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PETITIONER: K.R. MUDGAL & ORS.

       Vs.

RESPONDENT: R.P. SINGH & ORS.

DATE OF JUDGMENT30/09/1986

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) REDDY, O. CHINNAPPA (J)

CITATION:  1986 AIR 2086            1986 SCR  (3) 993  1986 SCC  (4) 531        JT 1986   597  1986 SCALE  (2)561  CITATOR INFO :  RF         1988 SC 268  (16)  RF         1988 SC 268  (30)  RF         1991 SC1872  (15)

ACT:      Civil Services.      Seniority  list-Fixation   of  seniority-Necessity  for aggrieved officials to approach Court at the earliest.

HEADNOTE:      The Ministry  of Home  Affairs by its Office Memorandum dated 14th  May, 1940  laid down  that if a vacancy arose in the cycle  meant for  a direct  recruit, the  direct recruit would rank senior to the departmental candidates even though the direct  recruit joined  the post  after the departmental candidate had been promoted and confirmed. This principle of fixation of  seniority was subsequently superseded by Office Memorandum dated  22nd June  1949, which  provided that  the seniority would  be determined on the basis of the length of service. Another  Office Memorandum issued on 22nd December, 1959, in  supersession of  the 1949  Office Memorandum  laid down that  the seniority was to be fixed on the basis of the date of confirmation.      Some of  the officials, who had been directly appointed as Assistants  in a department of the Government of India in the year  1957, filed  a writ  petition in the High Court in the year  1976 questioning  the validity of the appointments of certain  other  Assistants  who  had  been  appointed  or absorbed as  Assistants prior  to the  induction of the writ petitioners  into   service  as  Assistants,  and  also  the assisgnment  of   seniority  to  them  over  and  above  the petitioners.      The first  draft seniority  list of  the Assistants  in that department was issued in 1958 on the basis of length of continuous  service   placing   the   officials   who   were respondents to  the writ petition above the petitioners, and was duly  circulated. No  objections were  received from the writ petitioners  against the  seniority assigned to them in the said  seniority list.  Subsequently, the seniority lists in the  Grade of  Assistants were  again issued  in 1961 and 1965 but  again  no  objections  were  raised  by  the  writ

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petitioners. 994      On  the   basis  of  the  1959  Office  Memorandum  the seniroity list,  as maintained in the department up to 1965, was revised  in March,  1968. In  the revised seniority list the  writ   petitioners  became   senior  to   many  of  the departmental Assistants, who had a longer length of service, but for  one reason  or the  other had not been confirmed in the post  or were  confirmed after  the confirmation  of the writ petitioners.  Consequent to  the decision of this Court in Union  of India  v. M.  Ravi Verma, [1972] 2 SCR 992, the said seniority  list was  again revised  in  the  year  1976 resulting in  the respondents in the writ petition, who were governed by  the 1949  Office  Memorandum,  being  shown  as seniors to the petitioners.      The  petitioners   questioned  the   validity  of   the seniority list  published in  1976. The  respondents in  the writ petition  raised a  preliminary objection  to the  writ petition stating  that it  was liable to be dismissed on the ground of  laches. The  writ petition  was dismissed  by the Single  Judge.  The  Letters  Patent  appeal  filed  by  the petitoners was,  however, allowed  by  the  Division  Bench, without adverting  to the  ground of  delay.  The  ancillary directions given by the Court resulted in the disturbance of the seniority  of the  above said  respondents, who had been working in  the department  and on  the date of the judgment had put  in  more  than  twenty-five  years  of  service  as Assistants.      Allowing the  appeals by  special leave  filed  by  the Union of  India as  well as  the  officials,  who  had  been appointed prior  to the  date on  which the writ petitioners were appointed, the Court, ^      HELD:  The  High  Court  was  wrong  in  rejecting  the preliminary objection raised on behalf of the respondents to the writ petition on the ground of laches. [1000E-F]      It is essential that any one who feels aggrieved by the seniority assigned to him should approach the court as early as possible,  as otherwise  in addition to the creation of a sense of  insecurity in the minds of the Government servants there  would   also  be   administrative  complications  and difficulties. [1000D-E]      Satisfactory service  conditions postulate  that  there should be  no sense  of uncertainty  amongst the  Government servants created  by the  writ petitions filed after several years. A  Government servant  who is  appointed to  any post ordinarily should at least after a period of 3 or 4 years of his appointment  be allowed to attend to the duties attached to his  post peacefully and without any sense of insecurity. [1000C; 996D-E] 995      The respondent-petitioners  should have in the ordinary course questioned  the principle  on the  basis of which the seniority lists were being issued from time to time from the year 1958  and the  promotions which  were being made on the basis of  the said  lists within  a reasonable time. For the first time they filed the writ petition in the High Court in the  year  1976  nearly  18  years  after  the  first  draft seniority  list   was  published   in  the  year  1958.  The appellants have been put to the necessity of defending their appointments as  well as  their seniority after nearly three decades. This  kind  of  fruitless  and  harmful  litigation should be discouraged. [1000B-C; 996 E-F]      All  the  promotions  made  in  the  department  to  be reviewed in  accordance with  the impugned seniority list of

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1976. [1001G]      R.S. Makashi  & Ors. v. I.M. Menon & Ors., [1982] 2 SCR 69 and  Maloon Lawrence  Cecil D’Souza  v. Union  of India & Ors., [1975] Supp. SCR 409, referred to.

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2925-26 of 1981      From the  Judgment and  Order dated 19th December, 1980 of the  Delhi High  Court in  Letter Patent  Appeal No. 6 of 1978.      M.K. Ramamurthi and P.P. Singh for the Appellants.      R.K. Garg,  P.H. Parekh  and C.V.  Subba  Rao  for  the Respondents.      The Judgement of the Court was delivered by      VENKATARAMIAH, J.  Some of  the officials  who had been directly appointed  as Assistants in the Intelligence Bureau of the  Government of  India in  the year  1957 filed a writ petition in  the year 1976 in Civil Writ Petition No. 638 of 1976 on  the file of the High Court of Delhi questioning the validity of  the appointments of certain other Assistants in the Intelligence  Bureau of  whom some  had  been  appointed prior to  1.2.1954 and  the remaining  had been appointed or absorbed as  Assistants prior  to the  induction of the writ petitioners  into   service  as   Assistants  and  also  the assignment  of   seniority  to   them  over  and  above  the petitioners in the Writ Petition. The said Writ Petition was dismissed by the learned Single Judge. Aggrieved by the 996 decision of the learned Single Judge, the petitioners in the writ petition  filed an  appeal in the Letters Patent Appeal No. 6 of 1978 before a Division Bench of the High Court. The Division Bench allowed the appeal, set aside the judgment of the  learned  Single  Judge  and  held  that  the  posts  of Assistants which  existed on  1.2.1954 had  to be  filled by persons who  were eligible  in terms  of Paragraph 15 of the reorganisation Scheme  of 1955  effective from  1.2.1954 and that there  was infringement of the terms of Paragraph 15 in their  cases.  The  Division  Bench  also  gave  some  other ancillary directions  resulting in  the disturbance  of  the seniority of  the respondents  who had  been working  in the Intelligence Bureau.  By the  date of  the said judgment the said respondents had put in more than 25 years of service as Assistants in  the Intelligence  Bureau.  Aggrieved  by  the decision of  the Division  Bench, the Union of India as well as the  officials, who  had been appointed prior to the date on which  the writ  petitioners were  appointed  have  filed these two appeals by special leave.      At  the   outset  it   should  be  stated  that  it  is distressing to  see  that  cases  of  this  kind  where  the validity of  the appointments  of the officials who had been appointed more  than 32  years age  is questioned  are still being agitated in courts of law. A Government servant who is appointed to  any post  ordinarily should  at least  after a period of  3 or  4 years  of his  appointment be  allowed to attend to  the duties  attached to  his post  peacefully and without any  sense of  insecurity. It is unfortunate that in this case the officials who are appellants before this Court have  been   put  to   the  necessity   of  defending  their appointments as  well as  their seniority after nearly three decades. This  kind  of  fruitless  and  harmful  litigation should be discouraged.      The ministerial  posts in  the Intelligence Bureau were

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reorganised with  effect from 1.2.1954 vide Ministry of Home Affairs  Letter  No.  40/154/49-P.III  dated  17.9.1955.  In accordance with  the said  Scheme the Ministerial Duty Posts were reorganised into following three categories:           Category A-Administrative Officer and the                      Assistant Director (Non-Police)           Category B-Superintendents and Assistant                      Superintendents           Categoty C-Assistants. 997      All Duty  Posts in  Category ’C’  were required by that Scheme to be filled by Assistants or U.D.Cs placed in charge of such  posts. The  posts of  Assistants were classified as belonging to  Grade IV  in the  Intelligence Bureau Service. The mode  of initial  constitution of Grade IV, confirmation of the  existing Assistants called ’departmental candidates’ at the  initial stage and the future recruitment to Grade IV consisting of Assistants were regulated by Paragraphs 15 and 16  of  the  said  Scheme.  The  principle  of  fixation  of seniority as  laid down  in the  Ministry  of  Home  Affairs Office Memorandum  No. 20/1/40-Ests(S)  dated 14.5.1940  was that if  a vacancy  arose in  the cycle  meant for  a direct recruit,  the  direct  recruit  would  rank  senior  to  the departmental candidate even though the direct recruit joined the post after the departmental candidates had been promoted and confirmed.  This principle  of fixation of seniority was subsequently superseded  by the  Ministry  of  Home  Affairs Office Memorandum No. 30/44/48-Apptts, dated 22.6.1949 which provided that the seniority would be determined on the basis of the  length of service. Prior to the reorganisation which came into  force with  effect from 1.2.1954 the seniority of Assistants in the Intelligence Bureau was fixed on the basis of the 1949 Office Memorandum.      Before the  reorganisation of  the Intelligence  Bureau the direct  recruitment of  Assistants in  the  Intelligence Bureau   was   made   through   the   Employment   Exchange, advertisements  and  by  inviting  applications  of  persons working in other Ministries etc. The Intelligence Bureau was exempted from  making recruitment  to its  ministerial posts through the  Union Public  Service Commission  in accordance with the  Government orders  issued from  time to  time.  No direct recruitment was made through the Union Public Service Commission. It  was only  after the  reorganisation  of  the ministerial posts  in the Intelligence Bureau that the Union Government  was  required  to  make  direct  recruitment  of Assistants in  the ratio  of 85%  through the  Union  Public Service Commission  and 15%  by promotion of U.D.Cs in terms of the  said  Scheme.  The  Intelligence  Bureau  was  again exempted from  the  purview  of  the  Union  Public  Service Commission since  1969 and  now we are told that it conducts its own  examination for  making recruitment  of  Assistants directly.      The officials who were shown as Respondent Nos. 3 to 9, 12 to  31 and  42 to 49 in the Writ Petition were working as Assistants on 1.2.1954, i.e., the date of the reorganisation of  the   ministerial  posts  in  the  Intelligence  Bureau. Respondent Nos. 10 and 11 in the Writ Peti- 998 tion were appointed as direct recruits through other sources before the  Intelligence Bureau  Ministerial  Reorganisation Scheme was issued on 17.8.1955. Respondent Nos. 32 to 41, 50 and 51  are those  officers who were promoted from the posts of U.D.Cs  to the  posts of  Assistants against 15% quota of promotees  prescribed  in  the  reorganisation  scheme.  The petitioners who  had filed  the Writ Petition were, however,

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recruited through  the competitive  examination held  by the Union Public Service Commission in the year 1955 against the 85% quota  of direct  recruitment provided for in the Scheme and they  joined service  in 1957. The first draft seniority list of  the Assistants  was issued  in 1958 on the basis of length of  continuous service placing the officials who were respondents to  the  writ  petition  above  the  petitioners therein  and  was  duly  circulated  .  No  objections  were received from  the writ  petitioners against  the  seniority assigned to  them in  the said seniority list. Subsequently, the seniority  lists in  the Grade  of Assistants were again issued in  1961 and 1965 but again no objections were raised by the writ petitioners except petitioner No. 6 who objected to the  1965 list.  In 1959  the Ministry  of  Home  Affairs issued  another  Office  Memorandum  No.  9/11/55/IPS  dated 22.12.1959 in  supersession of  the 1949  Office  Memorandum laying  down   the  principles  of  fixation  of  seniority. According to  this Memorandum, the seniority was to be fixed on the basis of the date of confirmation as against the 1949 Office Memorandum  which laid down that the seniority should be fixed  in accordance  with the  length of service. On the basis of  the 1959  Office Memorandum  the seniority list as maintained in the Intelligence Bureau up to 1965 was revised in March,  1968. In  the revised  seniority  list  the  writ petitioners became  seniors  to  many  of  the  departmental Assistants (who had been impleaded as respondents) who had a longer length of service but for one reason or the other had not been  confirmed in the said post or were confirmed after the confirmation  of the  writ petitioners.  The 1959 Office Memorandum came  up for  consideration  before  the  Supreme Court in Union of India & Ors. v. M. Ravi Varma & Ors. etc., [1972] 2  S.C.R. 992.  In that decision this Court held that the Office Memorandum dated 22.12.1959 had expressly made it clear that  the general  principles embodied in the annexure thereto were  not to  have any  retrospective effect  and in order to  put the  matter beyond  any pale of controversy it had been  mentioned that  ’hereafter the  seniority  of  all persons appointed  in the various Central Services after the date  of   these  instructions   should  be,  determined  in accordance with  the general  principles annexed hereto’. In accordance with  the above  view this  Court held  that  the seniority of  two of  the respondents  in that  case,  whose seniority was in issue, had to be 999 determined on  the basis  of  their  length  of  service  in accordance with Office Memorandum dated 22.6.1949 and not on the basis of the date of their confirmation because they had been appointed  prior to  22.12.1959. Two of the respondents in the writ petition out of which these appeals arise, i.e., respondent Nos.  7 and  36 had  also filed writ petitions in the High  Court of  Andhra Pradesh challenging the seniority list of Assistants in the Intelligence Bureau which had been issued in  March, 1968. The Andhra Pradesh High Court by its judgment dated  11.11.1974 on  the basis  of the decision in Ravi  Varma’s  case  (supra)  held  that  the  seniority  of respondents 7  and 36  should be  fixed on  the basis of the 1949 Office Memorandum. On the basis of the judgment in Ravi Varma’s case  (supra) and  the decision of the High Court of Andhra Pradesh  referred to above, the seniority list of the Assistants in  the Intelligence Bureau was again revised for correcting the  error committed  earlier and a draft partial seniority list  was issued  on 16.6.1975 proposing to revive the earlier  list dated  22.12.1958. In  this seniority list the respondents  in the  writ petition,  who were working as Assistants at  the  time  of  the  reorganisation  and  were

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governed by the 1949 Office Memorandum were shown as seniors to the  petitioners who  had  filed  the  writ  petition  in accordance with the position in the 1958 seniority list. The petitioners filed  objections to  the said  seniority  list. Their objections  were not accepted and a seniority list was issued in  January, 1976  showing the officials who had been impleaded as  respondents in the writ petition as seniors to the petitioners  in the  writ petition. In the writ petition the  petitioners   questioned  the  validity  of  the  above seniority list published in January, 1976.      The  respondents   in  the   writ  petition   raised  a preliminary objection  to the writ petition stating that the writ petition  was liable  to be  dismissed on the ground of laches. Although  the learned  Single Judge and the Division Bench have  not disposed  of the  above writ petition on the ground of  delay, we  feel that in the circumstances of this case the  writ petition  should have  been rejected  on  the ground of delay alone. The first draft seniority list of the Assistants was  issued in  the year  1958 and  it  was  duly circulated amongst all the concerned officials. In that list the writ  petitioners had  been shown below the respondents. No objections were received from the petitioners against the seniority list. Subsequently, the seniority lists were again issued in  1961 and 1965 but again no objections were raised by the  writ petitioners, to the seniority list of 1961, but only the  petitioner No.  6 in the writ petition represented against  the   seniority  list  of  1965.  We  have  already mentioned that  the 1968  seniority list  in which  the writ petitioners had been 1000 shown  above   the  respondents   had  been   issued  on   a misunderstanding of  the Office  Memorandum of  1959 on  the assumption  that   the  1949   Office  Memorandum   was  not applicable  to  them.  The  June  1975  seniority  list  was prepared having  regard to the decision in Ravi Varma’s case (supra) and the decision of the High Court of Andhra Pradesh in the  writ petitions filed by respondent Nos. 7 and 36 and thus the  mistake that  had crept  into the  1968  list  was rectified. Thus the list was finalised in January, 1976. The petitioners who  filed the  writ petition should have in the ordinary course  questioned the  principle on  the basis  of which the  seniority lists  were being  issued from  time to time from  the year 1958 and the promotions which were being made on  the basis  of the  said lists  within a  reasonable time. For the first time they filed the writ petition in the High Court  in the year 1976 nearly 18 years after the first draft  seniority  list  was  published  in  the  year  1958. Satisfactory service  conditions postulate that there should be no  sense of  uncertainty amongst the Government servants created by  the writ  petitions filed after several years as in this  case. It  is  essential  that  any  one  who  feels aggrieved by  the seniority  assigned to him should approach the court  as early  as possible as otherwise in addition to the creation  of a  sense of  insecurity in the minds of the Government  servants  there  would  also  be  administrative complications and  difficulties. Unfortunately  in this case even  after  nearly  32  years  the  dispute  regarding  the appointement of some of the respondents to the writ petition is still  lingering in this Court. In these circumstances we consider that  the High  Court was  wrong in  rejecting  the preliminary objection raised on behalf of the respondents to the writ petition on the ground of laches. The facts of this case are more or less similar to the facts in R.S. Makashi & Ors.v. I.M.  Menon &  Ors., [1982]  2 S.C.R. 69. In the said decision this Court observed at page 100 thus:

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         "In these circumstances, we consider that the High           Court was  wrong in  over-ruling  the  preliminary           objection raised  by the  respondents  before  it,           that the  writ petition should be dismissed on the           preliminary ground  of delay  and laches, inasmuch           as it seeks to disrupt the vested rights regarding           the  seniority,  rank  and  promotions  which  had           accrued to  a large  number of  respondents during           the period  of eight  years  that  had  intervened           between the passing of the impugned Resolution and           the institution  of the  writ petition.  We  would           accordingly hold  that the challenge raised by the           petitioners against  the seniority principles laid           down in  the Government  Resolution of  March  22,           1968 1001           ought to  have been  rejected by the High Court on           the ground  of  delay  and  laches  and  the  writ           petition in so far as it related to the prayer for           quashing the  said  Government  Resolution  should           have been dismissed."      We  are   in  respectful   agreement  with   the  above observation.      We may also refer here to the weighty observations made by a  Constitution Bench  of this  Court in  Maloon Lawrence Cecil D’Souza  v. Union of India & Ors., [1975] Supp. S.C.R. 409 at page 413-414 which are as follows:           "Although security  of service cannot be used as a           shield against  administrative action for lapse of           a  public   servant,  by  and  large  one  of  the           essential   requirements    of   contentment   and           efficiency in  public services  is  a  feeling  of           security. It  is difficult  to doubt  to guarantee           such security in all its varied aspects. It should           at least  be possible  to ensure that matters like           one’s position  in the seniority list after having           been settled  for once  should not be liable to be           reopened after lapse of many years at the instance           of a  party who  has during the intervening period           chosen to  keep quiet.  Raking up old matters like           seniority after a long time is likely to result in           administrative complications  and difficulties. It           would, therefore,  appear to be in the interest of           smoothness and  efficiency of  service  that  such           matters should  be given  a quietus after lapse of           some time."      We feel  that in  the circumstances  of this  case,  we should not embark upon on and enquiry into the merits of the case and  that the  writ petition should be dismissed on the ground of laches alone.      We accordingly  allow  these  appeals,  set  aside  the judgment of the Division Bench of the High Court and dismiss the writ  petition filed  in the  High Court. We also direct that all the promotions made in the Intelligent Bureau shall be reviewed  in accordance  with the impugned seniority list dated January 28, 1976. There shall be no order as to costs. P.S.S.                                      Appeals allowed. 1002