection/approval  by  the  Public  Service  Commission  in respect of  each employee  belonging to  the  cadre.  It  is necessary to  refer to  this aspect  because the averment is vague and of a general nature and later on at the hearing of the petitions  reliance was  placed on memo No. O-66/II-233- 1938 dated  January 30,  1940 (’1940  Order’ for  short) for sustaining  the   seniority  list,   the   affidavit   being conspicuously silent with regard to this order. There is not a whisper  of the  1940 Order in the whole of the affidavit- in-opposition. However,  if the  respondents would  be in  a position to  justify the  seniority  list  on  any  existing statutory rule  or administrative instruction which has been invariably followed,  it would  not be  proper to attach too

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much importance  to the  vagueness in  drawing-up  pleadings shifting, the  stand in  the course  of the  proceedings. It must, however,  be made  clear that  Mr. Gopal  Subramaniam, learned counsel  who appeared  for respondent  No.  1  to  3 attempted to  reconcile the  averments in  the affidavit and the oral submissions made at the hearing of the petitions by urging that  when it  is said  in  the  affidavit  that  the seniority in  respect  of  each  member  of  the  cadre  was reckoned  on   the  principle   of  length   of   continuous officiation commencing  from the  date of selection/approval of each  member  by  the  State  Public  Service  Commission respondents 1 to 3 had the 1940 Order in mind.      It is  therefore, necessary first to examine the nature and character  of the  1940 Order  and whether  it lays down either  by   way  of  a  statutory  rule  or  administrative instruction a  binding rule of seniority for determining the seniority in  the cadre of Khandsari Inspectors. If it does, it will have to be further ascertained whether upon its true construction,  the   relevant  rule   excludes  any  service rendered  by   a  member   of  the   service  prior  to  his approval/selection by the State Public Service Commission.      The 1940  Order styled  as a Memorandum was not annexed to the  affidavit-in-opposition. A  copy of it was submitted at 80 the time  of hearing  of the  petitions. In  its preamble it proceeds  to   recite  that  in  view  of  the  ’Appointment Department Memorandum  No. 233(1)/II-38  dated July 27, 1939 the  Department  of  Secretariat  are  informed  that  under Section 241  (1) (B)  and (2) (b) of the Government of India Act, 1935,  rules have  to be  framed for appointment to the civil services  and posts  and  conditions  of  services  of persons serving.’  It further  proceeds to  state  that  the existing rules  for the  various provincial  specialist  and subordinate services  under the Government should be revised so as to bring them to conformity with the provisions of the Government of  India Act,  1935 and new rules should also be drawn-up for services and posts which existed prior to April 1, 1937  but for  which no  rules were framed, or which have been created  after  that  date.’  The  1940  Order  further recites that enquiries are being received as to the lines on which either  the old  existing rules  have to be revised or new rules  have to  be framed.  It  then  states  that  ’the general principles  which have  been accepted  by Government are stated  below’ Para  2 of  the Order, clearly brings out the nature  and character  of the  1940 Order,  the relevant portion of which reads as under:           "2. Among  other things  the rules  should provide      for the following matters."      At Item No. 11, seniority is mentioned. Elaborating how the rule  about seniority should be drawn-up, the memorandum proceeds to prescribe guidelines as under:           "Seniority   in   service   shall   generally   be      determined from  the date of substantive appointment to      a service,  or from  the date  of the  order  of  first      appointment,  if   such  appointment   is  followed  by      confirmation.  In   special  cases   seniority  may  be      determined in  accordance with the conditions which may      suit a particular service."      After extensively  referring to  the 1940 Order, it was urged  on  behalf  of  the  respondents  that  the  impugned seniority list  is drawn-up  keeping in  view  the  date  of appointment, the date 81 of selection/approval  by  the  Public  Service  Commission,

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which is  the relevant  date for  the purpose  of  computing seniority under G.O. of 1940 and the date of confirmation by the department and date of promotion.      The first  question is:  does the 1940 Order lay down a binding rule of seniority in respect of Khandsari Inspectors ? It  may at  once be made clear that the cadre of Khandsari Inspectors  was  first  formed  under  ’Khandsari  Licensing Scheme’ which  was framed somewhere in November, 1959. It is difficult to  believe that  two decades earlier, a seniority rule for a future cadre was prescribed. It is of course open to the  Government to lay down general conditions of service governing all  services in  the State either by rules framed under Sec.  241 of  the Government  of India Act, 1935 or on the advent of the Constitution under the proviso to Art. 309 of the Constitution. It must be conceded that in the absence of statutory  rules, conditions  of service  in a particular cadre may  be governed  by executive  instructions issued by the Government  in exercise  of its  executive power. At any rate, 1940  Order does  not purport  to lay a statutory rule framed under  Sec. 241  of the Government of India Act, 1935 because  the   memorandum  recites   that  in  view  of  the provisions contained  in Sec.  241, rules  have to be framed for appointment to civil service and posts and conditions of service of  persons serving.  It further  recites that rules will have  to be  framed in respect of services which may be created  for   the  first  time  after  the  advent  of  the Government  of  India  Act,  1935.  The  memorandum  further provides that  whenever there  is an  occasion  for  framing statutory rules  or issuing executive instructions governing conditions of service, there must be some uniformity in this behalf and accordingly the memorandum proceeded to point out what should  generally be  the contents  of the rules and on what model  they should be framed. Therefore, unquestionably the  memorandum  prescribes  guidelines  for  framing  rules governing conditions of service. The memorandum is something akin to  model standing  orders. At  any rate  it  does  not purport  to   prescribe   statutory   rules   or   executive instructions governing conditions of service. 82 This further becomes clear from the penultimate paragraph of the memorandum in which it is stated that the principles set out in the memorandum will be generally suitable for service or posts  recruitment to  which  is  conducted  through  the Public Service Commission and whenever the departure is made the same  should be  justified. Directions  are given by the memorandum that  the departments  of the  Secretariat should proceed with  the revision  of the existing service rules or frame rules for new service and posts under their control in accordance with  the principles  set out  in the memorandum. The departments were directed to draw-up the draft rules and when ready  they were  required  to  be  submitted  for  the scrutiny  of   the  appointment  department  and  should  be accompanied by  a self contained note in which the important points and  deviation from  the above  principles should  be explained and  justified. It  is thus  abundantly clear that the memorandum  of 1940 merely prescribed guidelines for the departments of  the Secretariat  either to  frame  statutory rules or  executive  instructions  governing  conditions  of service in  respect of  existing services,  if there  are no rules or they may be modified or amended so as to bring them generally in  conformity with  the 1940 Order and whenever a new post  or a  new cadre  in a  service is  set up to frame rules in  conformity  with  guidelines  prescribed  in  1940 Order.  The   1940  Order  does  not  purport  to  lay  down conditions   of   service   governing   any   cadre   either

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specifically or  generally. It  provides a  model and unless the model  is adopted,  it is  commonsense to say that it is not binding.  Therefore,  the  contention  that  1940  Order prescribes binding conditions of service and which have been followed in  drawing-up the  seniority list does not commend to us and must be rejected.      Assuming that  in the  absence of  any specific rule to the contrary having not been shown to have been adopted, the Department accepted  the model  as the binding one, the next question is:  whether upon  its true construction it permits previous  service   to  be   wholly  ignored   in  reckoning seniority.      The model  set out  at Item  No. 11 governing seniority merely enacts the well-known rule of seniority in Government Service, namely,  seniority being  determined in  accordance with length of continuous officiation. In the absence of any other rule valid for 83 determining seniority  under Art. 16 rule or seniority being determined by  the length of continuous officiation has been accepted as valid by the courts. In a very recent opinion of this Court in P.S. Mahal and Ors. v. Union of India and Ors. Bhagwati, J.  after referring to Bishan Sarup Gupta v. Union of India observed as under:           "There was no specific seniority rule to determine      inter-se seniority  between the direct recruits and the      promotees appointed  regularly within  their respective      quota from  and after 16th January, 1959 and though, in      the absence  of any  specific seniority rule, the Court      could have  applied the  residuary rule based on length      of continuous  officiation, the  Court did  not  do  so      because it  felt that  since the old seniority rule had      ceased to  operate by reason of the infringement of the      quota rule, it would be for the Government to devise "a      just and  fair seniority  rule as  between  the  direct      recruits and  the promotees  for being  given effect to      from 16th January, 1959."      Therefore, in  the absence  of  any  specific  rule  of seniority governing a cadre or a service, it is well-settled that length  of continuous  officiation will  provide a more objective and  fair rule  of seniority.  And that is exactly what the  model in  the memorandum  prescribes. It says that seniority in  service shall generally be determined from the date of  substantive appointment  to a  service. If the rule were  to   stop  here,   the  question   would  arise:  what constitutes substantive  appointment to  a post  within  the purview of the Public Service Commission ? But the rule does not stop by merely saying that the seniority shall generally be determined  from the date of substantive appointment to a service. It  further provides  that  it  may  be  determined commencing  from   the  date  of  the  order  of  the  first appointment, but  proceeds to  qualify the  last  clause  by providing:   ’if    such   appointment    is   followed   by confirmation’.  In  other  words,  a  rule  for  determining seniority may  provide length of continuous officiation from substantive appointment or from the date of the order of the first  appointment   if  such  appointment  is  followed  by confirmation. In  the latter case, once confirmation is made and the service till then is uninterrupted and continuous it relates  back  to  the  date  of  the  order  of  the  first appointment. 84 Now model  Rule 11  suggests as  guidelines two  independent principles for  determining seniority,  namely (1) seniority be reckoned from the date of substantive appointment and (2)

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from the  date of  the order  of first  appointment, if such appointment  is  followed  by  confirmation.  Two  different starting points  for reckoning  seniority are set out in the model and  it is difficult to assume that department adopted one and rejected the other without making a specific rule in that behalf.      The  question   that  can   then  be   posed  is:  what constitutes substantive  appointment in  a  cadre  which  is within the purview of the Public Service Commission. Now the cadre of  Khandsary Inspectors  was formed in 1959. There is no material  to show  that at  that time  it was  within the purview of  the Public Service Commission. A vague statement was  made  that  under  the  Uttar  Pradesh  Public  Service Commission (Limitation  of Functions) Regulations, 1954, any post with  a sanctioned  scale, the maximum of which exceeds Rs. 200/-  would be within the purview of the Public Service Commission.  It   was  therefore,  said  that  the  post  of Khandsari Inspector  was within  the purview  of the  Public Service Commission. It was then urged that as the ’Khandsari Licensing  Scheme’  was  to  be  urgently  implemented,  the appointing authority filled-in the posts pending recruitment by the  Public Service  Commission. This  statement  is  not borne out by the record. On May 4, 1960, 9 persons including petitioners Nos.  1 and  2  were  temporarily  appointed  as Licensing Inspectors.  The appointment  order does  not show that  the  appointment  was  pending  selection  of  regular candidates by  the Public  Service Commission. In fact, some confusion in  this behalf  crept in  because a statement was made at  the hearing  of these  petitions that  the post  of Khandsari Inspectors  came within  the purview of the Public Service  Commission   in  1961.  Undoubtedly,  the  post  of Licensing Inspector  was created  in the first instance upto March, 31,  1960. But  it  may  be  mentioned  that  it  has continued  uninterruptedly  till  today  and  has  become  a permanent cadre.  Identical appointment orders was issued in favour of petitioner No. 3 some of the petitioners including petitioners  Nos.  4,  5,  6,  7  and  8  and  some  of  the respondents including  respondents  Nos.  4,  5,  6,  7  and several others  came to  be appointed  by  the  Order  dated March, 23,  1961. (Annexure  ’B’ to  the petition).  In this appointment order  it was clearly stated that ’on the result of the  qualifying test  and interview held for the posts of Khandsari Inspectors  in the  months of February, and March, 1961, the  candidates as  noted in  the  enclosed  list  are temporarily appointed as officiating Khandsari Inspectors in 85 the scale  of Rs.  120-6-210-EB-10-250 plus  usual  dearness allowance per  month subject  to final  selection by  Public Service Commission  at any  later date.’ The recitals in the order do  not spell-out  that the  appointees were  to  hold stop-gap arrangement  till a candidate by the Public Service Commission is  made available. On the contrary, the recitals clearly indicate that those appointees will have to face the approval test  by the  Public  Service  Commission.  Now  if petitioner Nos.  1 and  2 came  to be  appointed in 1960 and respondents 4,  5 and 6 came to be appointed in 1961 and the appointment of each of them had to be approved by the Public Service Commission,  once the  approval is granted, the same will relate  back to  the date of first appointment. That is the meaning  of the  expression in Model No.11; ’or from the date  of  the  order  of  the  first  appointment,  if  such appointment is followed by confirmation.’ It is not disputed that all  the petitioners  except Petitioner 4 were approved by the  Public Service Commission on September, 30, 1963 and yet respondent  No. 7-J.S.  Negi is shown at S. No. 17 while

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petitioner No.  1 who  joined service  on March,  4,1960 and whose appointment  was approved  on the  same day  has  been assigned S.  No. 27  in the  seniority list.  If  the  first appointment  is   made  by   not  following  the  prescribed procedure but  later on the appointee is approved making his appointment regular,  it is  obvious commonsense that in the absence  of  a  contrary  rule,  the  approval  which  means confirmation by  the authority which had the authority power and  jurisdiction  to  make  appointment  or  recommend  for appointment, will  relate back  to the  date on  which first appointment is  made and  the entire service will have to be computed in  reckoning the seniority according to the length of continuous  officiation. That  had not  been done in this case. Therefore,  assuming that  the model principle set out in the  1940  Order  has  a  binding  effect,  the  impugned seniority list  does not conform to the prescribed guideline and would certainly be invalid.      Once it  is shown that the 1940 Order did not prescribe any binding rule or seniority, but it was a model prescribed for adoption  and the  adoption having  not been  shown,  it cannot prescribe  a binding rule of seniority. Assuming that it is  deemed to  have been  adopted the seniority list does not conform to the model as interpreted by us.      Now if  there was  no binding  rule of  seniority it is well-settled   that   length   of   continuous   officiation prescribes a  valid principle  of seniority. The question is from what date the service is to be reckoned ? 86 It was  urged that  any appointment  of a stop-gap nature or pending the selection by Public Service Commission cannot be taken into  account for reckoning seniority. In other words, it was  urged that  to be in the cadre and to enjoy place in the seniority  list, the  service rendered  in a substantive capacity can  alone be  taken into consideration. We find it difficult to accept this bald and wide submission. Each case will depend  upon its facts and circumstances. If a stop-gap appointment is  made and  the appointee  appears before  the Public Service Commission when the latter proceeds to select the candidates  and is selected, we see no justification for ignoring  his  past  service.  At  any  rate,  there  is  no justification for  two persons  selected in  the same manner being differently  treated. That  becomes crystal clear from the place assigned in the seniority list to petitioner No. 1 in relation  to respondent  No. 7.  In fact if once a person appointed in a stop-gap arrangement is confirmed in his post by proper selection, his past service has to be given credit and he  has to  be assigned  seniority accordingly  unless a rule to  the contrary is made. That has not been done in the case of  all the  petitioners. The  error is apparent in the case of  petitioner 1 and respondent No. 7. These errors can be multiplied  but we  consider it  unnecessary to do so. In fact a  fair rule  of seniority  should ordinarily take into account the  past service  in the  stop-gap  arrangement  is followed by  confirmation. This  view which we are taking is borne out  by the  decision of  this Court in Baleshwar Dass and Ors.  etc. v.  State of U.P. and Ors. etc., wherein this Court observed  that the  principle which  has received  the sanction of  this Court’s pronouncement is that ’officiating service in a post for all practical purposes of seniority is as  good   as  service   on  a  regular  basis.  It  may  be permissible,  within   limits  for   government  to   ignore officiating service  and count  only  regular  service  when claims of  seniority come  before it,  provided the rules in that regard  are clear  and categorical  and do not admit of any ambiguity and cruelly arbitrary cut-off of long years of

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service does  not take  place or  there is  functionally and qualitatively,  substantial   difference  in   the   service rendered in  the two  types of  posts.’  It  was  said  that service rules  will have  to be  reasonable,  fair  and  not grossly unjust  if they  are to survive the test of Articles 14 and  16. It  is thus  well-settled that where officiating appointment is  followed by  confirmation unless  a contrary rule  is   shown,  the   service  rendered   as  officiating appointment  cannot  be  ignored  for  reckoning  length  of continuous officiation  for determining  the  place  in  the seniority list.  Admittedly, that  has not been done and the seniority list is drawn 87 up from the date on which the approval/selection was made by the Public  Service Commission  in respect of each member of the service,  which is clearly violative of Art. 16, and any seniority list  drawn up  on  this  invalid  basis  must  be quashed.      A grievance  was made  that the  petitioners have moved this Court  after a  long unexplained  delay and  the  Court should not grant any relief to them. It was pointed out that the provisional  seniority list  was drawn  up on March, 22, 1971 and the petitions have been filed in the year 1983. The respondents therefore submitted that the court should throw- out the  petitions on  the  ground  of  delay,  latches  and acquiescence. It  was said  that promotions  granted on  the basis of  impugned seniority list were not questioned by the petitioners and  they have  acquiesced into  it. We  are not disposed to  accede to this request because respondents 1 to 3 have not finalised the seniority list for a period of more than 12  years  and  are  operating  the  same  for  further promotion to  the utter  disadvantage  of  the  petitioners. Petitioners   went    on   making    representations   after representations which  did not  yield any response, reply or relief. Coupled  with this  is the fact that the petitioners belong to  the lower  echelons of  service  and  it  is  not difficult to  visualise that  they  may  find  it  extremely difficult to  rush to  the Court.  Therefore, the contention must be rejected.      In view  of the discussion, these petitions succeed and are allowed and a writ in the nature of certiorari is issued quashing the impugned seniority list dated March 22, 1971 in respect of  Khandsari Inspectors. The respondents 1 to 3 are directed to  draw-up a  fresh seniority  list based  on  the principle of  length of continuous officiation reckoned from the date of first appointment if the appointment is followed by confirmation  i.e. selection/approval by the State Public Service  Commission.   We  order  accordingly,  but  in  the circumstances of  the case,  there will  be no  order as  to costs. N.V.K.                                    Petitions allowed. 88