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PETITIONER: R.S. MAKASHI & ORS.

       Vs.

RESPONDENT: I.M. MENON & ORS.

DATE OF JUDGMENT08/12/1981

BENCH: ERADI, V. BALAKRISHNA (J) BENCH: ERADI, V. BALAKRISHNA (J) KOSHAL, A.D. MISRA, R.B. (J)

CITATION:  1982 AIR  101            1982 SCR  (2)  69  1982 SCC  (1) 379        1981 SCALE  (3)1837  CITATOR INFO :  R          1982 SC1064  (24,33)  R          1986 SC2086  (7)  R          1987 SC2291  (21)  RF         1988 SC 268  (30)  RF         1988 SC 654  (16)  RF         1991 SC1872  (15)

ACT:      Constitution  of  India  Article  309-Proviso-Power  of government to  frame rules  of inter se seniority of persons borrowed from different sources-Explained.      Procedure-Delay of eight years in filing writ petition- Petitioner  seeking  redress  for  alleged  infringement  of fundamental  right-High  Court,  if  could  not  dismiss  on grounds of laches.

HEADNOTE:      To man  the various  posts  in  the  newly  established Bombay Rationing  Organisation (BRO)  the  State  Government sanctioned a  skelton staff.  In addition  to the sanctioned staff,  the   existing  staff   of   the   erstwhile   adhoc organisation of  Controller of  Foodgrains (CFD)  were taken into the  BRO. Since  it was  considered necessary  to  have experienced staff  for  manning  higher  posts  in  the  new Organisation  the   Government  borrowed   the  services  of experienced hands  from other  departments. Since,  as  work expanded, it was found that the number of persons brought on deputation to  fill up all the new posts in the BRO were not enough, some persons were directly recruited into the BRO.      In 1968  the State Government issued, under the proviso to Article  309 of  the Constitution,  the Bombay  Rationing Organisation (Fixation of Seniority) Rules, 1968 laying down the principles  to be  applied for the fixation of seniority of  persons  working  in  the  BRO.  The  rules  were  given retrospective  effect   from  the  date  of  the  Government resolution sanctioning the skelton staff for introduction of statutory rationing.      Rule  4(a)   provided  that  seniority  of  a  released government servant  and a  merged government  servant in the cadre of  senior clerk  etc.,  as  also  a  person  who  was initially appointed  as a clerk etc. in the Bombay Rationing

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Organisation and  subsequently promoted  to the  said  cadre shall be  determined with reference to the dates which shall be fixed  after deducting  two  years  from  the  length  of continuous service.      Clause (c)  of this  rule provided  that  seniority  of government servants  in the  cadre of senior clerks fixed on the basis  of rules (a) and (b) of this rule shall be merged and refixed  with reference  to the  dates from  which their seniority is determined according to the principles in rules 4(a) and (b). 70      The proviso  to rule  7 provided  that where there is a clash of  principles contained  in the government resolution with the  seniority inter  se in the former department shall prevail.      Based on  the principles  laid down  in 1968  Rules the Controller of  Rationing had  drawn up  a gradation  list of Rationing Inspectors,  Senior Clerks  and Deputy Accountants working in  the BRO  as on  April  1,  1968.  The  list  was exhibited on  the notice  board of  the head  office of BRO, regional offices  and Rationing Offices and was communicated to the individual members of the staff.      A final  gradation list  was thereafter  drawn up as on April 1,  1968. Some  time later  on April  9, 1973  another provisional gradation  list as on April 1, 1972 was drawn up and published as before.      Since at  that time  there were many employees who were temporarily  recruited   pending  allotment   of  candidates selected by  the State  Public Service Commission rules were relaxed and  their appointments  were regularised subject to the condition  that seniority  of such non P.S.C. candidates on whom  the benefit of continuance of service was conferred was to  be fixed only with reference to the date of issue of the resolution,  as a result of which candidates selected by the Public Service Commission already working in the various departments were  treated as  seniors in relation to the non P.S.C. persons covered by the resolution.      A provisional  gradation list  as on  April 1, 1974 was published following  the seniority  principles laid  down by the BRO  in 1968  and those  laid  down  in  the  resolution concerning non P.S.C. candidates.      In January  1976, respondents 1 to 22 who were directly recruited in the former CFD but subsequently absorbed in the BRO challenged  in a  writ petition  the validity of the two gradation lists contending that in preparing these lists the normal rule  of fixation  of seniority according to the date of appointment  to the post was given a go-by and that while fixing seniority unequals had been treated as equals in that the service rendered in the clerical cadre had been reckoned and equated  with the  service  rendered  in  the  Rationing Inspectors’ cadre.      The respondents raised a preliminary objection that the petition was  barred by  laches because though the gradation list had  been circulated to all concerned in 1968 itself no objection had  been raised  and no  effective steps had been taken by  the petitioners  to challenge  the validity of the principles laid  down in  the government resolution and that after a  lapse of  8 years  it was not open to them to raise the challenge against the gradation list and try to unsettle a settled  principle; (2)  in view  of the fact that persons from  various   departments  had   been  recruited,  it  was necessary to  evolve some fair and reasonable principles for the  fixation  of  inter  se  seniority  of  the  integrated personnel in the different categories.      A single  Judge of  the High  Court struck down clauses

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(a) and  (c) of  rule 4  and the  proviso to  rule 7  of the government Order dated March 22, 1968 as 71 being violative  of Articles  14 and  16 of the Constitution and directed  the State Government to prepare fresh lists of seniority without  taking into  consideration the provisions struck down  by him.  On the  question of  laches the Single Judge held  that the  law did not lay down any obligation on the Court to refuse to grant relief merely because there was a lapse of time but that since the cause of action arose and the challenge  was based  on infringement of Articles 14 and 16 of  the Constitution,  the Court  could not  shut out the petitioners on  the ground  of laches  because such a course would amount to condoning the invalid rules.      The Division  Bench  dismissed  in  limine  the  appeal preferred by the respondents in the writ petition.      Allowing the appeal, ^      HELD: The  High Court was wrong in holding that clauses (a) and  (c) of  rule 4  and the  proviso to  rule 7  of the government resolution  dated March 22, 1968 are violative of Articles 14  and 16 of the constitution and in directing the State Government  to prepare  a fresh seniority list without taking into consideration these provisions. [90 B-C]      Assuming that  the principles for determining the inter se  seniority   of  persons   appointed  in   the  different categories of  the newly  constituted BRO  laid down  in the government resolution  of March  22, 1968  were not known to the members  of the  staff immediately  after the resolution was passed  by the  State Government a Provisional Gradation List of  Rationing Inspectors etc. as on 1st April, 1968 was drawn up  in implementation  of these principles on 28th May 1971 and  the said  list was circulated to all the personnel working in  the establishment  of the BRO. Neither after the publication of  the provisional  gradation list  on May  28, 1971  which   was  followed   up  by   the  publication  and circularisation of  a final  gradation list  on November 23, 1972, nor  even after  the gradation  list was  revised  and published on  April 9,  1973, did  the writ petitioners file any objections  against their  ranking  in  those  gradation lists, within the time allowed. [90 F-H]      Even in  the belated  representations filed  by some of the writ  petitioners no  objection was  raised against  the principles for  determination of seniority enunciated in the government resolution  of 1968,  nor was  there any  protest whatsoever against  the provision made in the resolution for fixation of  seniority of  released government servants. Nor again  when  their  representations  were  rejected  by  the government    did     the    petitioners    challenge    the constitutionality of  the rules  contained in  the  impugned resolution. [92 D-E]      The government  resolution in regard to the position of non P.S.C.  candidates vis  a vis  the P.S.C. candidates did not in  any way  affect the  inter se  seniority between the petitioners and  the released government servants drafted to the  BRO   because  that  resolution  was  a  general  order applicable to  all the non P.S.C. personnel functioning on a temporary or  ad hoc basis in the various departments of the State Government. [93 E-F] 72      There  is   no  substance  in  the  contention  of  the petitioners that  they stood  on  a  separate  and  superior footing  for   the  purpose   of  seniority   in   the   new organisation. The  staff in  the new  organisation was drawn from four different sources and this inevitably necessitated

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the   formulation   of   reasonable   principles   for   the determination  of   inter  se  seniority.  At  the  time  of formation of  the BRO  the petitioners  were not holding any substantive or  regular appointments in the CFD which itself was  a   mere  temporary   department.   In   contrast   the deputationists (released  government servants)  were regular hands recruited  by the  Public Service  Commission and they were  holding   posts  on   a  substantive  basis  in  other departments.  The   principles  of   equation  evolved   for determining the  inter se seniority could not be regarded as arbitrary or unreasonable viewed in the context that the CFD candidates  were  merely  temporary  hands  in  a  temporary department. [101 E-H]      It is  not an  invariable rule that seniority should be determined only  on the  basis of  the respective  dates  of appointment to the post and that any departure from it would be unreasonable  and illegal.  It is open to the rule making authority to  take a  note  of  the  relevant  circumstances obtaining in  relation  to  each  department  and  determine objectively the  rules  that  should  govern  the  inter  se seniority and ranking. Such rules should be reasonable, just and equitable. [102 F-G]      In the  instant case  the action  of the  Government in determining the  inter se  seniority of  clerical  personnel under  rule   4(a)  cannot   be  said   to  be  in  any  way discriminatory or illegal.      S.G. Jaisinghani  v. Union  of India  & Ors.,  [1967] 2 S.C.R. 703;  Bishan Sarup  Gupta v.  Union of  India & Ors., [1975] 1 S.C.R. 104 at p. 114, referred to.      When personnel  drawn from different sources were being absorbed and integrated in a new department it was primarily for the  government to  decide as a matter of policy how the equation of  posts should  be  effected,  Courts  would  not interfere with  such a  decision unless  it is  shown to  be unreasonable or unfair. [104 E]      All that the proviso to rule 7 does is to state that in respect to  persons drafted  into the  CFD from  one and the same government  department on  deputation basis their inter se  seniority   in  the  former  department  should  not  be disturbed and to that extent a deviation should be made from the principles  laid down  in the  government resolution  of April 1,  1963. This  proviso contains  a just and wholesome principle commonly  applied in such situations and it cannot be said  to be arbitrary or unreasonable. The High Court was in error  in striking  down the  rule as  being violative of Articles 14 and 16 of the Constitution.      [105 E-H]      The object  of clause  (b) of  rule 7 is limited to the preservation and  maintenance of  the pre-existing  inter se seniority  as   between  CFD   personnel  even  after  their absorption in the BRO and this provision does not in any way hamper the  operation of  the principle  laid down in rule 4 for the fixation of seniority of all the personnel including the merged  government servants in the respective categories of BRO. [106 D-E] 73      The view  of the  single Judge  that a  petition  under Article 226  seeking redress  for  alleged  infringement  of fundamental rights  could not  be dismissed on the ground of laches under  any circumstances  is  inconsistent  with  the pronouncements of  this Court on the subject. The High Court was wrong  in over-ruling the preliminary objection based on delay and laches. [94 B-C]      Tilokchand Motichand  and Ors.  v. H.B. Munshi and Anr. [1969] 2  S.C.R. 824 at pp. 805, 836, 853-855, Rabindra Nath

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Bose and Ors. v. Union of India and Ors. [1970] 2 S.C.R. 697 at pp.  711-712; Malcom  Lawrence Cecil  D’Souza v. Union of India and Ors. [1976] 1 S.C.C. 599 at p. 602; S.S. Moghe and Ors. v.  Union of  India and  Ors. [1981] 3 S.C.C. 271 at p. 292, referred to.      The petitioners  had ample  opportunities to file their objections to  the gradation  list but  they failed to avail those  opportunities.  They  had  not  furnished  any  valid explanation whatsoever  for the  inordinate delay  on  their part in approaching the Court with the challenge against the principles of seniority laid down in the resolution of 1968. The single  Judge was  in error in thinking that the passing of the government resolution of 1974 furnished a fresh cause of  action   for  the   petitioners  for   agitating   their contentions  regarding   the  validity   of  the  government resolution of 1968. [99 B-F]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1003 of 1980.      Appeal by  special leave  from the  judgment and  order dated the 3rd March, 1980 of the Bombay High Court in Appeal No. 106 of 1980.      V.M. Tarkunde,  P.H. Parekh  and Miss  Vineeta Caprihan for the Appellants.      K.K. Singhvi,  Brij Bhushan,  N.P.  Mahindra  and  A.K. Gupta, for Respondents Nos. 1, 2, and 3.      V.B. Desai, R.H. Dhebar and R.N. Poddar for Respondent- State.      The Judgment of the Court was delivered by      BALAKRISHNA ERADI,  J. The second world war left in its wake  conditions   of  scarcity   of  foodgrains  and  other essential commodities  in different parts of the country. To tide over  that situation  and with  intent to ensure a fair and  equitable  distribution  of  the  available  supply  of foodgrains etc.,  schemes of  rationing of  foodgrains  were periodically introduced  in  the  different  States  in  the country. 74      In the  State of  Bombay, an  informal  (non-statutory) scheme of rationing was introduced in November, 1957 and for administering the  said scheme,  an ad  hoc Organisation was set up  under the  Controller  of  Foodgrains  Distribution. Since this Organisation (hereinafter referred to as CFD) was intended to  be only  a temporary  and short-term set up, no recruitment rules were framed for appointment to the various categories of  posts created  therein. The  CFD  was  manned principally by  (1) personnel  who had  been working  in the temporary  Civil  Supplies  Department  created  during  the second world  war period  and who  were attending to certain residual duties  concerned  with  the  winding  up  of  that department, (2)  persons  taken  on  deputation  from  other Government departments  (3) retrenched  former Civil  Supply Department personnel,  and (4) persons directly recruited to the CFD  by the  Controller of  Foodgrains  Distribution  on temporary basis  through the  Employment Exchange.  Since no rules had  been framed  laying down  the  qualifications  or method of  recruitment to  the various  posts,  the  guiding factor which  seems to  have weighed with the authorities in effecting appointments in the CFD was the suitability of the person concerned  to carry  out the  duties  attached  to  a particular post  irrespective of  qualifications, age,  etc. Admittedly, amongst  the persons appointed to the CFD, there

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were several  non-matriculates who were ineligible under the prevailing rules  applicable to other Government Departments for regular  appointment into  the Government service in the clerical category  and also  quite a  few persons  who  were over-aged for being entertained in the Government service as on the dates of their ad hoc appointments into the CFD.      The principles  to be observed for fixing the seniority of the  personnel appointed to the CFD were laid down by the State Government  by a Resolution dated April 1, 1963. Under the said  Resolution, the  seniority of  personnel  in  each category was  to be determined with reference to the date of first appointment in the particular cadre in which they were initially appointed in the CFD.      In  July   1965,  the   Government  of   India   issued instructions to  all the  State Governments advising them to start statutory  rationing schemes in metropolitan areas and big towns.  With a  view to  implement those instructions of the Central  Government, the State Government of Maharashtra sanctioned on  October 21, 1965 a skeleton staff for working out details  and carrying out other preliminary work for the introduction of  a scheme  of statutory rationing in Greater Bombay. 75      Subsequently, by  a Resolution dated February 11, 1966, the Government  of Maharashtra  announced  its  decision  to introduce a  statutory rationing  scheme in  Bombay and  the Industrial Complex  around it  including some areas of Thana District and  to set up an organisation under the Controller of Rationing, Bombay, for efficiently administering the said statutory scheme.  The strength  and patten of the staff for the Bombay Rationing Organisation (for short, the BRO) which was newly  created under  the said  Resolution was  to be as shown in  Annexure  ’A’  appended  to  the  Resolution.  The skeleton  staff   which  had  been  already  sanctioned  for carrying  out   the  preliminary   work  as  per  the  prior Government Resolution  dated October  21,  1965  was  to  be treated as  belonging to  the BRO. The existing staff of the CFD consisting  of 884 posts as shown in Annexure ’B’ to the aforesaid Resolution  was to be merged into the new BRO with effect from  March 1,  1966, excepting  9 posts of part-time Mehtars, which  were to  be abolished  with effect  from the said  date.   In  addition,   2818  posts  in  23  different categories  were   also  created  in  the  BRO  as  per  the particulars  shown   in  Annexure   ’C’  to   the  aforesaid Resolution. Out  of these,  1220 newly created posts were in the category  of Rationing  Inspectors and 165 posts were of Senior Clerks.      Since it  was considered  necessary to have experienced staff for  manning the higher posts in the new Organisation, it was  decided to  obtain the services of experienced hands from other departments on deputation. Accordingly, the Chief Secretary to  the  Government  of  Maharashtra  addressed  a letter dated  February 22, 1968 to all, Heads of Departments stating that  huge staff  was required for manning the posts in the  newly created  BRO, that  for the  higher  posts  of Assistant Rationing Officers/Inspecting Officers/Head Clerks and Rationing  Officers/Senior  Clerks,  it  was  absolutely necessary  to  draw  upon  senior  and  experienced  persons already working  in  other  Government  offices  in  Greater Bombay and  hence  the  Government  had  decided  that  each department should  immediately  on  receipt  of  the  letter release the  requisite number of persons under intimation to the Controller of Rationing, Bombay and instruct the persons concerned to report for duty to him. It was further mentioned in the letter that for the posts of

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Assistant Rationing  Officers, persons  who had  put  in  at least two  years’ service in a scale comparable to the scale of Rs. 200-10-300 would be considered and that for the posts of Rationing Inspectors/Senior Clerks, Clerks who had put in at least two years’ service would be 76 considered. In  compliance with  the directions contained in the said  letter, a large number of personnel from different departments of  the State  Government of  Maharashtra in the Greater Bombay  area were sent over to the BRO on deputation and they  were appointed to posts in different categories in the new Organisation (B.R.O.) Apparently for the reason that the number  of persons  so obtained  on deputation  was  not adequate to  fill up  all the  new posts  in the  BRO,  some persons  were   also  directly   recruited  into   the  said Organisation subsequent to March 1, 1966.      As an essential preliminary step for the integration of the former CFD personnel with the staff appointed in the BRO from other  sources, the  Controller  of  Rationing,  Bombay published on  29.8.1966 a  provisional Gradation List of the CFD personnel  as on  March 1,  1966. Subsequently, on March 22, 1968,  the Government  of Maharashtra issued the "Bombay Rationing Organisation (Fixation of Seniority) Rules, 1968", laying down the principles to be applied for the fixation of seniority of  the persons  working in  the BRO.  These rules were  issued  under  the  proviso  to  Article  309  of  the Constitution and  they were  given retrospective effect from October 21,  1965 (the  date of  the  Government  Resolution sanctioning  the   skeleton  staff   for  carrying  out  the preliminary work for introduction of the scheme of statutory rationing). The personnel released from other departments of the  State   Government  for  work  in  the  BRO,  including retrenched or  replaced  Government  servants  who  had  not suffered any  break in  service before  joining the BRO were designated  under   these  Rules   as  "Released  Government Servants".  Rule  4  which  lays  down  the  principles  for fixation of  seniority of  persons in  the cadre  of  Senior Clerks/Rationing Inspectors/Deputy  Accountants  is  in  the following terms:           "Senior     Clerks/Rationing     Inspectors/Deputy      Accountants.      (a)  Seniority of  a released  Government Servant and a           Merged Government  Servant in  the cadre of senior           clerk, Rationing Inspector and Deputy Accountants,           as also  a person who was initially appointed as a           clerk, or Typist or Clerk-cum-Typist in the Bombay           Rationing Organisation  and subsequently  promoted           in  the   said  cadre  shall  be  determined  with           reference to  dates which  shall  be  fixed  after           deducting two  years from the length of continuous           service, whether officiat- 77           ing or  permanent rendered  by him in the cadre of           clerks, typists, and clerk-cum-typist.      Illustration:-           Suppose there  are three  persons in  the cadre of      Senior   Clerks/Rationing    Inspectors   and    Deputy      Accountants, ’A’  a  released  Government  servant  was      holding the post of clerk continuously from 1st October      1960 prior  to his  release, ’B’  a  merged  Government      Servant was  holding the  post of  typist  continuously      from 1st  May, 1958.  ’C’ was  appointed  as  a  direct      recruit to  the post  of clerk  in the Bombay Rationing      Organisation on  1st May,  1966  and  was  subsequently      promoted  as  Senior  Clerk  on  22nd  May,  1968.  The

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    seniority amongst them will be fixed as under:- ___________________________________________________________ Seniority   Name    Date of commence-       Deemed date of rank.               ment of continuous      appointment for                     service as Clerk.       fixation of                                             seniority. ___________________________________________________________  1.           2.            3.                    4. ___________________________________________________________  1.           B           1.5.1958           1.5.1960  2.           A           1.10.1960          1.10.1962  3.           C           1.5.1966           1.5.1968 ___________________________________________________________           Provided that  in the  case of  merged  Government      servant  who  was  recruited  to  the  post  of  Supply      Inspector or Senior Clerk, by nomination, he shall take      rank  above   a  clerk   in   the   former   Foodgrains      Distribution Scheme  who was  promoted to  the cadre of      Supply  Inspector   or  Senior  Clerk,  in  the  former      Foodgrains Distribution  Scheme immediately,  after him      and if this be not the position, above the first person      in the  cadre of  clerks belonging to that organisation      who is  posted in the cadre of Senior Clerks, Rationing      Inspectors and  Deputy Accountants  on  and  after  1st      March 1966. 78      Illustration:-           Suppose there  are four  persons in  the cadre  of      Senior  Clerks,   Rationing   Inspectors   and   Deputy      Accountants. All  of them were in the Bombay Foodgrains      Distribution Scheme.  ’A’ was a clerk in the Scheme and      he was  promoted to  the post  of Supply Inspector with      effect  from   1st  May   1960  and   since  then   was      continuously officiating  in the post. ’B’ and ’C’ were      recruited as  Supply Inspectors  by nomination and were      officiating continuously  in that post from 15th April,      1960 and  15th April,  1965. None of the Clerks in that      scheme was  promoted after  ’C’ till  the merger of the      staff in  the Bombay  Rationing Organisation. ’D’ was a      Clerk and  he was  promoted as Senior Clerk with effect      from 15th  April 1966 i.e. after merger of the staff in      the  Bombay  Rationing  Organisation.  Their  seniority      amongst them will be as under:-           _____________________________________________           Seniority rank                      Name           _____________________________________________                1                              B                2                              A                3                              C                4                              D           _________________________________________________      (b)  Seniority of a Government servant appointed in the           Bombay   Rationing    Organisation    by    direct           requirement  to   the  cadre   of  Senior  Clerks,           Rationing Inspectors  and Deputy Accountants shall           be  fixed   with  reference   to  the   dates   of           appointments to the posts in the said cadres:      Illustration:           Suppose there  are three  persons in  the cadre of      Senior  Clerks,   Rationing   Inspectors   and   Deputy      Accountants  who   were  recruited   to  the  cadre  by      nomination. ’A’  was recruited  as Rationing  Inspector      from 24th  February 1966.  ’B’ was  recruited as Senior      Clerk from 15th March 1966. ’C’ was recruited as Deputy      Accountant, from 28th

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79      February, 1966.  The seniority  amongst  them  will  be      fixed as under:- ___________________________________________________________ Seniority                             Date of commencement rank.               Name              of continuous service. ___________________________________________________________    1.               2.                           3. ___________________________________________________________    1.               A                          24.2.1966    2.               C                          28.2.1966    3.               B                          15.3.1966 ___________________________________________________________      (c)  Seniority of  Government servant  in the  cadre of           Senior Clerks,  Rationing  Inspectors  and  Deputy           Accountants fixed on the basis of the rules in (a)           and (b)  above, shall  be merged  and refixed with           reference to  the dates from which their seniority           is determined  according to  the principles in the           rules 4 (a) and 4 (b) above.      Illustration:-           Suppose there are 7 persons in the cadre of Senior      Clerks, Rationing  Inspectors, Deputy  Accountants. ’A’      and ’B’  were Supply  Inspectors directly  recruited in      the Bombay  Foodgrains  Distribution  Scheme  and  were      continuously officiating  in those  posts from 4th May,      1963 and  1st May 1963 respectively. ’C’ was a Clerk in      the former  Bombay Foodgrains  Distribution Scheme from      1st September 1960. He was promoted as Supply Inspector      on  5th  May,  1963.  ’D’  was  a  Rationing  Inspector      directly recruited  to it  from 2nd February, 1966. ’E’      was a  released Government  servant holding the post of      Clerk in the former office from 1st August 1960. He was      taken up  as Senior Clerk from 2nd August, 1967, in the      Bombay  Rationing  Organisation.  ’F’  was  a  released      Government servant  holding the  post of a clerk in his      former office  from 1st February, 1964. He was taken up      as Rationing  Inspector on  1st August  1967. ’G’ was a      released Government servant holding the post of a clerk      in his former 80      office from  1st December  1964. He  was taken  up as a      clerk in  Bombay Rationing Organisation subsequently he      was promoted  as Rationing  Inspector from  1st  April,      1967. The seniority amongst them will be as under t- ___________________________________________________________ Senio-  Name  Mode               Actual date          DEEMED rity                            ------------------ rank.                                    As Clerk  As Sr.Cl.                                          /R.I./                                          Dy.Acctt. ___________________________________________________________ 1.     2.    3.             4.(a)        4.(b)         5. ___________________________________________________________ 1.    E    Promoted clerk    1.8.60     2.8.67      1.3.62            (released) 2.    B    Direct S.I.       -           1.5.63     31.8.62 3.    A     -do-             -           4.5.63     31.8.62 4.    C    Promoted Ex.            CFD Clerk         1.9.60      5.5.63     1.9.62 5.    F    Promoted Clerk            (released)        1.2.64       1.8.67    1.2.66 6.    D    Direct Ration-            ing Inspector.      -          2.2.66    2.2.66 7.    G    Released Clerk

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          absorbed in            Bombay Ration-            ing Area Or-            ganisation as            Clerk and sub-            sequently pro-            moted as            Rationing            Inspector."         1.12.64      1.4.67   1.12.66 ___________________________________________________________           However, it was further provided under Rule 7 that      "notwithstanding anything  contained in  the  foregoing      Rules: 81      (a)  In case  of Government  servants released from one           and the  same office  to join the Bombay Rationing           organisation  the  seniority  inter  se  in  their           former office shall not be disturbed;      (b)  in case  of the  merged Government  servants, they           shall be  governed by  the principles contained in           the Government  Resolution,  Agriculture  and  Co-           operation Department No. EST-1060/40002/SlV, dated           the 1st April 1963; and      (c)  in case of-           (i)  those who  were  recruited  directly  in  the                former Bombay  Foodgrains Distribution Scheme                shall be governed by the principles contained                in the  Government Resolution No. Agriculture                and  Cooperation   Department   No.   EST   l                1060/40002/ SIV dated the 1st April, 1963;           (ii) those who were drawn in the Bombay Foodgrains                Distribution Scheme  from one  and  the  same                Government office/Department shall take their                rank according  to seniority  inter se in the                office/department from which they were drawn.           Provided  further   where  there  is  a  clash  of      principles  contained   in  the  Government  Resolution      Agriculture  and   Cooperation   Department   No.   EST      1060/40002/SIV, dated  the 1st  April,  1963  with  the      seniority  inter   se  in  the  former  Department  the      seniority inter  se  in  the  former  Department  shall      prevail.      Illustration:-           ’A’ who started his career as Assistant in Revenue      and Forests  Department from  1st May 1962 was drawn in      Bombay Foodgrains  Distribution Scheme on 18th October,      1964 and  was taken  up as  Inspecting officer,  ’B’ an      Assistant in  Revenue and Forests Department working in      that cadre continuously from 1st May, 1961 was released      to join  Bombay Rationing  organisation on 22nd August,      1966 as  Inspecting officer. ’C’ who started his career      as Assistant  in General Administration Department from      1st 82      April 1960  was drawn in Bombay Foodgrains Distribution      Scheme on  18th May, 1965 as Inspecting officer. ’D’ as      Assistant in  General Administration Department working      in that  cadre continuously  from  1st  May,  1960  was      released to  join Bombay  Rationing organisation on 1st      July 1967 as Inspecting officer. The seniority of these      persons will be fixed as under:- ____________________________________________________________ Senio-  Name Department   Date  of       Date of     Date of rity                      recruit-    joining in  joining in rank                      ment  as       Bombay       Bombay

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                         Asstt.       Food-       Rationing                           in the      grains      Organi-                           present     Distri-     sation                           Deptt.      bution                                       Scheme. ___________________________________________________________  1.     2.    3.          4.           5.         6. ____________________________________________________________  1.     C.   General Admn.              Department.  1.4.60       18.5.65     1.3.1966  2.     D.   General Admn.              Department.  1.5.60          -          1.7.67     3.                        B.               Revenue     &                                                      Forests              Department   1.5.61          -        22.8.1966          4.                   A.               Revenue     &                                                      Forests              Department   1.5.62       18.10.64     1.3.1966                                                     (Date of                                                      merger) ____________________________________________________________      By State  Government’s Resolution  dated July 25, 1968, various posts  that existed  in the  former CFD were equated with posts in the BRO in the manner indicated therein. Items 9 to  11 in  the Table appended to the said Resolution dealt with the  posts of  Deputy Chief  Supply Inspectors,  Supply Inspectors and Senior 83 Clerks, respectively  in the CFD. All those Three categories of  posts   were  equated   with  the   posts  of  Rationing Inspectors/Senior Clerks in the BRO on Rs. 160-10-220-EB-10- 270 despite  the fact  that in  the CFD the pay scale of the post of  Deputy Chief  Inspector was a higher post than that of Supply  Inspectors and  Senior Clerks  and it  carried  a higher pay scale.       By  a  Resolution  dated  July  29,  1968,  the  State Government of  Maharashtra promulgated the Recruitment Rules for non-gazetted  posts in  the  establishment  of  the  BRO specifying also  the method  of appointment  to the  various posts  in   the  said   organisation.  Under   these  Rules, appointments to  the  category  of  Senior  Clerks/Rationing Inspectors in  the BRO  were to  be made either by promotion from among  Clerks, Clerks-typists,  Typists etc.,  who  had worked as  such for  not less than two years, or by transfer of General  Duty Clerks from the Secretariat Departments and the offices  of Heads  of Departments with not less than two years of  service in  the cadre. Obviously, the first of the two alternative  methods aforementioned  would get attracted only when  persons already working in the BRO as Clerks were to be  appointed as  Senior Clerks/Rationing Inspectors. The other alternative  provided was  to fill  up the  vacancy by transfer of Clerks working in the Secretariat Departments or in the offices of the Heads of Departments who possessed not less than two years of service.      On  May   28,  1971,  a  Gradation  List  of  Rationing Inspectors, Senior  Clerks and Deputy Accountants working in the BRO  as on April 1, 1968 was published by the Controller of Rationing. It was expressly recited therein that the said List had  been drawn  up in  accordance with  the  seniority principles enunciated  in the  Government  Resolution  dated March 22,  1968. It was also stated that while preparing the said list,  the inter  se seniority  of the ex-CFD personnel had been  kept in  tact except  in the case of those who had been working in the CFD on deputation from other Departments and offices  in respect of whom the seniority had been fixed

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according to  their position  inter  se  in  the  respective former Departments  and offices  from which  they  had  been drawn on  deputation A  specific direction  was contained in paragraph 3  of the  order that  copies of  the  said  order should be  exhibited on the Notice Boards in the Head office of the  BRO, all  the Regional  offices as  well as  in  the Rationing offices,  and the  signatures of all the employees working in  the respective  offices should  be  taken  in  a separate copy 84 of the  order which  should be  kept on  the record  of  the respective offices.  It was further ordered that a report to the effect  that the  Gradation List had been brought to the notice of  all the  persons concerned should be forwarded to the Assistant Controller of Rationing, (EST), Head office in his personal name on or before June 10, 1971.      Subsequently, a  final Gradation  List as  on April  ], 1968  was  also  published  with  a  similar  direction  for bringing it  to the  notice of  all the persons borne on the establishment of  the BRO.  Still later,  on April 9, l 973, another provisional  Gradation List of Rationing Inspectors, Senior Clerks and Deputy Accountants as on April 1, 1972 was published with a like direction that it should be brought to the notice of all the persons borne on their establishment.      By Resolution  dated March  1, 1974,  the Government of Maharashtra took  note of the fact that during the course of the n  previous few years a number of candidates who had not been selected  by the  Public Service Commission had come to be recruited  temporarily to  the posts  of Clerks, Typists, Stenographers,  Assistants,   etc.  pending   allotment   of candidates selected by the Public Service Commission, and it was directed that since many of such temporary employees had put in  several years  of service,  they may  be retained in Government service  without  being  replaced  by  candidates selected by  the Public  Service Commission,  provided  they fulfilled the following two conditions:           "(1) The  non-P.S.C. persons concerned should have                the   minimum    educational   qualifications                prescribed for  the posts  to which they were                appointed.            (2)  They were  within the  age-limits prescribed                for appointment  to the respective posts held                by  them   at  the   time  of  their  initial                appointment to such posts." It was  also specified in the Resolution that the benefit of such retention  in service  would be  applicable only to the non-P.S.C. persons, who were recruited in various Government offices prior  to January 1, 1971 and were in service on the date of  issue of  the said  order. Further,  the Resolution contained a  clear stipulation  that the  seniority of  such non-P.S.C. persons  on whom  the benefit  of continuance  of service was  thereby conferred  was to  be fixed  only  with reference to  the date  of issuance  of the said Resolution, with the 85 consequence that  P. S.  C.  selected  candidates  who  were already A  working in  the various  Departments  or  offices prior to  the said date were all to be treated as seniors in relation to  the non-P.S.C.  persons  covered  by  the  said Resolution.      On November  18, 1975,  a provisional Gradation List of Rationing Inspectors,  Senior Clerks  and Deputy Accountants of the  BRO as  on April 1, 1974 was published on a combined application of the seniority principles laid down by the BRO in the Rules dated March 22, 1968 and those laid down in the

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Resolution dated  March 1,  1974 concerning  the non  P.S.C. candidates who  were granted  the benefit  of  retention  in service under  the said Resolution. A similar Gradation List of Assistant  Rationing Officers/Junior  Accountants of  the BRO as on April 1, 1974 was also published by the Controller of Rationing on November 27, 1975.      On January  31, 1976,  respondents Nos.  I to 22 herein who were  directly recruited  in the  former CFD  as  Supply Inspectors and  had been subsequently absorbed in the BRO in the category  of Rationing  Inspectors/Senior  Clerks/Deputy Accountants, filed  a Writ Petition under Article 226 of the Constitution in  the High  Court of  Bombay - Misc. Petition No. 166176  - challenging  the legality  and validity of the aforementioned two  Gradation Lists  dated November 18, 1975 and November  21, 1975.  The main  contention put forward by them in  the writ  petition was that the impugned lists were violative  of  Articles  14  and  16  of  the  Constitution, inasmuch  as,   firstly,  the   State  Government   and  the Controller had  given a go-by to the normal rule of fixation of seniority  according to  the date  of appointment  to the post, and  secondly, unequals  had been  treated  as  equals while fixing the seniority inasmuch as the period of service rendered by  the employees  in the  clerical cadre  had been reckoned and  equated  with  the  service  rendered  in  the Rationing Inspector’s  cadre. Another plea taken in the writ petition was  that the seniority of the writ petitioners has been made  to depend  upon an  uncertain factor, namely, the seniority of  persons who  get  promoted  to  the  cadre  of Rationing Inspectors/Senior  Clerks etc.,  from time to time and this  rule which  kept  the  question  of  seniority  of employees in  a state  of flux  for all  time  to  come  was grossly arbitrary and unreasonable.      Respondents I  to 3 in the writ petition were the State of Maharashtra.  the Controller  of Rationing  and the Under Secretary to  the Government  of Maharashtra,  Food & Supply Department, 86 respectively. One hundred and sixty-two employees working in the BRO  in different  categories of posts were impleaded as respondents Nos.  4 to  165 on  the ground  that  they  were likely to  be affected  in case  the reliefs  claimed by the writ  petitioners  were  granted  by  the  High  Court.  The respondents raised  a preliminary  objection before the High Court the main attack levelled in the petition being against the validity  of the  Government Resolution  dated March 22, 1968, the  writ petition  filed after the lapse of more than seven years since the passing of the impugned Resolution was liable to be dismissed on the ground of delay and laches. It was  pointed   out  that   on  the  basis  of  the  impugned Resolution,  the   provisional  Gradation   List  had   been published on May 28, 1971 showing the seniority of personnel in the  BRO as on April l, 1968 and it had been specifically stated in  the said gradation list that it had been drawn up on the  basis of  the principles  laid down  in the impugned Government Resolution  dated March  22, 1968.  The said list had been  circulated to  all the offices attached to the BRO and signatures of all the personnel working in the different offices had  been taken  in token  of their  having seen the list. The  respondents stressed  before the  High Court  the fact that  even though  objections had  been invited against the provisional  Gradation List, none of the petitioners had filed any  objections. Subsequently,  a final Gradation List was published  on November  23, 1972, which was also brought to the  notice of the personnel working in the BRO. Reliance was also  placed by  the respondents  on the  fact that  the

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second provisional  Gradation List  based  on  the  impugned Resolution of  1968 was  published on  April 9, 1973 showing the seniority of personnel working in The BRO as on April 1, 1972 and  though writ  petitioners  1  to  3  filed  certain objections against  the said  list long after the date fixed for the  receipt of  such objections, no contention has been taken therein  objecting to  the seniority  principles  laid down in  the Government  Resolution of  1968. The objections raised by  writ petitioners  1 to  3 were  rejected  by  the Controller of  Rationing as  per  his  communications  dated December 6,  1973 and December 19, 1973. Even thereafter, no steps  were  taken  by  the  petitioners  to  challenge  the validity of  the principles  laid  down  in  the  Government Resolution. It  was urged by the respondents before the High Court  that   in  view  of  the  aforesaid  conduct  of  the petitioners, it  was not  legally open  to them  to raise  a challenge against  the said  Resolution in the writ petition filed after  eight years  and thereby  upset  the  seniority position of  personnel which  had become  settled during the course of the period of eight years and disrupt rights 87 which have  become vested in others by virtue of the various postings  and  promotions  that  have  taken  place  in  the Meantime.      On the  merits, the  respondents contended  before  the High  Court   that  the   BRO  being   a  newly  constituted organisation  with   its  personnel   drawn  from  different sources, it  was perfectly  open to  the State Government to lay down  the principles to be applied for the determination of inter  se seniority of the members of the staff belonging to the different categories. Since the new Department was to consist of  "merged Government  servants" who  were absorbed from  the  CFD,  "released  Government  servants"  drawn  on deputation from  other departments and also direct recruits, it  was   necessary  to  evolve  some  fair  and  reasonable principle for  the fixation of the inter se seniority of the integrated  personnel   in  the  different  categories.  The respondents submitted  before the  High Court that viewed in the context  of the  relevant facts  and circumstances,  the principles  laid   down  in  the  impugned  Resolution  were perfectly reasonable  and that the challenge levelled by the petitioners against  the said  Resolution and  the Gradation Lists dated  November 18,  1975 and November 27, 1975 on the ground of  alleged violation  of Articles  14 and  16 of the Constitution was wholly devoid of merit.      The writ  petition was  heard by a learned Single Judge of the  High Court and by judgment dated September 11, 1979, the petition  was allowed  and clauses (a) and (c) of rule 4 and the  proviso  to  rule  7  of  the  impugned  Government Resolution dated  March 22,  1968 were  struck down  on  the ground that they were violative of Articles 14 and 16 of the Constitution. The  Gradation Lists  dated November  18, 1975 and November  27, 1975  were also  quashed  by  the  learned Judge, and  the first  respondent-State  of  Maharashtra-was directed to  prepare a  fresh seniority  list without taking into consideration  the aforesaid provisions of the impugned Government Resolution  dated March  22, 1968  which had been struck down  and to  give consequential benefits to the writ petitioners, including increments, promotions etc.      The preliminary  objection on  the ground of laches and delay, raised  by the respondents before the High Court, was over-ruled by  the learned Single Judge by stating, firstly, that the  law with  respect to  laches did  not lay down any obligation on  the Court  to refuse  to grant reliefs merely because there  was a lapse of time since the cause of action

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arose and since the challenge against the 88 Government Resolution  was based  on the contention that the fundamental rights  of the petitioners under Articles 14 and 16 of the Constitution were violated, it was not open to the court to shut out the petitioners from putting forward their challenge against the rules on the ground of delay or laches since  such   course  would  tantamount  to  "condoning  the continuance of invalid rules or statutes." The second reason stated by  the learned  Judge for overruling the preliminary objection was  that beyond making a vague statement that the seniority list of November 23, 1972 showing the placement of the officers as on April 1, 1968 had been since followed and promotions made  on that  basis. no  factual data  had  been placed before the High Court by the respondents "to show the extent of  such promotions  and  the  manner  in  which  the promotees would be affected if the relief was granted to the petitioners". A  further ground  mentioned  by  the  learned Judge for rejecting the preliminary objection put forward on the ground  of delay  is that  by reason  of the  Resolution dated March 1, 1974 passed by the State Government directing that all  temporary employees in the clerical cadre, who had been recruited  prior to  January 1, 1971 without insistence on the passing of the Public Service Commission examination, may be  regularly absorbed in service with effect from March 1, 1974  subject to  the conditions  mentioned therein,  the final Gradation  List of  personnel in  the BRO published on November 23,  1972 has  inevitably been  upset and  hence it cannot be  said that  any rights have accrued to such of the employees in  the BRO who were assigned ranks above the writ petitioners in the impugned seniority list, so as to entitle them to put forward the objection based on laches and delay.      We may  also briefly  set out  the reasons mentioned by the learned  Judge in support of his conclusion that clauses (a) and  (c) of  rule  4  and  proviso  to  rule  7  of  the Government Resolution  dated March  22, 1968 offend Articles 14 and  16 of the Constitution. Firstly, it is stated by the learned Judge  that since  the petitioners had been directly recruited as  Supply Inspectors in the former CFD, they were in the position of direct recruits to the cadre of Rationing Inspectors in  the BRO  and the  provision contained  in the impugned  rules  for  assignment  of  deemed  dates  to  the promotees coming  from other  departments on  the  basis  of their continuous  service in  the clerical  cadre minus  two years is  against "the  normal  rule  which  determines  the seniority on  the basis  of the  dates of appointment to the post". According to the learned Judge, any 89 departure from  the "normal  rule" mentioned  by him must be justified by rational, relevant and cogent reasons and since there was  no material "to justify the enactment of the said abnormal rule  for  determining  seniority"  either  in  the impugned Resolution  itself or in the return filed on behalf of the State, the provisions contained in the impugned rules had to  be struck  down on  the ground  of  infringement  of Articles 14  and 16  of the  Constitution. The second reason stated by  the learned  Judge is  that there  is an inherent fallacy in  the attempt made by the impugned rules to equate the post  of Supply  Inspector in  the CFD  to the  posts in clerical cadres  in other departments and the impugned rules in so  far as  they provide  for the  fixation of  inter  se seniority  of   Rationing  Inspectors/Senior   Clerks/Deputy Accountants in  the BRO  by giving  credit  to  the  service rendered  by  the  "released  Government  servants"  in  the clerical cadre  in their  parent departments  subject  to  a

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deduction of two years therefrom is violative of Articles 14 and 16.  In the  opinion of  the learned  Judge, it  was not legally open  to the Government, while laying down rules for fixation  of   seniority  in   the  category   of  Rationing Inspectors/Senior Clerks,  to make  a provision  for  taking into   consideration    any   service    rendered   by   the deputationists in the lower post of Clerk and that by itself spells out  discrimination. The  learned Judge has expressed the view that in treating a clerk with two years’ service on a par  with the  Supply Inspector  of the  CFD, the impugned Resolution  has  treated  unequals  as  equals  and  thereby committed a clear breach of provisions of Articles 14 and 16 of the  Constitution. Lastly,  it was  held by  the  learned Judge that,  since under  the  provisions  of  the  impugned Resolution the  deemed date  of appointment  of  a  promotee depends upon  two factors,  namely, his  inter se  seniority amongst  the   persons  who  have  been  promoted  from  his department and  his continuous service in the clerical cadre minus two  years, it  is inevitable  that whenever  a person from some other department is taken on promotion to the BRO, the deemed date of appointment of persons drawn earlier from the same  department is  likely to  get altered and since in consequence thereof  the deemed dates of the direct recruits will also  undergo a  change, the  seniority of  the  direct recruits is  made dependant on uncertain events which has no reasonable nexus  with the  object and  purpose of the rules and the  rule has  therefore to  be struck down as arbitrary and violative  of the  principles of equality of opportunity enshrined in Articles 14 and 16 of the Constitution.      Twenty  nine  persons  belonging  to  the  category  of "released  Government   servants"  who   are   amongst   the respondents in the writ 90 petition and  whose seniority  etc., were adversely affected by the  decision  rendered  by  the  learned  Single  Judge, preferred a Letters Patent Appeal before a Division Bench of the High  Court, but  that appeal was dismissed in limine by the Division Bench, and hence they have filed this appeal in this Court after obtaining special leave.      After giving our anxious consideration to the arguments addressed by  counsel  appearing  on  both  sides,  we  have unhesitatingly  come   to  the   conclusion  that  the  view expressed by the High Court that clauses (a) and (c) of rule 4 and  the proviso  to rule  7 of  the  impugned  Government Resolution  dated  March  22,  1968  are  violative  of  the provisions of  Articles 14  and 16  of the  Constitution, is unsustainable in  law and  that the  direction given  by the High Court  to the  State  Government  to  prepare  a  fresh seniority  list   without  taking   into  consideration  the aforesaid provisions  of the  impugned Government Resolution and to  give to the writ petitioners consequential benefits, including promotions  and the  emoluments on  the n basis of such revised seniority gradation list was not called for. We are also  of opinion  that the High Court was wrong in over- ruling the  preliminary objection  raised before  it by  the present appellants  that the  writ petition  in  so  far  it sought  to   challenge  the   legality  of   the  Government Resolution dated  March 22, 1968, was highly belated and was liable to be dismissed on the ground of laches and delay.      The challenge  in the writ petition was directed mainly against the  Government Resolution  dated  March  22,  1968, which laid  down the principles for determining the inter se seniority of personnel appointed in the different categories of posts  in the  newly constituted  BRO. lt  may be assumed that the  principles enunciated  in the  said Resolution did

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not come  to the  knowledge of  the  petitioners  and  other employees of  the BRO  immediately after  the Resolution was passed by  the State  Government. But  in implementation  of those principles,  a provisional gradation list of Rationing Inspectors/Senior Clerks/Deputy Accountants of the BRO as on April 1,  1968 was  drawn up and issued by the Controller of Rationing on  May 28,  1971. Paragraph  3 of the order dated May 28,  1971 whereunder  the said gradation list was issued contained a specific direction to all the Deputy Controllers of Rationing  in the Head Office and also in the regions and to the  Rationing  offices,  to  exhibit  one  copy  of  the gradation list  together with  a  copy  of  the  said  order whereunder the  list was  issued on  their respective office Boards, use another copy for obtaining signatures of all the persons who were still borne 91 on the  establishment of the BRO and keep the third copy for the office  record. It  was directed  in the  same paragraph that "it should be seen that all the persons working in this organisation, including  those on  leave or under suspension or retired,  are informed  of their  seniority and  rank and their signatures  obtained in token thereof". In the absence of any acceptable evidence to the contrary, it is legitimate to presume that the said direction had been duly carried and that the  provisional gradation list and the order dated May 28, 1971  had  been  duly  brought  to  the  notice  of  all personnel belonging to the concerned categories then working in the  BRO. It  is important  to notice  that in  the first paragraph of  the aforesaid order dated May 28, 1971, it had been expressly mentioned that the provisional gradation list had  been   drawn  up   in  accordance  with  the  seniority principles enunciated  in the  Government  Resolution  dated March 22, 1968. Paragraph 2 of the said order also contained a brief  summary of  the principles  on which  the gradation list had  been drawn up. In paragraph 5 of the order, it was stated that  it was  open to  the persons  whose names  were included in the gradation list to make representations about the fixation  of their seniority on or before June 21, 1971, and that  representations received  thereafter will  not  be entertained on  any account.  It is to be remembered in this context that  the BRO  is a  small organisation  functioning only in  the city of Bombay. Since copies of the order dated May 28,  1971 and  the provisional  gradation list  had been circulated in  the Head office, the Regional offices and all the Rationing offices of the BRO and also shown individually to all  the members  of the  staff working  in the different offices, the  writ-petitioners must  be taken to have become fully aware  of the  principles laid  down in the Government Resolution  dated   March  22,   1968  at   least  when  the provisional  gradation  list  dated  May  28,  1968  was  so published and  circulated.  None  of  the  writ-petitioners, however, preferred  any objection  against their  ranking in the said provisional gradation list. On November 23, 1972, a final  gradation   list   of   Rationing   Inspectors/Senior Clerks/Dy. Accountants  of the  BRO as  on April 1, 1968 was published with directions for bringing the said list also to the notice  of  all  the  persons  borne  on  the  concerned categories of  the organisation.  Even after the circulation of the  said list,  the writ-petitioners  did not  file  any objections against  the ranking  given to  them in  the said list, which  was based  on the  principles enunciated in the Government Resolution  dated March  22, 1968,  nor did  they take any  steps whatever  to  challenge  the  constitutional validity of those principles, 92

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    Subsequently, another  provisional  gradation  list  of Rationing Inspectors/Senior  Clerks/Dy.  Accountants  as  on April l,  1972 was  published by the Controller of Rationing on April  9, 1973.  In that  list  also,  it  was  expressly mentioned that  it had  been drawn up in accordance with the seniority principles enunciated in the Government Resolution dated March 22,1968. This list was admittedly brought to the knowledge of the petitioners and the other personnel working in the  concerned categories  in the BRO. In the order dated April 9,  1973, whereunder  the said list was issued, it had been specified  that representations  against the  seniority and  ranking  should  be  submitted  to  the  Controller  of Rationing on  or before  May 1,  1973 and that thereafter no representations would  be entertained  on any  account.  The writ-petitioners did not file any objections within the said period. However,  writ-petitioners l  to 3 submitted certain written representations  to the  Controller of  Rationing in November, 1973,  contending that the "deemed dates" assigned to them  in the gradation list were incorrect. Even in those representations,  no   objection  was   raised  against  the principles for  determination of seniority enunciated in the Government Resolution  of 1968,  and there  was  no  protest whatever against  the provision  made in the said Resolution for  fixation  of  the  seniority  of  "released  Government servants" by  giving them  credit for  the length of regular service put  in by them as clerks in other departments minus two years.  The representations  filed by petitioners I to 3 were rejected  by the  Con troller  of Rationing  by  orders passed in  December ]973,  wherein it  was stated  that  the seniority and  ranking assigned  to them  in the provisional gradation list  could not  be altered  in view  of  the  pro visions contained  in rule 4 (a) and the provision to rule 7 of the Rules laid down in the Government Resolution of 1968. If   the    petitioners    desired    to    challenge    the constitutionality  of  Rules  contained  in  the  Government Resolution dated  November 22,  1968, they should have woken up at  least when  they received  the aforesaid replies from the Controller  of Rationing  and approached  the Court  for appropriate relief  within a  reasonable time thereafter. No such action  was taken  by them  and all  that they  did was merely  to  address  some  further  representations  to  the Secretary, Food  & Civil  Supply Department  reiterating the request made by them before the Cont roller of Rationing for alteration of their "deemed dates". Writ petitioners l l and 12  are   also  seen   to  have   submitted   some   belated representations  against   the  provisional  gradation  list complaining that  the "deemed  dates" assigned  to them were incorrect. In  those  representations  also,  there  was  no protest or objection raised against 93 the principles  laid down in the Government Resolution dated November 22, 1968.      On March  l, 1974, the Government of Maharashtra passed a  Resolution   directing  that  non-PSC  persons  who  were employed in  the Ministerial posts, namely, Clerks, Typists, Clerks-typists,  Steno-typists   and  Stenographers  in  the Secretariat Departments  and various  Government offices  in Greater Bombay,  prior to  January 1,  1971, and who were in the service  of Government  on the  date of the issue of the said Order,  should continue  in Government  service without being replaced by the candidates selected by the Maharashtra Public  Service  Commission,  provided  they  possessed  the minimum educational  qualifications prescribed  for the post to which  they were  appointed and they were also within the age limits  prescribed for  appointment  to  the  respective

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posts held  by them at the time of their initial appointment to such  posts. It was made very clear in paragraph 4 of the said order that the seniority of the non-PSC persons on whom the benefit of permanent absorption in service was conferred thereunder was  to be  fixed only with reference to the date of the said order and that all the Public Service Commission selected  candidates   who  were   working  in  the  various departments/offices prior to the date of the said Resolution would be  treated as  seniors in  relation  to  the  non-PSC persons covered  by the said order. It is manifest that this order did  not in  any way  affect the  inter  se  seniority between the  writ petitioners  and the  released  government servants  drafted   to  the   BRO  from   other   Government departments wherein they had been holding posts on a regular basis after  having passed  the  Public  Service  Commission examination. It  is also  worthy of note that the Government Resolution of 1974 was a general order applicable to all the non-PSC personnel functioning on a temporary or ad hoc basis in the Secretariat as well as the various departments of the State Government  and except  as indicated  above it did not have any special applicability to the BRO.      On November  18, 1975,  another  provisional  gradation list   of    Rationing    Inspectors/Senior    Clerks/Deputy Accountants of  the BRO as on April 1, 1974 was published by the Controller  of Rationing.  Representations were filed by writ petitioners l to 3 objecting to the ranking assigned to them in  the said provisional gradation list and it was only in those  representations that an objection was specifically taken by  them  for  the  first  time  that  the  "released" personnel from  other departments  who had been appointed in the cadre  of Rationing  Inspectors in the BRO should not be assigned seniority over them 94 since  those  persons  had  been  working  in  their  parent departments  only   in   the   capacity   of   Clerks.   The representation of writ-petitioner 1 was filed on December 3, 1975 while those of writ petitioners 2 and 3 on November 27, 1975  and   December  9,   1975.  Shortly   thereafter,  the petitioners approached  the High  Court by  filing the  writ petition on January 31, 1976.      The view  expressed by  the learned single Judge of the High Court  that a  writ petition filed under Article 226 of the Constitution,  seeking redress  on the ground of alleged infringement of  fundamental rights  cannot be  dismissed by the court  on the ground of laches, under any circumstances, is inconsistent with the pronouncements of this Court on the subject and cannot be accepted as correct or sound.      In Tilokchand  Motichand and  Ors.  v.  H.B.  Munshi  & Anr.,(1) this  Court had  occasion to deal with a contention that the right to move the Supreme Court under Article 32 of the Constitution, being a fundamental right, a writ petition filed in  the Supreme  Court under the said provision cannot be dismissed  on the ground of delay or laches, since such a course would  amount to  a denial  of a  fundamental  right. Repelling the said argument, Mitter, J. Observed thus:           "I cannot however find any merit in the contention      that because  there is  an invasion  of  a  fundamental      right of  a citizen  he can  be allowed to come to this      Court, no  matter how  long after the infraction of his      right he  applies for  relief. ’I  he  Constitution  is      silent on  this point;  nor  is  there  any  statue  of      limitation expressly applicable, but never the less, on      grounds of  public policy  I would hold that this Court      should not  lend its  aid to a litigant even under Art.      32 of the Constitution in case of a inordinate delay in

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    asking for  relief and  the  question  of  delay  ought      normally to  be measured  by the  periods fixed for the      institution of suits under the Limitation Acts.           The Limitation  Acts do  not  in  terms  apply  to      claims against  the State  in respect  of violation  of      fundamental rights.  A person complaining of infraction      of any  such rights  has one  of three  courses open to      him. He can either 95      make an  application under Art. 226 of the Constitution      to a  High Court  or he can make an application to this      Court under Art. 32 of the Constitution, or he can file      a suit asking for appropriate reliefs. The decisions of      various High Courts in India have firmly laid down that      in the matter of the issue of a writ under Art. 226 the      courts have  a discretion  and may  in  suitable  cases      refuse to give relief to the person approaching it even      though on  the merits  the applicant  has a substantial      complaint as  regards violation  of fundamental rights.      Although the  Limitation Act does not apply, the courts      have refused  to  give  relief  in  cases  of  long  or      unreasonable delay.  As noted  above in  Bhailal Bhai’s      case [1964]  6  SCR  261,  it  was  observed  that  the      "maximum period  fixed by  the legislature  as the time      with in  which the  relief by  a suit  in a civil court      must be  brought  may  ordinarily  be  taken  to  be  a      reasonable standard  by which  delay in  seeking remedy      under Art.  226 can  be measured."  on the  question of      delay, we  see no  reason to hold that a different test      ought to  be applied  when a  party comes to this Court      under Art. 32 from one applicable to applications under      Art. 226.           In my  view, a  claim based  on the  infraction of      fundamental rights  ought not to be entertained if made      beyond the  period fixed  by the Limitation Act for the      enforcement of  the right  by way  of suit.  While  not      holding that  the Limitation Act applies in terms, I am      of the  view that  ordinarily the  period fixed  by the      Limitation Act  should be taken to be a true measure of      the time within which a per son can be allowed to raise      a plea successfully under Art. 32 of the Constitution." To the  same effect are the following observations of Sikri, J. in his separate judgment in the same case:           "A delay  of 12  years or  6 would  make a strange      bed-fellow with  a direction  or order  or writ  in the      nature of mandamus, certiorari and prohibition. Bearing      in mind  the history  of these  writs I  cannot believe      that the  Constituent Assembly  had the  intention that      five Judges  of  this  Court  should  sit  together  to      enforce a  fundamental  right  at  the  instance  of  a      person, who  had  without  any  reasonable  explanation      slept over his rights for 6 or 12 years. The history of      these writs both in England and the U.S.A. 96      convinces  me   that  the   underlying  idea   of   the      Constitution  was   to  provide   an  expeditious   and      authoritative remedy against the introads of the State.      If a  claim is  barred under the Limitation Act, unless      these are  exceptional circumstances, prima facie it is      a stale  claim and  should not  be entertained  by this      Court. But  even if  it is  not barred under the Indian      Limitation Act, it may not be entertained by this Court      if on  the facts  of the  case there  is unreason  able      delay.           It is  said that  if this  was  the  practice  the

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    guarantee of  Art.  32  would  be  destroyed.  But  the      article no  where says that a petition, howsoever late,      should be  entertained and a writ or order or direction      granted, howsoever  remote the  date of infringement of      the fundamental  right. In  practice this Court has not      been entertaining  stale claims  by  persons  who  have      slept over their rights."      In Rabindra  Nath Bose  and Ors.  v. Union of India and Ors.,(1)  the   identical  question  again  came  up  to  be considered by  this Court,  and Sikri, J. speaking on behalf of the Constitution Bench, said this:           "But in  so far as the attack is based on the 1952      Seniority rules,  it must  fail on  another ground. The      ground being  that this  petition under  Art. 32 of the      Constitution has  been brought about IS years after the      1952 Rules were promulgated and effect given to them in      the Seniority  List prepared on August I, 1953. Learned      Counsel for the petitioners says that this Court has no      discretion and  cannot dismiss  the petition under Art.      32 on  the  ground  that  it  has  been  brought  after      inordinate  delay.   We  are   unable  to  accept  this      contention.           The learned  Counsel for  the petitioners strongly      urges  that   the  decision   of  this  Court  in  M/s.      Tilokchand Motichand’s (2) case needs review. But after      care fully  considering the  matter, we are of the view      that no  relief should  be given  to  petitioners  who,      without any reasonable explanation, approach this Court      under Art. 32 97      of the Constitution after inordinate delay. The highest      A  Court   in  this   land  has   been  given  original      Jurisdiction to  entertain petitions  under Art.  32 of      the Constitution.  It could not have been the intention      that this  Court would  go into  stale demands  after a      lapse of years.           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 makers 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      rights which have accrued to them. Each person ought to      be  entitled   to  sit   back  and  consider  that  his      appointment and  promotion effected  a  long  time  ago      would not  be set  aside after the lapse of a number of      years."      The same  position was  reiterated  by  this  Court  in Malcom Lawrence  Cecil D’Souza v. Union of India and Ors.(l) and again  in a very recent pronouncement of this Court in S S. Moghe  and Ors.  v. Union  of India  and ors.(2)  We  may usefully extract  the following  observations  contained  in paragraph 23  of the  judgment of  this Court  in  the  last mentioned case:           "At this  stage, it  will be  convenient to  first      dispose of  the contentions  urged by  the petitioners,      against  the   validity  of  the  promotions  given  to      respondents 8  to 67 during the period between 1968 and      1975. In  our opinion,  the  challenge  raised  by  the      petitioners against  these promotions  is liable  to be      rejected on  the preliminary  ground that  it  is  most      highly belated.  No valid  explanation  is  forthcoming

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    from the  petitioners as  to why  they did not approach      this  Court   within  a  reasonable  time  after  those      promotions were  made, in  case they  really  did  feel      aggrieved by  the said  action of  the Department  This      writ petition has been filed only in the year 1979, and      after such  a long lapse of time the petitioners cannot      be permitted to assail 98      before this  Court the  promotions that  were  effected      during the  years 1968  to 1975.  A party  seeking  the      intervention and  aid of this Court under Article 32 of      the Constitution  for enforcement  of  his  fundamental      rights, should exercise due diligence and approach this      Court within  a reasonable  time  after  the  cause  of      action arises  and if  there has  been undue  delay  or      laches on  his  part,  this  Court  has  the  undoubted      discretion to  deny him  relief (see Rabindra Nath Bose      v. Union of India,(1)      The Government  Resolution of  March 22, 1968 must have come to  the knowledge of the writ petitioners at least when the provisional  seniority  list  dated  May  28,  1971  was circulated amongst  the staff  of the  BRO.  Thereafter,  in November  1972,   a  final   Gradation  List   of  Rationing Inspectors/Senior Clerks/Deputy Accountants of the BRO as on April 1,  1968 had  been published  and the  said  list  was circulated  to  all  the  members  borne  on  the  concerned categories of  the organisation.  It was expressly stated in both the  aforesaid lists  that the ranking of personnel had been effected in accordance with the principles laid down in the Government  Resolution dated  March 22,  1968. The  writ petitioners  did   not  file   any  objections  against  the provisional  list   despite  representations   having   been invited, nor  did  they  take  any  steps  to  question  the validity of  the  final  gradation  list  or  the  seniority principles laid  down in  the Government Resolution of 1968, on the basis of which the said list had been prepared.      Still  later,   in  April   1973,  another  provisional Gradation  List   of  personnel  working  in  the  aforesaid categories was  published by the Controller of Rationing and the said  list, which  was also  drawn up in accordance with the  seniority   principles  enunciated  in  the  Government Resolution of March 22, 1968, had been admittedly brought to the knowledge of the writ petitioners. They did not file any objections against the said list within the time prescribed. And what  is more  significant is  that even  in the earlier representations filed by writ petitioners 1 to 3, which they filed in  November 1973,  no objection or protest was raised by  them   against  the   principles  for  determination  of seniority laid  down in  the Government  Resolution of 1968. The Controller of Rationing informed writ petitioners 1 to 3 in December  1973  itself  that  the  representations  stood rejected since  the seniority  and rank  assigned to them in the pro- 99 visional Gradation  List were  in strict conformity with the principles laid  down in  the Government Resolution of 1968. Even there after, the petitioners did not wake up and it was only on January 31, 1976 that they approached the High Court by filing the present writ petition out of which this appeal has arisen  seeking to  quash the  Government Resolution  of 1968 and  the Gradation  Lists  of  November  18,  1975  and November 27,  1975. The  petitioners have  not furnished any valid explanation whatever for the inordinate delay on their part in approaching the Court with the challenge against the seniority principles  laid down in the Government Resolution

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of 1968.  As already  indicated by  us, the  fact  that  the Government had  subsequently passed a Resolution dated March l,  1974  directing  the  regularisation  of  the  temporary appointments of  non-P.S.Cs. clerical  personnel working  in Ministerial posts in the different Government Departments in Greater Bombay,  has no  relevancy at all in this context of dealing with the question of delay and laches on the part of the petitioners  in taking  steps to  challenge against  the Government  Resolution  of  1968.  The  inter  se  seniority between the  petitioners and  the other  personnel regularly absorbed in  the BRO  who have  come  over  to  the  BRO  as "released Government servants" is not in any way affected by the said Government Resolution of April 1, 1974, inasmuch as it has  been expressly made clear therein that the temporary personnel who  are entitled to the benefit of regularisation thereunder were  to be  assigned seniority only on the basis that regular appointments were effected on the date of issue of the  said order.  The learned  Single Judge  of the  High Court was,  therefore, clearly in error in thinking that the passing of  the Government  Resolution of  1974 furnished  a fresh cause  of action  for the  petitioners  for  agitating their contentions regarding the invalidity of the Government Resolution of  1968. We are unable to appreciate the further reason  stated   by  the  learned  Single  Judge,  that  the respondents had  not placed  on record  any factual  data to show the  extent of  promotions made  on the  basis  of  the seniority list of 1972 and the manner in which the promotees would be  affected if  the relief  was granted  to the  writ petitioners, and  the same  we find  to be  is  based  on  a totally incorrect  approach. It  is to be noticed that there was no  dispute before  the High Court that from the date of publication of  the provisional  list of May 28, 1971, which was expressly  based on  the principles  laid  down  in  the Government Resolution of 1968, the seniority and rank of all the personnel  in concerned  categories had  been  fixed  in accordance with  the principles  laid down  in the  impugned Resolu- 100 tion. In  the counter-affidavits  filed in the High Court on behalf  of  the  State  Government  and  the  Controller  of Rationing as  well as  in the  affidavits filed by the other respondents,  it   had  been   specifically   averred   that innumerable promotions  had been  made during  the period of six years  on the  basis of seniority as fixed in accordance with the impugned rules and many officers had gone up by two or three  stages as  a result  of such  promotions. Further, there is  the  clinching  fact  that  the  writ  petitioners themselves  had   impleaded  as  many  as  162  officers  as respondents on  the ground  that they  were all likely to be affected in  case the  reliefs claimed  in the writ petition were granted.  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, ]968  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

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Government Resolution should have been dismissed.      On the merits also, we do not find any substance in the attack levelled  by the petitioners against the legality and validity of  the  seniority  principles  laid  down  in  the impugned Government  Resolution of  March 22, 1968. We shall briefly indicate  our reasons  for reaching this conclusion. The BRO  was a  totally new Department which was constituted on March 1, 1966 pursuant to the Government Resolution dated February  11,  1966.  Under  the  said  Resolution,  it  was directed that  the staff  for manning  the new  organisation should consist of:      (a)  the skeleton  staff already  sanctioned  under  an           earlier Government  Resolution dated  October  21,           1965 for  carrying out  the  preliminary  work  in           connection  with  the  establishment  of  the  new           organisation (BRO); 101      (d)    the  existing  staff  under  the  Controller  of           Foodgarins distribution, Bombay, Consisting of 384           posts which  were to  be merged  with a new Bombay           Rationing office  (BRO) with  effect from March 1,           1956;      (c)     personnel  drawn   on  deputation   from  other           departments of the State Governments; and      (d)  persons directly recruited to the BRO. Here is, therefore, a case where the staff for manning a new department has  been drawn  from four  different sources. In such a  situation, it  was inevitable  that some  reasonable principles had to be formulated for the determination of the inter se seniority of the personnel appointed to work in the different categories  of posts  in the new organisation. The entire argument  of the petitioners is based on an erroneous assumption that from the very inception they belonged to the BRO and had some vested rights with respect to seniority and rank in  the said  organisation. The  petitioners  who  were members of  the staff  of the  CFD were  taken into  the BRO along with the skeleton staff appointed under the Government Resolution  dated   October  21,   1965  and  the  "released Government servants"  etc., as  part of  the  single  scheme formulated by  the Government  for the constitution of a new department (BRO).  There is  therefore, no  substance in the contention advanced  by the writ petitioners that they stood on a  separate and  superior  footing  for  the  purpose  of seniority etc., in the new organisation. In this connection, it is  relevant to  note  that  the  writ  petitioners  were holding the  posts of  Supply Inspectors  in the CFD only on the basis  of appointments which were purely temporary. They had not been recruited through the Public Service Commission but were  given  temporary  appointments  on  the  basis  of recommendations made  by the  Employment Exchange  and their services were  terminable at  any time  without notice. Thus the position  that existed  at the  time of the formation of the BRO  was that  the writ petitioners were not holding any substantive or  regular appointments in the CFD which itself was  only   a  temporary   Department.  In   contrast,   the deputationists  who  came  over  to  the  BRO  as  "released Government servants"  were persons  who had been holding for many years Ministerial posts in other Government departments on regular basis pursuant to their recruitment by the Public Service Commission.  Under the impugned seniority rules laid down by  the Government  Resolution dated  March 22, 1968, a deputationist 102 (released  Government  servant)  ’with  two  years’  regular service as  Clerk in  other Government  departments has been

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equated with a Supply Inspector of the CFD and it is on this basis that  the inter  se seniority as between the erstwhile CFD  personnel   and  the  "released  Government  servants’’ appointed  to   a  post   of   Rationing   Inspectors/Senior Clerks/Deputy Accountants  in the  BRO is to be reckoned. In our  opinion,  the  said  equation  cannot  be  regarded  as arbitrary or  unreasonable, especially  when it is viewed in the context  of  the  factual  background  that  the  Supply Inspectors in  the CFD  were merely  temporary  hands  whose appointments were  of a  precarious nature and the functions and duties  performed by  them are  not shown  to have  been substantially different  from those discharged by the clerks in other  Government departments. The principle laid down in rule 4  (a)  that  the  seniority  of  "released  Government servants" and  merged Government  servants in  the cadres of Senior Clerks,  Rationing Inspectors  and Deputy Accountants shall be  determined with  reference to dates which shall be fixed after  deducting two years from the date of continuous service whether  officiating or permanent rendered by him in the cadre  of clerks,  typists etc., appears to our minds to be perfectly  just and  unexceptionable in the circumstances of the  case. The reasons stated by the learned Single Judge of the  High Court  for declaring  the aforesaid  rule to be arbitrary and violative of Article 16 of the Constitution do not appeal  to us  as correct  or sound.  Almost the  entire reasoning of  the  learned  Single  Judge  is  based  on  an assumption that  there is  an invariable  "normal rule" that seniority should  be determined  only on  the basis  of  the respective dates  of appointment  to the  post and  that any departure  from   the  said   rule  will   be  prima   facie unreasonable and  illegal. The  said assumption is devoid of any legal sanction. We are unable to recognize the existence of any  such rigid  or inflexible  rule. It  is open  to the rule-making  authority  to  take  a  note  of  the  relevant circumstances obtaining  in relation  to each department and determine with  objectivity and  fairness what  rules should govern the  inter se  seniority and ranking of the personnel working in  the concerned  departments and  the courts  will only  insist   that  the   rules  so  formulated  should  be reasonable, just  and equitable.  Judged by the said test of reasonableness  and   fairness,  the  action  taken  by  the Government in  equating the  clerical  personnel  which  had rendered two years regular service in other departments with the temporary  Supply Inspectors of the CFD and in directing as per  impugned rule  4 (a)  that their  inter se seniority shall be  determined with reference to the length of service calculated on  the basis of the said equation cannot be said to be in any 103 way discriminatory or illegal. We are unable to accept as 14 correct the  view expressed  by the  learned Single Judge of the High  Court that  "while fixing  the  Seniority  in  the higher post,  it is  not open to take into consideration any service rendered in the lower post and that by itself spells out discrimination  " Firstly,  it is  not correct to regard the post  of a  regular clerk  in the  other departments  as lower in  grade in relation to that of a Supply Inspector in the CFD. Further, in S.G Jaisinghani v. Union of India and O ors.,(1) this  Court has  pointed out  that in  the case  of recruitment to  a service from two different sources and the adjustment  of   seniority  between   them  a   preferential treatment of  one  source  in  relation  to  the  other  can legitimately  be   sustained  on   the  basis   of  a  valid classification, if  the differences  between the two sources has a  reasonable relation  to the  nature of posts to which

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the recruitment is made. In that case, this Court upheld the provision contained in the seniority rules of the Income-tax Service, whereby  a weightage  was given to the promotees by providing that  three years  of outstanding work in Class II will be  treated as  equivalent to two years of probation in Class I (Grade II) Service.      We may  also extract,  with  advantage,  the  following observations of  Palekar, J.,  speaking  on  behalf  of  the Constitution Bench,  in Bishan Sarup Gupta v. Union of India and ors.(2):           "There  is   no  question  in  this  case  of  any      discrimination being  made in  a service after officers      from the  sources have been brought in one cadre. It is      true that seniority is a vital element in the matter of      promotion but  that does  not mean  that  allotment  of      seniority by  rule, relative  to recruitment,  involves      any classification  for the  purposes of promotion. The      argument that  the promotees and direct recruits became      one class  immediately on entry and, there after, there      could  be  no  classification  between  them  does  not      disclose the  correct approach to the problem of fixing      inter se seniority between them. When recruits from two      sources have come into a service it is essential to fix      inter se  seniority for  a proper  integration  of  the      cadre. Therefore,  it is really a case of adjustment of      seniority between  the recruits  and does not amount to      making a  classification after  their absorption in one      service." 104      A comparison of the pay scales of the Supply Inspectors in CFD  with that  of Clerks  in the other departments shows that though  the clerks  started with  a lower salary, their pay scale  reached a  much higher  level than  that  of  the Supply Inspectors  It is  also relevant  to notice  that the next  promotion  post  available  to  the  clerks  in  other Government  departments   from  where   they  had   gone  on deputation to the BRO was that of Assistant or Head Clerk in the Grade  of Rs.  200-450 or  Rs. 200-300,  while the  next promotion post  of Supply  Inspector in  the former  CFD was that of  an Assistant Zonal officer in the Grade of Rs. 200- 300. Further  the post  of Assistant’ to which the Clerks in other  Government  departments  get  a  promotion  has  been declared to be equivalent to the post of Assistant Rationing officer in  the BRO which is the post immediately above that of Rationing  Inspector in  the BRO.  When all these factors are taken  into account,  it becomes  clear that the post of Supply Inspector  in the  CFD cannot  be regarded  as a post higher than  or superior  to that  of  clerk  in  the  other Government Departments. Hence, we do not find it possible to uphold the  view expressed  by the learned n Single Judge of the High Court that the seniority principle embodied in rule 4(a) treats  unequals as  equals and  that it is, therefore, violative of Articles 14 and 16 of the Constitution.      When personnel  drawn from  different sources are being absorbed and integrated in a new department, it is primarily for the  Government or  the executive authority concerned to decide as  a matter  of policy  how the  equation  of  posts should be  effected. The courts will not interfere with such a decision  unless it is shown to be arbitrary, unreasonable or unfair, and if no manifest unfairness or unreasonableness is made  out, the  court will  not sit in appeal and examine the propriety  or wisdom  of the  principle of  equation  of posts adopted  by the  Government. In  the instant  case, we have already indicated our opinion that in equating the post of Supply  Inspector in  the CFD with that of Clerk with two

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years regular  service in  the other Government departments, no arbitrary or unreasonable treatment was involved.      Clause (c)  of rule  4 which is the next provision that has been  struck down  by the  High Court merely states that the seniority  of Government servants in the cadre of Senior Clerks/Rationing  Inspectors/Deputy   Accountants  shall  be refixed in  accordance with  the  principles  laid  down  in clauses (a)  and  (b)  of  rule  4.  We  have  repelled  the challenge against clause (a) of rule 4 and no challenge has 105 been raised  by the petitioners before us against clause (b) of the  said rule.  It must  automatically follow  that  the aforesaid provision  contained in  clause (c)  of rule  4 is perfectly valid and constitutional.      That takes  us on to the proviso to rule 7 which is the only other  provision struck  down by the High Court. Clause (a) of  rule 7  lays down  that in  the case  of  Government servants taken into the BRO on release from one and the same office, their  seniority inter  se in  their  former  office shall be  maintained in  the BRO.  Clause (b)  is a  similar provision relating  to the "merged Government servants" (ex- CFD personnel).  Clause (c)  of rule  7 lays  down that  the inter se  seniority of  persons directly  recruited  in  the former CFD  organisation shall be governed by the principles set out in the Government Resolution dated April l, 1963. It is further  stated in  the said  clause that  in  regard  to persons who  were taken  to the  CFD from  one and  the same Government office/department,  they shall  take  their  rank according  to  their  inter  se  seniority  in  the  office/ department from  which they  were drawn. Thereafter, follows the impugned  proviso which  lays down that where there is a clash of  principles contained  in the Government Resolution dated April  1, 1963  with the  seniority inter  se  in  the former department,  the seniority  inter se  in  the  former Department shall  prevail. The  principles for  fixation  of inter se  seniority of personnel working in the CFD had been enunciated by  the Government  in the Resolution dated April 1, 1963. What has done under the impugned proviso is only to state that  with respect  to persons  who have  been drafted into the  CFD organisation  from one and the same Government department on  deputation basis, their inter se seniority in the former department shall not be disturbed and that to the said extent  a deviation  should be made from the principles laid down  in the Government Resolution dated April 1, 1963. We fail  to see  how the  said direction  contained  in  the impugned proviso  for preservation of the inter se seniority of deputationists  who have been drawn from one and the same Government department  to serve  the CFD  can be  said to be arbitrary or  unreasonable. It  is a  just and  whole-  some principle commonly  applied in such situations where persons from other  departments are  drafted to  serve on deputation their inter  se seniority in the parent department should be respected and preserved during the period of such deputation to the new department. We, therefore, consider that the High Court was in error in striking down the proviso to rule 7 as being violative of Articles 14 and 16 of the Constitution. 106      It now  only remains for us to examine whether there is substance  in   the  contention  put  forward  by  the  writ petitioners that  even if  the impugned seniority principles laid down  in the Government Resolution dated March 22, 1968 are to  be regarded  as valid,  the  seniority  lists  dated November 18,  1975 and November 27, 1975 have not been drawn up in  accordance with  those principles.  The  first  point urged before  us is  that the effect of clause (b) of rule 7

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is to  make the  provisions of clauses (a) and (b) of rule 4 inapplicable to  merged government  servants and  to  direct that the  seniority of the merged Government servants should be determined  only in  accordance with  the principles laid down in  the Government Resolution dated April 1, 1963. This argument is  based on a total misconception of the scope and effect of  rule 7  (b). What that rule provides is only that as between  the CFD  personnel who have been absorbed in the BRO their  inter se  seniority reckoned  on the basis of the principles contained  in  the  Government  Resolution  dated April 1, 1963 shall be preserved. In other words, the object and purpose of sub-clause (b) is limited to the preservation and maintenance  of the  pre-existing inter  se seniority as between the CFD personnel even after their absorption in the BRO and  the said  provision does  not in any way hamper the operation of  the principles  laid down  in rule  4 for  the fixation of the seniority of all the personnel including the merged Government  servants in  the respective categories in the BRO.  A careful  reading of  the provision of clause (c) and the  illustrations given  thereunder makes this position abundantly clear.  The aforesaid  contention put  forward on behalf  of  the  writ  petitioners  will,  therefore,  stand rejected.      There is,  however, some substance in the grievance put forward on behalf of the writ petitioners that in drawing up the impugned seniority lists in purported application of the principles laid  down in clause (a) rule 4, many persons who were juniors  to the  writ petitioners  in the  category  of Supply  Inspectors   in  the   CFD  have  ranked  above  the petitioners  in   the  category   of  Inspectors   /  Senior Clerks/Deputy Accountants.  There are  also instances  where persons who were working in the CFD as clerks at the time of the merger  and were appointed in the BRO as clerks but have been  subsequently   promoted  in   the  BRO   as  Rationing Inspectors/Senior Clerks/Deputy  Accountants have been shown in the  gradation list  as seniors  in relation  to the writ petitioners despite  the fact that the writ petitioners were all along  functioning as  Supply Inspectors  in the  CFD by virtue of their having been recruited to the said cate- 107 gory in that organisation. We do not find anything in rule 4 (a) which  warrants such an unfair treatment being meted out to persons  like the petitioners who were directly recruited as Supply  Inspectors in  the CFD.  Rule 7 clearly lays down that the operation of clause (a) of rule 4 is subject to the limitation specified  therein, namely,  that in  the case of merged Government  servants their inter se seniority will be preserved in tact. Hence, no person who was functioning as a junior in  relation to  the writ petitioners in the category of Supply Inspectors in the CFD can be assigned seniority or rank above  the writ-petitioners  in the  cadre of Rationing Inspectors/Senior  Clerks/Deputy  Accountants  in  the  BRO. Similarly, no  person who  has been  taken into the BRO as a clerk from  the CFD  can under  any circumstances  be placed above  the   writ  petitioners  in  the  gradation  list  of Rationing Inspectors/Senior Clerks/Deputy Accountants of the BRO. It  is  clear  from  the  averments  contained  in  the counter-affidavit filed  on behalf  of the  State Government that  the   aforesaid  principle  has  been  violated  while preparing the  two impugned  gradation lists  dated November 18, 1975 and November 27, 1975. The explanation given in the counter-affidavit for  adopting the  said  course  does  not appear to  us to  be acceptable or sound. It was pointed out by the  counsel for  the respondents (writ petitioners) that Exhibit ’A’ produced along with the counter-affidavit of the

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first respondent  herein shows  that as  many as 30 persons, who had  joined the  BRO as  Clerks  and  were  subsequently promoted as Rationing Inspectors, have been shown as seniors in relation  to the  writ petitioners  in the gradation list dated November  18, 1975.  Similarly, Exhibit  ’B’ gives the names and  particulars of  persons  who  were  appointed  as supply Inspectors  in the  CFD subsequent to the appointment of the  petitioners, but who have nevertheless been shown in the  impugned   gradation  list   as  seniors  to  the  writ petitioners in  the corresponding  cadre in the BRO. We have already made  it clear that on a combined reading of rules 4 and  7  of  the  impugned  seniority  rules,  the  inter  se seniority of the CFD personnel has to be strictly maintained in tact, and that no person who was junior in the CFD in the category of Supply Inspector can go above his senior in that (Organisation after being absorbed in the BRO, and also that no person  who has  been taken  as a clerk in the BRO can go above persons  absorbed therein in the category of Rationing Inspectors.      In the  light of  what we have said above, the impugned seniority lists  in so  far as  they have  been drawn  up in devitation from  the legal position explained above call for immediate revision. We 108 would accordingly  direct respondents  23 and  24 (State  of Maharashtra and  the Controller  of  Rationing,  Bombay)  to revise the  two  impugned  seniority  lists  and  refix  the ranking assigned  to the  writ petitioners and others in the light of what we have said in this judgment.      In  the   result,  this  appeal  is  allowed  and  the- judgments  of  the  High  Court  are  set  aside.  The  writ petition-Misc. Petition  No. 166  of 1976-is allowed only to the limited  extent of  the aforesaid  direction  issued  to respondents 23 and 24 for revision of the impugned seniority lists and  it is  dismissed in  other respects.  The parties will bear their respective costs. P.B.R.                                       Appeal allowed. 109